State v. Kamps5/13/2003
trial statements of Mr. Pourier. Although Mr. Kamps generally complains about the admission of pretrial statements of 'key' witnesses, his argument focuses solely on Mr. Pourier and we limit our analysis accordingly.
We review a trial court's evidentiary rulings for abuse of discretion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The trial court abuses its discretion if it is exercised on untenable grounds or for untenable reasons. Id. 'Alternatively, the Court considers whether any reasonable judge would rule as the trial judge did.' Id. (citing State v. Nelson, 108 Wn.2d 491, 504-05, 740 P.2d 835 (1987)). The rules of evidence guide the trial court's evidentiary discretion. State v. Atsbeha, 142 Wn.2d 904, 913, 16 P.3d 626 (2001).
Mr. Kamps contends the State did not lay a proper foundation under ER 804(a)(3). That rule does not apply as it concerns unavailable witnesses. We apply ER 803(a)(5), which permits a recorded recollection for witnesses who previously remembered the subject matter but could not remember at the time of trial. The State established Mr. Pourier gave a more detailed statement to the police after the shooting. But the subsequent effects of his injuries and surgeries left him with a damaged memory. Consequently, at trial, Mr. Pourier could no longer recollect events happening immediately before and during the shooting. The recording filled those blank spots in his memory. Hence, the recording was admissible under ER 803(a)(5).
B. Charging Document
The issue is whether the charging document alleging first degree assault was constitutionally deficient because it failed to allege actual infliction of great bodily harm.
'The Sixth Amendment to the United States Constitution and article I, section 22 (amend. 10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and non-statutory, so as to inform the defendant of the charges against him and to allow him to prepare a defense.' State v. Phillips, 98 Wn. App. 936, 939, 991 P.2d 1195 (2000) (citing State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991); State v. Ralph, 85 Wn. App. 82, 84, 930 P.2d 1235 (1997)). 'Therefore an accused has a protected right, under our state and federal charters, to be informed of the criminal charge against him so he will be able to prepare and mount a defense at trial.' State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000) (citing State v. Bergeron, 105 Wn.2d 1, 18, 711 P.2d 1000 (1985)).
If the defendant challenges the information after the State has lost its opportunity to amend it, the reviewing court construes the charging document liberally. Phillips, 98 Wn. App. at 940-43; see also Kjorsvik, 117 Wn.2d at 103. The liberal Kjorsvik standard discourages 'sandbagging,' the potential defense practice of remaining silent in the face of a constitutionally defective charging document because a timely challenge will merely result in the State amending the information to cure the defect. Kjorsvik, 117 Wn.2d at 103; Phillips, 98 Wn. App. at 940; see also 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure sec. 19.2, at 442 n.36 (1984).
Here, the liberal standard of review applies. Hopper, 118 Wn.2d at 155; Kjorsvik, 117 Wn.2d at 103. Consequently, we apply a two-prong analysis: '(1) do the necessary facts appear in any form, or by fair construction can they be found, in the document; and if so, (2) can the defendant show he or she was nonetheless actually prejudiced by the inartful language.' McCarty, 140 Wn.2d at 425 (citing Kjorsvik, 117 Wn.2d at 105-06). 'If the necessary elements ar
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