Kreck v. Spalding (721 F.2d 1229, 1983)

HATFIELD, District Judge.

Appellant seeks reversal of the judgment of the District Court for the Eastern District of Washington granting the appellee a Writ of Habeas Corpus and vacating the conviction of the appellee for second degree felony murder. The appellant, State of Washington (hereinafter the “State”), raises on appeal the issues of (1) whether or not the information by which the appellee was charged is sufficient to sustain the appel-lee’s conviction for second degree felony murder, and (2) whether the failure of the appellee to attack the sufficiency of the information prior to trial barred federal habeas relief.

FACTUAL BACKGROUND

Appellee, Charles Kreck, was convicted of second degree felony murder after a non-jury trial in Superior Court for Spokane County, Washington. The Washington Court of Appeals reversed the conviction. On petition of the State, the Washington Supreme Court reversed the decision of the Court of Appeals, affirming the trial court’s decision. State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975).

Kreck filed a petition for collateral review with the Washington Court of Appeals, which was denied on August 12,1977.

In September of 1977, Kreck filed a petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of Washington. Having concluded that Kreck had exhausted the remedies available to him under Washington law, the District Court appropriately reviewed the merits of the petition. On July 30, 1980, the District Court granted Kreck’s petition, by vacating the judgment of the trial court, upon the ground that the information with which Kreek was initially charged was constitutionally defective.

The conviction of Kreck was based on the felony murder statute of the State of Washington under which a person may be found guilty of murder in the second degree if, while he is engaged in a felony, he kills another human being. Under Washington law, second degree assault is a felony. Section 9.01.020 Revised Code of Washington (hereinafter “RCW”). Thus, a killing in the course of the commission of a second degree assault can serve as the basis for a second degree felony murder conviction. The second degree assault statute, in turn, sets forth seven situations in which conduct by a defendant constitutes second degree assault.

Kreck, in his petition for Writ of Habeas Corpus before the federal district court, contended that the information filed by the State failed to specifically set forth which subsection of the second degree assault statute he violated. Kreek contended this failure deprived him of due process of law.

The State countered by contending that the inclusion of the term “chloroform” in the information necessarily limited the violation to subsection 2, § 9.11.020, RCW. As such, the State maintained, the information sufficiently apprised Kreck of the charge he would have to be prepared to meet (i.e., second degree murder during the commission of a felony, namely, second degree assault by administering chloroform). Although the State acknowledges that, to prove second degree assault under subsection 2 of the statute, the chloroform must be used in the commission of another crime and that no underlying crime was identified in the information, the State contends that such identification was not required and, moreover, that an underlying crime, burglary, was proven by the facts adduced at trial.

The federal district court, apparently accepting the State’s proposition that the violation was limited to subsection 2 of the second degree assault statute, still found the information fatally defective on two grounds. First, the court held that the information failed to allege two of the essential elements of the second degree assault charge (i.e., that the conduct of Kreck (1) enabled and assisted him to (2) commit any crime). Second, the court held that the information failed to identify the specific “any crime” (i.e., burglary) which was assisted by the second degree assault. Noting that the resolution of the question of the sufficiency of any information presents a practical question which is to be answered by a practical inquiry, the federal district court concluded that under federal law, the information at issue was fatally defective since it did not give Kreck adequate notice of the charges against him to enable him to adequately prepare his defense. Accordingly, the district court concluded that the Washington Supreme Court improperly affirmed a conviction for an offense which was not sufficiently charged. Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979).

DISCUSSION

I. Sufficiency of the Information

Resolution of the question of whether the information at issue is sufficient to satisfy the prescriptions of the due process clause of the fourteenth amendment must begin with an analysis of what is required in order for a charging document to meet the precepts of fundamental fairness upon which the due process clause is bottomed. The requirement that any charging document must furnish a defendant with a sufficient description of the charge against him has long been recognized to serve a dual function, namely (1) to enable the defendant to adequately prepare his defense and (2) to enable him to plead double jeopardy against a second prosecution. It is the former of these functions with which resolution as to the sufficiency of the charging instrument at issue lies, and upon which the decision of the federal district court which we are asked to review was founded.

We agree with the conclusion of the federal district court that the information was in fact insufficient in that it failed to serve the function that the law intended it to, namely, providing Kreck with adequate notice of the charges against him so as to enable him to prepare his defense.

The practical inquiry mandated by Williamson v. United States, 310 F.2d 192 (9th Cir.1962), leads to the inescapable conclusion that the failure to set forth the “any crime” on which the second degree assault under subsection 2 was founded prejudiced Kreck in the preparation of his defense. The principle of fundamental fairness, essential to the concept of due process of law, dictates that the defendant in a criminal action should not be relegated to a position from which he must speculate as to what crime he will have to meet in defense.

The State seeks to impress upon this court that to require the inclusion in the information of the underlying crime on which the second degree assault is founded would institute a return to code pleading which was abolished by the Washington legislature in 1881. Section 10.01.030, RCW. In essence, the State maintains that to require it to set forth the underlying crime is to require it to allege a matter of proof. We concur with the trial judge of the district court in rejecting this contention as merely begging the issue at hand. The simplification of the technical requirements of common law pleading was not intended to force a defendant to trial without informing him of the crime charged against him. We cannot accept the proposition that his attempt to simplify the rules of pleading was in any way intended to undermine the fundamental rights of a criminal defendant.

Support for this conclusion, that a defendant facing a second degree murder charge which rests upon a second degree assault must be notified of the underlying crime on which the second degree assault is founded, is provided by the Washington Supreme Court. In evaluating the state’s second degree assault statute in State v. Royse, 66 Wash.2d 552, 403 P.2d 838 (1965), that court held that a defendant charged with second degree assault under subsection 6 of the statute, § 9.11.020(6), RCW, which like subsection 2 involves intent to commit an underlying crime, must be made aware of the underlying crime on which the assault is founded. It cannot be credibly argued, as the State attempts to do in the present case, that the State may forgo this requirement when second degree assault is utilized in conjunction with the felony murder rule.

Although the federal district court’s conclusion that the information in question was defective should be affirmed, on the basis set forth in the above discussion, we feel compelled to comment on the State’s proposition (which was accepted by the federal district court) that the inclusion of the term “chloroform” in the information necessarily limited the violation at issue to subsection 2 of the second degree assault statute, § 9.11.020, RCW. Analysis of the second degree assault statute reveals that the information as presented could arguably stand for the proposition that the defendant’s violation fell within the purview of either subsection 1 or subsection 2 of that statute. As such, Kreck was presented with the dilemma of preparing a defense to the second degree assault upon which the felony murder was founded without knowing whether the State would proceed on the theory that the second degree assault was founded on the “intent to injure” under subsection 1 or “to enable or assist himself ... to commit any crime” under subsection 2. To allow the State to charge in such nebulous terms and proceed to trial on either of these theories would in itself be violative of the principle of fundamental fairness on which due process of law is bottomed. The practical inquiry as to the sufficiency of the information, as mandated by Williamson, supra, reveals that on this basis alone, Kreck would not have received the requisite notice to adequately prepare his defense. The information simply failed to adequately notify Kreck of the charge he should have been prepared to meet.

II. Procedural Default

Charles Kreck was convicted on the basis of a constitutionally repugnant charging instrument. Nonetheless, the State contends that Kreck is barred, under the principle of waiver as espoused in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), from obtaining federal habeas review via 28 U.S.C. § 2254.

Kreck first challenged the sufficiency of the information in his direct appeal to the Washington Court of Appeals. See State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975). The issue was subsequently presented, without success, to the Washington Supreme Court. See State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975). Kreck again raised the issue of sufficiency, but to no avail, in his petition for collateral review. The Washington Court of Appeals specifically relied on the fact that the Washington Supreme Court had addressed and disposed of the sufficiency of the information issue in Kreck’s direct appeal when it denied his collateral petition. In the Matter of Kreck, No. 2465 — III (Wash.App. decided August 12, 1977). The District Court concluded that Kreck had exhausted his state remedies on this question. Finally, both parties have now expressly agreed in submissions to this court that Kreck challenged the constitutional sufficiency of the charging instrument in every available state appellate forum.

The dissent, arguing that Kreck failed to raise the sufficiency of the information issue in his state appeals, looks only to ambiguous language in the Washington Courts’ published opinions and ignores what the record before us shows Kreck raised and the state courts considered. The dissent is therefore factually mistaken when it asserts that Kreck is challenging the sufficiency of the information for the first time in these proceedings. We are acutely aware of the rule espoused by this court that a state cannot concede exhaustion. Jackson v. Cupp, 693 F.2d 867 (9th Cir.1982). The present situation, however, is distinct from the bare concession made by the state in Jackson. The record in this matter substantiates the conclusion that the Washington Supreme Court was presented with a fair opportunity to rule on the merits of Kreck’s claim regarding the sufficiency of the information. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1970); Cartwright v. Cupp, 650 F.2d 1103 (9th Cir.1981), cert. denied, 455 U.S. 1023, 102 S.Ct. 1722, 72 L.Ed.2d 142 (1982).

The State asserts that Washington’s contemporaneous objection procedure, at the time of Kreck’s trial, required that challenges to the sufficiency of a charging instrument be made at the trial level. The failure of Kreck to challenge the information with which he was charged, the State submits, represents an “independent and adequate” state ground for the state court judgment against Kreck, as recognized by the United States Supreme Court in Sykes. 433 U.S. at 86-87, 97 S.Ct. at 2506-2507. We disagree.

The rationale of Sykes is premised on comity and respect for the function of procedural rules in our judicial system. 433 U.S. at 88-90, 97 S.Ct. at 2507-2508. Accordingly, “... if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); see also Maxwell v. Sumner, 673 F.2d 1031 (9th Cir.), cert. denied, — U.S. —, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982). Restated, if a particular state has no clear policy barring review of constitutional claims not previously asserted, the rule of Sykes is simply inapplicable, since the principles of comity and finality, on which the rule is bottomed, are not fostered by federal non-intervention.

On two occasions, this court has rejected a state's invocation of the Sykes rule, upon the ground that the state procedural policy at issue did not qualify as an “independent and adequate” state ground for denying a federal habeas petitioner’s claim. See Maxwell v. Sumner, supra; Quigg v. Crist, 616 F.2d 1107 (9th Cir.), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150 (1980). We are again presented with a situation where a state’s reliance on the Sykes rule is misplaced.

We conclude that there is no support either in the law of Washington or the history of this litigation for an inference that the Washington courts decided Kreck’s constitutional claim on an independent and adequate state procedural ground that would bar federal intervention via 28 U.S.C. § 2254. Washington has no clear contemporaneous objection policy that applies in this case.

We agree with the conclusion of the District Court in this matter, that the procedural rules of the State of Washington do not mandate that constitutional challenges to the sufficiency of a charging instrument be made before trial. Rather, Washington’s contemporaneous objection procedure, at the time of Kreck’s trial, allowed for errors of constitutional dimension to be raised on appeal even though they were not brought to the attention of the trial court. Section 7.36.130(1), RCW; Rule § 2.5(a) of The Rules of Appellate Procedure of the State of Washington (“a party may raise the following claimed errors for the first time in the appellate court: ... (3) manifest error affecting a constitutional right”). Our conclusion, in this respect, is clearly in accord with the decisional law extant in the State of Washington on this subject. See In re Myers, 91 Wash.2d 120, 587 P.2d 532 (1978), cert. denied sub nom. Myers v. Washington, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979) (“In cases on direct appeal, we have uniformly reviewed questions of constitutional dimension even though they were not raised at trial”; 587 P.2d at 534); State v. Ruzicka, 89 Wash.2d 217, 570 P.2d 1208 (1977) (because constitutional questions existed, Washington Supreme Court could hear a claim even though it was not raised at trial; 570 P.2d at 1210); see also State v. Rhinehart, 92 Wash.2d 923, 602 P.2d 1188 (1979); State v. Peterson, 73 Wash.2d 303, 438 P.2d 183 (1968).

Moreover, the Washington Supreme Court, in accordance with the foregoing statutory and decisional law, addressed the merits of Kreck’s contention regarding the sufficiency of the information at issue, rather than disposing of the issue on procedural grounds.

The case falls squarely within the purview of the decision of the United States Supreme Court in Ulster County v. Allen, supra, and this court’s decision in Quigg v. Crist, supra. Accordingly, we reject the State’s invocation of the Sykes rule.

III. Remaining Issues Raised

In addition to the issues raised by the State, the briefs submitted to this court by the respondent and amicus curiae have addressed extensively the propriety of (1) the second degree felony murder statute, § 9.48.040, RCW, of the State of Washington and (2) the admission of hearsay evidence pursuant to the business records exceptions, which evidence goes to the heart of crucial issues on trial.

Since the federal district court’s decision must be affirmed on the basis of the inadequacy of the information at issue, this court need not and should not address those constitutional issues. Life Insurance Co. of North America v. Reichardt, 591 F.2d 499 (9th Cir.1979); Taylor v. United States, 320 F.2d 843 (9th Cir.1963).

AFFIRMED.

. The Washington Court of Appeals reversed on the ground that the defendant’s constitutional right to confront the witnesses against him under the sixth amendment to the United States Constitution had been violated. State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975).

. The petition asserted three grounds:

1. The information did not adequately inform the petitioner of the charge, thus depriving him of due process of law.

2. The admission of a laboratory report blocked the defendant’s statutory and constitutional right of confrontation.

3. The felony murder statute of the State of Washington which allows the utilization of second degree assault as the underlying felony in a second degree felony murder is unconstitutional.

. It should be noted that the Washington legislature adopted a new criminal code, effective July 1, 1976. 1975 Wash.Laws §§ 9A.04.010 et seq. That code is codified in Title 9A of the Revised Code of Washington. All references in this opinion, however, are to the code in effect and therefore applicable to Kreck’s trial in 1973. The felony murder statute in effect in 1973 provided inter alia:

RCW § 9.48.040 MURDER IN THE SECOND DEGREE. The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when—

(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or

(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in RCW § 9.48.030.

Murder in the second degree shall be punished by imprisonment in the state penitentiary for not less than ten years.

. RCW § 9.11.020 ASSAULT IN THE SECOND DEGREE. How punished. Every person who, under circumstances not amounting to assault in the first degree—

(1) With intent to injure, shall unlawfully administer to or cause to be taken by another, poison or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or

(2) With intent thereby to enable or assist himself or any other person to commit any crime, shall administer to, or cause to be taken by, another, chloroform, ether, laudanum or any other intoxicating narcotic or anesthetic; or

(3) Shall wilfully inflict grievous bodily harm upon another with or without a weapon; or

(4) Shall wilfully assault another with a weapon or other instrument or thing likely to produce bodily harm; or

(5) Being armed with a deadly weapon shall wilfully assault another with a whip; or

(6) Shall assault another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court officer, or the lawful apprehension or detention of himself or another person; or

(7) While hunting any game or other animals or birds, shall shoot another;

Shall be guilty of assault in the second degree and be punished by imprisonment in the state penitentiary for not more than ten years or by a fine of not more than one thousand dollars, or by both.

. The information contained the following language:

Comes now the Prosecuting Attorney in and for Spokane County, Washington, and charges the defendant, Charles Kreck, with the crime of Second-Degree Murder, committed as follows: That the defendant, Charles Kreck, in the County of Spokane, State of Washington, on or about the 14th day of June, 1971, then and there being, did then and there wilfuly and unlawfully, without excuse or justification, and while engaged in the commission of the crime of Assault in the Second Degree, make an assault upon Jacosa Kreck, and did administer to, and cause to be taken by, the said Jacosa Kreck, chloroform, and as a result thereof the said Jacosa Kreck did then and there, and on or about the 14th day of June, 1971, die.

. The Washington Supreme Court in addressing the defendant’s contention that the State failed to prove the crime charged, held that the State did in fact prove the crime of second degree burglary.

. Williamson v. United States, 310 F.2d 192 (9th Cir.1962).

. The constitutional sufficiency of an information is determined under federal law. Paterno v. Lyons, 334 U.S. 314, 320, 68 S.Ct. 1044, 1047, 92 L.Ed. 1409 (1948).

. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Gordon, 641 F.2d 1281 (9th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156 (1981); United States v. Bohonus, 628 F.2d 1167 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980); United States v. Cecil, 608 F.2d 1294 (9th Cir.1979).

. See footnote 4, supra.

. See footnote 9, supra.

ALARCON, Circuit Judge,

dissenting.

I respectfully dissent.

My colleagues have concluded that a state prisoner who failed to make a contemporaneous objection before the appropriate state court as to the sufficiency of the information, or to exhaust his state remedies, may nevertheless raise that issue for the first time in a federal habeas corpus proceeding. It is my view that the majority’s conclusion is in clear conflict with the decision of the United States Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Ex Parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1885). For the reasons set forth below, I would reverse the judgment under compulsion of Wainwright v. Sykes and Ex Parte Royall, and remand this matter to the district court for a determination of the remaining issues raised in the petition which have not been considered on their merits by that court.

DISPOSITIVE FACTS

Charles Kreck was charged on June 25, 1971 with the crime of second degree murder allegedly committed on June 14, 1971. After his arrest petitioner was found to be incompetent to stand trial and was confined to a state mental institution for over two years until it was determined that he was competent to stand trial.

At oral argument before this court, petitioner’s trial counsel advised us that he waived trial by jury because he believed that the uncontradicted evidence would show that his client “did not realize or could not understand the consequences of his act nor the criminality of his acts.” We were also told that the defense strategy was “primarily” directed at convincing the trial judge that Kreck was insane at the time of the commission of the offense and should therefore escape punishment. According to petitioner’s counsel, his whole case was “shot” when the state trial judge accepted the credibility of Dr. Levy that Kreck “knew right from wrong ...” in spite of the fact that the witness never examined Kreck.

No challenge was made to the sufficiency of the accusatory pleading before the Washington trial court at any time prior to the entry of judgment.

Petitioner appealed the judgment of conviction to the Washington Court of Appeals. That court reversed on the ground that petitioner’s sixth amendment right to confrontation was denied to him. State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975). The Supreme Court of Washington granted the state’s petition for review of the order of the Court of Appeals. The Supreme Court reversed the Court of Appeals thereby affirming the judgment of conviction. State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975). In his state appeals, petitioner failed to challenge the sufficiency of the information.

The majority states that “Kreck first challenged the sufficiency of the information in his direct appeal to the Washington Court of Appeals. See State v. Kreck, 12 Wash.App. 748, 532 P.2d 285 (1975).” (emphasis added). (Page 1234). This statement is both baffling and without foundation. The majority has failed to cite the page in the Washington Court of Appeals decision where this challenge is discussed. I have read the decision of the Washington Court of Appeals with considerable care. Nowhere in that opinion is there any reference to a challenge by Kreck to the sufficiency of the information. Kreck’s contention before the Washington Court of Appeals was that “the state failed to prove the crime of second-degree assault as defined in R.C.W. 9.11.020(2).” (emphasis added). 532 P.2d at 289. The majority next tells us that “[t]he issue was subsequently presented without success to the Washington Supreme Court. See State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975).” (Page 1234). Without further discussion, or appropriate quotation from the Washington Supreme Court’s opinion, we are again asked to read the opinion, to assure ourselves that this issue of the sufficiency of the information was raised. As directed by the majority, I have read the opinion of the Washington Supreme Court. I find no reference to any contention by Kreck that the information was insufficient. Instead the Washington Supreme Court notes that the “[defendant contends that the state failed to prove the crime charged of second degree murder, defined in R.C.W. 9.48.040(2) (felony murder).” (emphasis added). Id. 542 P.2d at 788.

The only conclusion one can fairly draw from reading the opinions of the Washington courts is that in his direct appeals, Kreck challenged the sufficiency of the evidence and not the sufficiency of the information.

The majority further advises us that “Kreck again raised the issue of sufficiency, but to no avail, in his petition for collateral review.” (Page 1234). This time we are referred to an unpublished order or opinion and advised that “the Washington Court of Appeals specifically relied on the fact that the Washington Supreme Court had addressed and disposed the issue of the sufficiency of the information issue in Kreck’s direct appeal when it denied his collateral petition.” (Page 1234). (emphasis added).

As is apparent from the published opinions of the Washington Supreme Court and the Washington Court of Appeals, Kreck did not raise the issue of the sufficiency of the information on direct appeal. (I have appended both opinions at the end of this dissenting expression for the convenience of any reader of these words.) Furthermore, he did not seek further review before the Washington Supreme Court of the clearly erroneous legal conclusions which my colleagues tell us are set forth in the unpublished order or opinion of the Washington Court of Appeals.

The majority, having read an earlier draft of this dissenting expression states: “[T]he District Court concluded that Kreck had exhausted his state remedies on this question.” (Page 1234). The majority does not, however, point to any facts in the record which support the district court’s legal conclusion. The reason for this omission is clear. There are no facts in the record which establish exhaustion.

After reading the majority opinion, I can only surmise that my colleagues have simply confused a challenge to the legal sufficiency of the proof presented at trial to show the commission of a crime, with a due process attack on the adequacy of the pleadings, to give an accused fair notice of the charges against him. These issues have about as much in common as eggs and bananas. We have not been referred to any authority which would support the remarkable theory that these discrete questions are in fact identical.

CHALLENGE TO SUFFICIENCY OF ACCUSATORY PLEADINGS UNDER WASHINGTON LAW

It has long been the law of the State of Washington that the sufficiency of an indictment may not be challenged for the first time on appeal. The Washington Supreme Court has stated the rule in that state as follows: “Under our uniform holding, the sufficiency of the information cannot be raised for the first time in this court.” State v. Piper, 194 Wash. 194, 77 P.2d 779 (1938).

Washington provides three separate procedural remedies for attacking the sufficiency of an information.

One. Bill of Particulars

Under Criminal Rule 2.1(e) a defendant may make a motion for a bill of particulars “before arraignment or within ten days after arraignment or at such later time as the court may permit.” Wash.Super.Ct.Cr.R. 2.1(e).

An objection to the sufficiency or definitions of an accusatory pleading must be made before trial commences. If such a motion is delayed until the beginning of trial, it is untimely. State v. Thomas, 73 Wash.2d 729, 440 P.2d 488, 491 (1968).

Two. Demurrer

In Washington, a defendant may demur to an indictment or an information:

“[Wjhen it appears upon its face either (1) That it does not substantially conform to the requirements of this code; (2) [That] more than one crime is charged; (3) That the facts charged do not constitute a crime; (4) That the indictment or information contains any matter which, if true, would constitute a defense or other legal bar to the action.” Wash.Rev.Code Ann. § 10.40.110.

A demurrer must be made prior to the entry of a plea. A demurrer to the sufficiency of an indictment is untimely if made after the entry of a plea of not guilty. State v. Speer, 36 Wash.2d 15, 216 P.2d 203, 207 (1950); State v. McBride, 72 Wash. 390, 130 P. 486, 488 (1913).

Three. Motion in Arrest of Judgment

A defendant may contest the sufficiency of an indictment or information in the trial court on a motion in arrest of judgment at any time prior to the entry of judgment. State v. Taes, 5 Wash.2d 51, 104 P.2d 751, 758 (1940).

Thus, it is clear that Washington requires a defendant to challenge the sufficiency of an indictment or information in the trial court if he wishes to preserve that issue for appellate review. As noted above, Kreck failed to object to the sufficiency of the indictment in the trial court. His decision not to do so was a deliberate tactic based on counsel’s mistaken but good faith belief that his client would readily escape punishment on a finding of not guilty by reason of insanity.

COLLATERAL CHALLENGE TO THE SUFFICIENCY OF AN INFORMATION

Kreck has challenged the sufficiency of the information for the first time in the federal district court by means of a federal habeas corpus proceeding. Ironically, if he had been convicted in a federal court he could not do so. In Moore v. Shuttlesworth, 180 F.2d 889 (6th Cir.1950) the court expressed the applicable law as follows:

It is urged upon us that appellant was convicted upon an indictment which was contrary to the statute, but as a general rule the question of the sufficiency of the indictment is not open upon habeas corpus; neither is the question of the sufficiency of the evidence to support the verdict, and nothing is presented here to take the case out of the general rule. Id. at 890. (emphasis added).

The majority of this court has today given a state prisoner who attacked the sufficiency of the accusatory pleading greater rights under the federal constitution than those available to a federal prisoner who would make precisely the same challenge. I believe this bold extension of federal ha-beas corpus relief is not only unprecedented but also unwarranted under existing legal principles.

APPLICABILITY OF THE CONTEMPORANEOUS OBJECTION RULE

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) the Supreme Court reaffirmed its view that a state prisoner is prevented from obtaining review of federal constitutional questions in a federal habeas corpus proceeding where he has failed to raise them in the state court as required by state procedure. Specifically, the Court held that the failure to make a timely objection on federal constitutional grounds “amounted to an independent and adequate state procedural ground which would have prevented direct review here.” Id. at 87, 97 S.Ct. at 2506.

In the matter before this court, petitioner failed to object to the sufficiency of the accusatory pleading, before the trial court, as expressly required by Washington law under State v. Piper. Trial counsel’s reasons for not objecting were based upon a determination that it was in his client’s best interests to convince the trial judge that his client was not guilty by insanity. His strategy misfired. He now seeks the assistance of the federal court system to overturn his conviction on due process grounds he deliberately withheld in the state court system. As observed by the Supreme Court in Wainwright v. Sykes, the granting of a petition for a writ of habeas corpus under the circumstances of this case “may encourage ‘sandbagging’ on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off.” Id. at 89, 97 S.Ct. at 2508.

The majority tells us that Washington's contemporaneous objection rule permits the raising of the sufficiency of the information on appeal even though this issue was not brought to the attention of the trial court. The majority fails to cite any .authority for this novel proposition. As noted above, in the only case in Washington which discusses this precise issue, State v. Piper, 194 Wash. 194, 77 P.2d 779 (1938), the Washington Supreme Court held that a challenge to the sufficiency of the information cannot be raised for the first time in an appellate court. Id. at 779. Curiously, the majority fails to cite or discuss the Piper case, in spite of the fact that it is squarely in point and dispositive. Instead we are referred to three cases decided after the trial and appeal in this matter which do not mention a challenge to the sufficiency of the information. In the first case cited, In re Myers, 91 Wash.2d 120, 587 P.2d 532 (1978), cert. denied, sub nom. Myers v. Washington, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979), the petitioner sought collateral review of the following issues: (1) involuntariness of his confession; (2) prejudicial pretrial publicity; (3) denial of counsel at a critical stage of the proceedings; (4) the prosecutor’s failure to disclose favorable information; and (5) instructional error. In discussing the first four issues, the Washington Supreme Court stated: “Each of these alleged infirmities was apparent either before trial or prior to the end of trial and each could have been raised on appeal. Since none of the claimed errors was raised, none provides a ground for Myers release from personal restraint.” Id. 587 P.2d at 533. In support of this holding, the court relied on the principle that habeas corpus may not be used as a substitute for appeal.

As to the instructional error, the Washington Supreme Court, in Myers, refused to consider the issues raised by the petitioner in spite of the fact that constitutional error occurred. The Washington Supreme Court stated:

We find that the interest of state in achieving a final judgment not subject to the frustrations associated with retrial years after the original proceeding outweighs any interest in readjudicating convictions according to subsequently developed legal standards. Executive clemency and the parole system are available for those cases that are particularly deserving. Accordingly, we hold that the general rule — i.e., the failure to identify errors at trial or prosecute them on appeal precludes reliance thereon in subsequent proceedings — applies to alleged errors [of constitutional dimension] raised for the first time on collateral attack. Id. at 535.

Thus, the law in the state of Washington is free from doubt. The insufficiency of the information cannot be raised for the first time on appeal under Piper, nor can errors of constitutional dimension be raised collaterally under Myers. In the instant matter, Kreck failed to raise the issue of the sufficiency of the information at trial as required by Piper. Under Myers, he could not raise it for the first time in a collateral attack in the judgment.

Kreck failed to make a contemporaneous objection to the sufficiency of the information in the Washington courts. Under such circumstances, Wainwright v. Sykes does not permit the federal courts to consider a petition for a writ of habeas corpus.

Exhaustion of State Remedies

As discussed above, it is unmistakably clear that the Washington Supreme Court did not address, consider, or dispose of any questions relating to the sufficiency of the information. This issue was not presented in either of Kreck’s direct appeals. Thus, the conclusion reached by the Washington Court of Appeals on collateral review, at least as interpreted by my colleagues, was clearly wrong. In spite of this obvious error, Kreck failed to seek a hearing before the Washington Supreme Court to challenge the Court of Appeals dismissal of his petition for collateral review.

Almost one hundred years ago, the United States Supreme Court taught us that a federal court ought not to consider a habeas corpus petition until all state remedies have been exhausted Ex Parte Royall, 117 U.S. 241, 250-54, 6 S.Ct. 734, 739-41, 29 L.Ed 868 (1885). By permitting Kreck to raise this issue in a federal habeas corpus petition, the majority has authorized Kreck to bypass his state’s appellate courts.

CONCLUSION

It is my view that under Ex Parte Royall and Wainwright v. Sykes, we must reverse this matter. Petitioner failed to file a demurrer, request a bill of particulars, or move in arrest of judgment to contest the sufficiency of the accusatory pleading. As a result he was barred from raising this issue on appeal by the decision of the Washington Supreme Court in State v. Piper. Had he raised this claim before trial, the prosecutor would have had an opportunity to amend his pleadings or pursue other appropriate procedures under Washington law to cure the defect and afford the accused adequate notice and due process. Instead, as a result of this court’s holding and petitioner’s trial strategy, the State of Washington is now faced with a retrial more than twelve years after the commission of the crime.

It is bewildering to me that the majority has now determined that in spite of his failure to exhaust state remedies or to comply with the contemporaneous objection rule, a state prisoner may challenge the sufficiency of the accusatory pleading, for the first time, in a federal habeas corpus proceeding upon federal constitutional grounds whereas a federal prisoner may not do so under Moore v. Shuttleworth. Further, under In re Myers, Kreck could not raise this issue for the first time on a collateral attack on the judgment in the Washington state courts. This petitioner has effectively bypassed state review of his contentions by deliberately failing to object in a timely manner.

Petitioner’s ingenious manipulation of the state and federal court systems has finally borne fruit.

APPENDIX

86 Wash.2d 112

The STATE of Washington, Petitioner, v. Charles KRECK, Respondent.

No. 43704.

Supreme Court of Washington, En Banc.

Nov. 20, 1975.

Defendant was convicted in the Superi- or Court, Spokane County, of second-degree murder and he appealed. The Court of Appeals, 12 Wash.App. 748, 532 P.2d 285, Ray E. Munson, J., reversed and remanded for new trial and, on petition of state, review was granted. The Supreme Court, Horowitz, J., held that report of chemical blood analysis made in course of business of state toxicological laboratory under supervision of state toxicologist who conferred with chemist conducting tests and personally verified results was not inadmissible as violating Sixth Amendment confrontation clause or corresponding state constitutional and statutory provisions because chemist who conducted test was not produced as witness and state made no attempt to obtain his testimony; that the report was admissible under the Uniform Business Records as Evidence Act; and that evidence sustained conviction.

Reversed.

1. Criminal Law <®=>436, 662(4)

Report of chemical blood analysis made in course of business of state toxicological laboratory under supervision of state toxicologist who conferred with chemist conducting tests and personally verified results was not inadmissible as violating Sixth Amendment confrontation clause or corresponding state constitutional and statutory provisions because chemist who conducted test was not produced as witness and state made no attempt to obtain his testimony and the report was admissible under the Uniform Business Records as Evidence Act. RCWA 5.45.010 et seq.; U.S.C.A. Const. Amend. 6.

2. Criminal Law ®=»436

Under Uniform Business Records as Evidence Act requiring that record be of an act, condition or event, entries in forms of opinions or statements as to cause are not admissible. RCWA 5.45.020.

3. Criminal Law