State v. Colon, 2008
From Judgepedia
The majority opinion was written by Thomas Moyer. He was joined in the majority by Maureen O'Connor, Paul Pfeifer and judge William Wolff, who sat on the court in place of Cupp.
Justices O'Donnell, Lanzinger, and Lundberg Stratton vigorously dissented.
The opinion says that the prosecution's failure to allege in the indictment that the defendant had the specific mental state necessary to be convicted for robbery was a "structural error," i.e. an error that deprived the defendant of one of his constitutional rights. Thus any conviction of the defendant could not stand, even though the defendant failed to object to the error prior to trial. The majority wrote that "if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment ... such a procedure would allow a court to convict him on an indictment essentially different from that found by the grand jury," and that "the state must meet its duty to properly indict a defendant, and we will not excuse the state's error at the cost of a defendant's longstanding constitutional right to a property indictment." Thus, that "a defendant can challenge for the first time on appeal an indictment that omits an essential element of the crime, protects defendants' right to a grand jury indictment," because "the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury."
- In his dissent, Justice O'Donnell acknowledged that the error was unconstitutional, but asserted that the defendant forfeited the right to object to any such error when he "failed to object at a time when it could have been corrected by the trial court." He noted that "to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed."
- In her separate dissent, Justice Lanzinger noted her beliefs that "failure to timely object to a defect in an indictment constitutes a waiver of the issues involved," and that the defendant "has not shown that he was prejudiced in the defense of his case or that he would have proceeded differently had the error been corrected."
