This cannot be right after Fajardo v. State, which the Indiana Supreme Court decided in January. Or let me put it differently: we'll see if Fajardo is worth taking seriously, if the Supreme Court grants transfer. Fajardo was a signal case, finally taking seriously the statutory limitations on amendments to charging informations.
The deal is that the State may amend charging informations at will, if the amendment is a matter merely of form and not substance. If an amendment is one of substance, then the State has to amend substantially before trial. (If you want the gory details of the statute, it's set out in Fajardo, or you can get to it here: Ind. Code 35-34-1-5.)
Fajardo purported to put some teeth in the statute and to clean up the awful mess in the cases on the subject going way, way back. The new test to determine if an amendment is one of substance or form has not changed much. As set out in Fajardo, without citations, it's simply this:
[A]n amendment is one of form, not substance, if bothThis doesn't make a lot of sense to me, since the test does not seem to cover the entire universe of possibilities. But under either test, changing cocaine to heroin seems to me almost obviously a change of substance. In Indiana, you don't get to charge someone with possessing any old controlled substance and then let the cat out of the bag about what substance it was at trial. So if you charge cocaine, it is a complete defense to the charge that it was heroin. And Jones's evidence that the substance was, in fact, heroin and not cocaine, might apply "equally" in some sense under both a cocaine and heroin charge. But not "equally" in any sense that Jones would appreciate.
(a) a defense under the original information would be equally available after the amendment, and
(b) the accused's evidence would apply equally to the information in either form.
And an amendment is one of substance only if it is essential to making a valid charge of the crime.
And if you go to the second part of the test, possessing cocaine and possessing heroin are two different crimes, unless you buy Judge Mathias's opinion that, in essence, says that crimes are the same so long as they are charged under the same statutory section. But to repeat, I don't think that can be correct if possession of heroin is a complete defense to possession of cocaine.
In fact, it seems to me that this multiplicity of tests is unnecessary. What about simply the following, which partially comes out of the law regarding variances: If the case had been tried on the charge as made before the amendment, would the evidence sought to be introduced by the State have been sufficient for conviction under the pre-amendment charge? If not, then the amendment is one of substance. In Jones, since proof that the narcotic was heroin could not support the original charge that it was cocaine, the switch from cocaine is one of substance.
There's a nice case on this involving resisting law enforcement: Bonner v. State, 789 N.E.2d 491 (Ind. Ct. App. 2003). Essentially, the State does not get to change during trial which law enforcement officer was resisted:
In this case, the names of the particular officers from whom Bonner fled were essential to the proper description of the State’s two separate resisting charges, and the State had to specifically identify the officer or officers whose arrest efforts Bonner allegedly resisted in each information. Given the number of officers involved in the police chase and the number of ways Bonner was alleged to have fled from the different officers, the separate Resisting charges would not have provided Bonner with sufficient information to anticipate the proof that would be adduced against him with regard to each charge if the officers pertinent to each separate offense had not been particularly identified.I don't see how the switch from cocaine to heroin is any different.
But the variance approach doesn't quite cover matters either. And, as the current test has it, something has to be included about defenses. If someone has an alibi defense all ready to go, the State should not get to change the date, time, or place of an offense at the last minute.
I guess, as always, we'll see what happens. It would be ashame if transfer were not sought and granted. It's an ideal case for the Indiana Supreme Court to give a meaningful edge, either way, to the law of amendments.