662 F. 2d 569 - Gray v. Raines

State v. Woodmansee, 124 Vt. 387, 205 A.2d 407, 409 (1964).1

In Watson v. Jago, 558 F.2d 330 (6th Cir. 1977), the Sixth Circuit, in finding that the state trial court had violated the Sixth Amendment right to notice, held:

To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him.... As a matter of law, appellant was prejudiced by the constructive amendment.

Id. at 339 (footnote and citations omitted) (emphasis supplied).

The facts in the instant case demonstrate that Gray's conviction significantly violated that principle of due process. Gray's entire defense to the forcible rape charge was that the sexual relations were consensual. This defense gained Gray an acquittal on the forcible rape charge, but as was pointed out in the dissent to the Arizona Supreme Court's opinion affirming Gray's statutory rape conviction,

different defenses are involved, and a defendant may virtually convict himself of statutory rape if he is surprised by a statutory rape instruction after presenting a consent defense to a forcible rape charge.

State v. Gray, 122 Ariz. at 450, 595 P.2d at 995 (Justice Gordon, dissenting). This is precisely what occurred here. The state was permitted to wait until Gray had put on evidence of consent as a defense to the charged offense, and then use that evidence to convict Gray of the second offense. Such a procedure is repugnant to the concept of due process and fundamental fairness.2

For these reasons, a reversal is required based solely on the inadequacy of the charging information.

Even if the defendant's actual knowledge of the victim's age is considered, the conviction still must be overturned. The Arizona Supreme Court concluded that Gray had notice "that another part of the rape statute was applicable." Id. at 448, 595 P.2d at 993. This is a basic flaw in the state court's decision. True, Gray had notice of the age of the prosecuting witness, and, presumptively, notice that he could have been charged with second degree rape. He did not, however, have notice that he was being charged with that offense. In fact, the prosecutor in his opening statement at trial told the jury that the state would prove beyond a reasonable doubt that the complainant "was forcibly raped by the defendant." (Tr. of Trial, Vol. I, p. 43). There was no reference whatsoever to the crime of statutory rape until the instruction conference near the close of the evidence.

Moreover, before we could uphold the conviction on the theory that the failure to properly charge did not prejudice Gray, we would have to find beyond a reasonable doubt that the error was harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Applying that standard to the present case, we cannot say beyond a reasonable doubt that the defendant was not surprised and thereby prejudiced by the second degree rape instruction. First, as was pointed out above, Gray's consent defense to the first degree charge effectively convicted him of the second degree offense. It is not reasonable to conceive that Gray (who was acting pro se with assigned counsel), in investigating and preparing his defense, would have proceeded as he did if he had been charged with, or had known he would be required to meet, the charge of second degree rape. Second, while Gray did make an argument during trial regarding the age of the victim (which would have been relevant to a statutory rape defense) (Tr. of Trial, Vol. I, p. 9; Vol. IV, pp. 89, 141-42), it is plausible that Gray was attempting to show that the victim was of sufficient age, which, when coupled with the other evidence, would persuade the jury that the sexual relations were consensual and not the result of force.

The ruling of the Court today applies only to the conviction for second degree rape; the conviction for lewd and lascivious acts is not disturbed. The writ of habeas corpus is granted and this case is remanded to the District Court for action consistent with this opinion.

REVERSED AND REMANDED.

I concur that A.R.S. § 13-611(B) does not violate Gray's equal protection rights. See Michael M. v. Superior Court of Sonoma County, --- U.S. ----, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981). I also concur that the conviction for second degree rape cannot stand and agree that the writ of habeas corpus as to that charge should be granted. I do not, however, go as far as my brother McNichols and hold the failure to charge second degree rape in the information a per se sixth amendment violation. Although the information may be the primary charging paper, an accused who, for example, is notified of the charges by complaint and arrest warrant or by a bill of particular would be adequately apprised of the accusations for due process purposes. On the facts of this case, however, I find Gray's conviction on the second degree rape charge a violation of due process. The question is whether the accused was taken by surprise. My brother Duniway concludes on the record that the accused was shown to have adequate notice of the possible charge against him. I disagree.

The accused's probing as to the age of the victim may have been relevant to a defense against the second degree charge but it is equally relevant to showing the victim to be of a sufficient age to give consent as a defense against the forcible (first degree) rape charge. Thus it seems to me fundamentally unfair and a denial of due process that in presenting a defense of consent to a forcible rape charge, a defendant virtually convicts himself of a statutory rape with which he is not formally charged and as to which the prosecutor during trial is ostensibly not trying the defendant. Indeed, the prosecutor in his opening statement told the jury that the state would prove beyond a reasonable doubt that the complainant "was forcibly raped by the defendant." There was no intimation of a second degree charge until both sides had rested and instructions were to be given. That was the first time that the second degree charge was explicitly stated. The accused was ambushed.

DUNIWAY, Circuit Judge (concurring and dissenting):

I concur in the holding that A.R.S. 13-611.B. does not violate Gray's right to equal protection. Michael M. v. Superior Court of Sonoma County, --- U.S. ----, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), is squarely in point. I cannot agree, however, that Gray's conviction of "statutory" rape under § 13-611.B. violated his right to due process.

A.R.S. § 13-611, as in effect when Gray was charged and convicted, provided, in pertinent part:

Definition: Degrees.

A. Rape in the first degree is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of the following circumstances:

2. Where the female resists, but her resistance is overcome by force or violence.

3. Where the female is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution...

B. Rape in the second degree is an act of sexual intercourse with a female not the wife of the perpetrator, under the age of eighteen years, under circumstances not amounting to rape in the first degree.

Gray was charged with violating § 13-611.A. Subsection B. was not mentioned in the information.

Gray's position is that "statutory" rape (subsec. B.) is not an offense necessarily included in forcible rape (subsec. A.), because a fact that the victim is under the age of 18 is not an element of forcible rape, but is an element of "statutory" rape. Therefore, he says, charging him with forcible rape does not tell him that he can be convicted, under that charge, of statutory rape. This is essentially the position adopted in Judge McNichols' opinion.

However, it was settled law in Arizona at the time Gray was charged that there was only one crime of rape: " § 13-611 defining rape did not create separate crimes, but 'merely set this particular form of rape (Subsection B, second degree) apart from the other five (Subsection A, first degree) for the obvious purpose of allowing a different penalty to be assessed for its violation.' " State v. Klem, 1972, 108 Ariz. 349, 350, 498 P.2d 216, 217 (citations omitted). The Arizona Supreme Court held that "(w)hile it is, of course, possible that an accused may be taken by surprise if an information charges him under one subsection of A.R.S. § 13-611 and the proof offered brings the offense under another subsection, if the accused has received notice of such a possibility he is not prejudiced thereby." Id.; State v. Carrico, 1977, 116 Ariz. 547, 548, 570 P.2d 489, 490; State v. Gray, 1979, 122 Ariz. 445, 448, 595 P.2d at 992-993. We are, of course, bound by the Arizona court's construction of Arizona'sstatute.

I see no deprivation of due process in the position taken by the Arizona court. Where the lesser offense is necessarily included in the greater, proof of the greater also proves the lesser. It is then not necessary to charge the lesser expressly because the law which defines the elements of the offenses tells the defendant that he can be found guilty of the lesser upon proof of the elements of the greater. I know of no case that holds that it must be shown that the particular defendant actually knew that he could be convicted of the lesser offense. The lesser offense rule is one of law; notice to the defendant that the greater charged offense includes the lesser is presumed, because the defendant is presumed to know the law, and so due process is satisfied.

The case at bar is analogous. Proof of forcible rape necessarily proves every element of "statutory" rape, save one the victim's age. Thus, a charge of forcible rape necessarily charges every element of "statutory" rape, except the victim's age. And if the defendant knows, when he goes to trial, that the victim may be under eighteen, he is as well off, from the standpoint of notice, that is, of due process, as is one who may be convicted of a lesser included uncharged offense. It will not do to say that he does not know whether the state will try to prove the victim's age. Her age is relevant in a forcible rape case, because it is at least arguable that a young girl can be more easily forced or frightened into submission than a mature woman can be. All that the Arizona court has added to the necessarily included defense doctrine is a requirement that the defendant actually know, rather than be presumed to know, that the victim may be proved to be under age. I see nothing unconstitutional, no deprivation of due process, in that holding.

The record supports the Arizona court's conclusion that Gray had knowledge of the possibility that the proof would bring the offense under subsection B. Gray argues that he first realized that he might be convicted of second degree or statutory rape under A.R.S. § 13-611.B. at an in-chambers conference on jury instructions near the close of his trial, and the majority accepts that argument. The record, however, does not support it. On the contrary, the record shows that Gray had the requisite knowledge from the beginning. I do not rely on imputing notice to Gray simply because of the settled state of Arizona law on this matter, by analogy to the "necessarily included offense" rule. The victim testified at the preliminary hearing and then at trial that she was seventeen years old. At the start of the trial and before the selection of a jury, and just after the trial judge stated that "Count I is Rape First Degree and Count II Lewd and Lascivious acts," Vol. E, p. 8, Gray made the following statement to the court: "There is a point of law I'd like entered, Your Honor, and that is that the Supreme Court of the United States ruling involving the life of a human being, which states that you are legally alive when you are in your mother's womb after, I believe, it's 16 weeks, Your Honor." Vol. E, p. 9. The point of this imaginative argument, as was made clear in Gray's later objection to the second degree instruction to the jury, was to fend off a conviction for second degree rape. Clearly, Gray was aware before the trial began that he faced the possibility of such a conviction.

Moreover, in the course of trial and before the in-chambers conference in which Gray now claims that he first learned of the second degree rape charge, Gray probed the matter of the victim's age. In his cross-examination of the victim's sister, he asked the following:

Q. And let's see. This is '78. Next year, '79. (The victim) would be 20 years old, wouldn't she?

A. No.

Q. She won't?

A. 19.

Q. She was born in '59. Next year in '79, she'll be 20?

A. Yes, yes. I'm sorry. Vol. F. p. 157.

At the conference in chambers on the jury instructions, Gray's advisory counsel objected to the state's request for an instruction on second degree rape:

We object to this instruction on two grounds. First of all, I realize that Arizona state law allows you to instruct the jury on second degree rape under circumstances. And I am not convinced that this is consistent with the United States Constitution, however, because I do not feel that, going by the standard definition of what a lesser included offense is, that rape second degree is really a lesser included offense of first degree rape....

(I)n this case the defendant has not been given notice that he has to defend against second degree rape, because the information simply charges first degree rape.

Number Two, Mr. Gray would like to object to it because he takes the position that based on the United States Supreme Court ruling in the abortion case, that a person's age is determined from the point at which the fetus becomes viable, which I believe the United States Supreme Court said is five months, which is to say that you would add another four months normally to the age of the person, and that would throw this victim over the age of 18. Vol. H, p. 83-84.

Finally, it is apparent from the objection to the second degree instruction made by Gray's advisory counsel that Gray's lawyer understood that Arizona law permitted a second degree instruction from the moment the victim testified to her age at the preliminary hearing.

In short, statements made by Gray's advisory counsel and by Gray both before and during trial make clear that Gray had actual notice of the second degree rape charge. Gray had "notice and meaningful opportunity to defend," Jackson v. Virginia, 1979, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 and I can find no violation of due process in these circumstances. See Goodloe v. Parratt, 8 Cir., 1979, 605 F.2d 1041, 1046 ("If a defendant is actually notified of the charge due process notice requirements may be met, even if the information is deficient.") Cf. United States v. United Mine Workers of America, 1942, 330 U.S. 258, 295-300, 67 S.Ct. 677, 696-699, 91 L.Ed. 884 (actual notice of criminal contempt suffices).

I would affirm.