State v. Mulkey

BLACKWELL, Judge. In this criminal case involving a charge of child abuse and multiple sexual offense allegations, we are asked to determine the sufficiency of an indictment under Maryland Rule 4-202(a), which governs the requirements of a charging document Md.Rule 4-202(a) provides in pertinent part: “A charging document shall ... contain a concise and definite statement of the essential facts of the offense with which the defendant is charged and, with reasonable particularity, the time and place the offense occurred(Emphasis added). 1 ⁴⁷⁸ Specifically, we evaluate whether indictments alleging the offenses occurred in Prince George’s County, Maryland, sometime during three consecutive summers is stated with “reasonable particularity” sufficient to set forth the time of the offenses. Respondent, James Elwood Mulkey (Mulkey), was charged with one count of child abuse and twelve counts of third degree sexual offense, naming two children under age fourteen as the victims. 2 The indictment was filed October 23, 1986 in the Circuit Court for Prince George’s County and listed the dates of the offenses as follows: 3 ⁴⁷⁹ Counts 1-5: Child abuse and four counts of sexual offense June 1, 1982 to September 6, 1982 Counts 6-9: Pour counts of sexual offense June 1, 1983 to September 5, 1983 Counts 10-12: Pour counts of sexual offense June 1, 1984 to September 3, 1984 Defense counsel filed a motion to dismiss the indictment and a demand for a bill of particulars. Counsel maintained that the indictment was defective under Md.Rule 4-202(a) in that it failed to state with “reasonable particularity” the time and place of the offenses.

The demand for a bill of particulars sought specific dates, times and locations of the offenses. The State filed an answer to the motion to dismiss and an opposition to the demand for a bill of particulars, emphasizing that the indictment was sufficient on its face to inform the defendant of the charges against him. The State further contended no bill of particulars was required to clarify or supplement the indictment. At the hearing held on March 23, 1987, the Circuit Court for Prince George’s County dismissed the indictment.

The circuit judge reasoned: The Court feels that the indictment is a gunshot remedy where they lop in several years and take a season of the year for several years running and put it all into an indictment, and it amounts to no more than a gunshot indictment on the part of the State and it does not comply with the Rules.... The motion for a bill of particulars was ruled moot. The Court of Special Appeals affirmed the dismissal, concluding “when the State is unable, with reasonable diligence, to determine the specific time that an offense allegedly occurred, the indictment may be sufficient if the State’s inability to be more specific is contained within the indictment itself.” State v. Mulkey, 73 Md.App. 501, 510 , 534 A.2d 1374, 1379 (1988) (other citations omitted). ⁴⁸⁰ We granted certiorari to consider the important issue raised and note this is our first opportunity to review the “reasonable particularity” standard of Md.Rule 4-202(a). Because we hold the trial judge erred in dismissing the indictment under the circumstances, we reverse the judgment of the Court of Special Appeals.

We shall analyze the sufficiency of the indictment under both the Maryland Constitution and the “reasonable particularity” standard of Md.Rule 4-202(a). In Ledbetter v. United States, 170 U.S. 606, 612 , 18 S.Ct. 774, 776 , 42 L.Ed. 1162 (1898), the Supreme Court generally indicated the policy interest underlying allegations of time in an indictment: Good pleading undoubtedly requires an allegation that the offense was committed on a particular day, month, and year, but it does not necessarily follow that the omission to state a particular day is fatal upon a motion in arrest of judgment. Neither is it necessary to prove that the offense was committed upon the day alleged, unless a particular day be made material by the statute creating the offense. Ordinarily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient (citations omitted).

Subsequently, in Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942), the Supreme Court commented, “The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy for which petitioners contend, is not essential to an indictment.” Id. at 66 , 62 S.Ct. at 463 (other citations omitted). Article 21 of the Maryland Declaration of Rights mandates that a person charged with a crime shall be informed of the accusation against him. It provides “[t]hat in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the indictment, or charge, in due time (if required) to prepare for his defense....” Art. 21, Md.Decl. of Rts. In order to satisfy this constitutional requirement, a charging doc ⁴⁸¹ ument is used to first characterize the crime and second, “by so describing it as to inform the accused of the specific conduct with which he is charged.” Jones v. State, 303 Md. 323, 336 , 493 A.2d 1062, 1069 (1985); Williams v. State, 302 Md. 787, 790-91 , 490 A.2d 1277, 1279 (1985); State v. Morton, 295 Md. 487, 490 , 456 A.2d 909, 911 (1983); Ayre v. State, 291 Md. 155, 163 , 433 A.2d 1150, 1155 (1981).

Specifically, the purposes served by the constitutional requirement include: (1) putting the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct; (2) protecting the accused from a future prosecution for the same offense; (3) enabling the accused to prepare for his trial; (4) providing a basis for the court to consider the legal sufficiency of the charging document; and (5) informing the court of the specific crime charged so that, if required, sentence may be pronounced in accordance with the right of the case. Ayre, 291 Md. at 163-64 , 433 A.2d at 1155 . We have generally approved of the trend “of relaxing the formal requirements of indictments to avoid the prolix and often overly technical rules of common law pleading in favor of the shorter and simpler forms. Ross v. State, 308 Md. 337, 346 , 519 A.2d 735, 739 (1987); see also State v. Chaney, 304 Md. 21 , 497 A.2d 152 (1985), cert. denied, 474 U.S. 1067 , 106 S.Ct. 824 , 88 L.Ed.2d 796 (1986).

In Jones, supra, we reaffirmed the common law rule applied in Maryland “that a charging document must allege the essential elements of the offense charged.” 303 Md. at 337 , 493 A.2d at 1069 . “All essential elements of the crime need not, however, be expressly averred in the charging document; elements may be implied from language used in the indictment or information” (emphasis in original). Id. See also Williams v. State, supra; Putnam v. State, 234 Md. 537 , 200 A.2d 59 (1964); State v. Coblentz, 167 Md. 523 , 175 A. 340 (1934); Bosco v. State, 157 Md. 407 , 146 A. 238 ⁴⁸² (1929); Rice v. State, 9 Md.App. 552 , 267 A.2d 261 , cert. denied, 259 Md. 735 (1970). Here, we conclude the exact date of the offense is not an essential element, and is not constitutionally required to be set forth.

We recognize the unique problems involved in a child or sex abuse case where the victim is of tender years. The ability of a child to definitely state the date or dates of the offenses or to narrow the time frame of such occurrences may be seriously hampered by a lack of memory. As stated by the Court of Special Appeals in Bonds v. State, 51 Md.App. 102, 107 , 442 A.2d 572, 575 (1982): We recognize there are many times when it is impossible for the State to determine the exact date and time that any crime was committed. Therefore, sometimes specificity as to the exact time and date of the crime alleged is impossible to establish.

To establish a rule that would allow a criminal defendant to demand such specificity by raising an alibi defense would thwart justice and, in our view, is not required by either the Maryland or United States Constitutions. We also are mindful of the traditional rule that the State is not confined to the specific date or dates stated in the charging document. See Chisley v. State, 236 Md. 607, 608 , 203 A.2d 266 (1964); Fulton v. State, 223 Md. 531, 532 , 165 A.2d 774, 774-75 (1960); 1 C. Wright, Federal Practice & Procedure: Criminal § 125, at 383 (1982) (“The allegation [as to date] is not regarded as going to an essential element of the crime, and within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient.”) (footnote omitted). The Court of Special Appeals has had several opportunities to review the sufficiency of an indictment challenged as to time allegations.

Although the following cases were decided under the former rule containing the “as particular as possible” standard, they generally support the notion that the time of an offense stated in an indictment need not be precise. ⁴⁸³ In Carter v. State, 35 Md.App. 224 , 370 A.2d 183 (1977), the indictments charged that credit card offenses occurred between August 1, 1974 and October 27, 1974. The court concluded “there was sufficient evidence to support convictions for three of the credit cards within the period stated in the indictment.” Id. at 228 , 870 A.2d at 186. 4 In Bonds, supra, the indictment was based on sexual offense charges alleged to have occurred during the period July 1, 1979 through March 10, 1980 at the defendant’s home during weekday evenings and weekends. In responding to a bill of particulars, the State merely named three dates that “[stood] out in the complainant’s memory as dates she visited the defendant” 51 Md.App. at 104 , 442 A.2d at 573 . The State’s position was that it was unable to specify other dates because it did not have such information.

In the present case, the State maintained that further information concerning the charges could be obtained through normal discovery procedures. At the trial held in Bonds , an eleven year old female victim testified that the acts occurred continually during the time period stated in the indictment. There was testimony that the final act occurred on Saturday, March 1, 1980. The Court held: “There is no Maryland case law which requires, and the applicable statute, Maryland Code (1957, 1981 Repl.Vol.), Article 27, § 461, et seq., does not require, that in such a case as this the State must plead and prove that the offense occurred on a specific date at a specific time.” Id. at 106-07, 442 A.2d at 575 .

The Court concluded that the State was not precluded from prosecution if it is impossible to be precise as to the timing of the offense. ⁴⁸⁴ Finally, Rosenberg v. State, 54 Md.App. 673 , 460 A.2d 617 (1983) involved several prostitution type crimes alleged to have occurred between May 2,1981 and May 18, 1981. The court commented: Maintaining a bawdy house encompasses regenerating criminal conduct. That conduct in some instances may not be detected because of the secluded environment in which it occurs. As Rosenberg well knows, it would have been impossible for the State to set forth the date upon which each and every illegal sexual act was culminated.

We think the time in which the offenses occurred was described “as particularly as possible” and certainly put Rosenberg at no disadvantage. Id. at 684 , 460 A.2d at 622 . In reviewing the sufficiency of indictments primarily challenged on constitutional grounds, many jurisdictions support the principle that general allegations as to time are sufficient. The common strain in the following cases is that the state is not required to present an indictment with the actual date of the offense where the date is unknown.

Similar to the present case, it is significant that the majority of the authorities involve sexual offense and child abuse type crimes and child victims. In a recent case, State v. Mancinone, 15 Conn.App. 251 , 545 A.2d 1131 (1988), certif. denied, 209 Conn. 818 , 551 A.2d 757 (1988), cert. denied, — U.S.-, 109 S.Ct. 1132 , 103 L.Ed.2d 194 (1989), the defendant challenged an information of two counts of risk of injury to a minor child. 5 There, the defendant maintained he could not effectively establish defenses of alibi and impossibility because he was charged with having committed the offenses between August, 1982 and November, 1984. The Connecticut appellate court found no error in ⁴⁸⁵ refusing to require the state to make the charging documents more specific, reasoning “where the offense is of a continuing nature, it may be impossible to provide specific dates in the charging documents.” Id. 545 A.2d at 1136 , citing State v. Hauck, 172 Conn. 140 , 374 A.2d 150 (1976). The court elaborated: “Generally in such cases, ‘as long as the information provides a time frame which has a distinct beginning and an equally clear end, within which the crimes are alleged to have been committed/ ” it is sufficient to satisfy the constitutional requirements.” Id. 545 A.2d at 1135-36 (other citations omitted); see also State v. Sarace no, 15 Conn.App. 222 , 545 A.2d 1116, 1124 (1988), certif. denied, 209 Conn. 824 , 552 A.2d 432 (1988) (“The state does not have a duty to disclose information which the state does not have.”); State v. Evans, 205 Conn. 528 , 534 A.2d 1159, 1162-63 (1987), cert. denied, —— U.S. ——, 108 S.Ct. 1292 , 99 L.Ed.2d 502 (1988) (“We have never held that when the charges are sex-related and alibi is the defense asserted that the trial court should dismiss the charges unless the state, in response to a request, can allege the precise date of the offenses ...; neither the federal nor state constitution requires the state to choose a particular moment as the time of an offense when the best information available is imprecise.”). ⁴⁸⁴ Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any