Gray v. Raines

Decision Date23 November 1981
Docket NumberNo. 79-2717,79-2717
PartiesRobert Dale GRAY, Plaintiff-Appellant, v. Robert RAINES, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard M. Barnett, San Diego, Cal., for plaintiff-appellant.

William J. Schafer, Phoenix, Ariz. (argued), for defendant-appellee; Gerald R. Grant, Asst. Atty. Gen., Phoenix, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Before DUNIWAY and TANG, Circuit Judges, and ROBERT J. McNICHOLS, * District Judge.

ROBERT J. McNICHOLS, District Judge:

Gray was convicted in Arizona state court of second degree or "statutory" rape under A.R.S. § 13-611(B). He argues on this appeal that the Arizona statutory rape law (since repealed) under which he was convicted discriminated against males and therefore violated the Equal Protection Clause of the United States Constitution. He also argues that, because he was charged in the information only with first degree or forcible rape, his right to due process was violated when the trial judge included second degree rape in his charge to the jury. These contentions were rejected on direct appeal by the Arizona Supreme Court. State v. Gray, 122 Ariz. 445, 595 P.2d 990 (1979). They were rejected by the federal district court on Gray's petition for a writ of habeas corpus.

Gray's contention that A.R.S. § 13-611(B) violated his equal protection rights is without merit. In the recent case of Michael M. v. Superior Court of Sonoma County, --- U.S. ----, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), the Supreme Court held that the California statutory rape law, on which A.R.S. § 13-611(B) was modeled, does not violate the Equal Protection Clause. Although we reject the equal protection contention, we find merit in Gray's due process argument and reverse the district court on that basis.

In the information filed November 8, 1977, the state charged Gray with one count of first degree rape under former A.R.S. § 13-611(A) and one count of lewd and lascivious acts. Gray argues he was first notified that the state was seeking a conviction of second degree rape under A.R.S. § 13-611(B) at an in-chambers jury instruction conference near the close of the evidence. At that time 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 that 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.

Tr. of Trial, Vol. IV, pp. 83-84.

The Arizona court, in an earlier decision, apparently conceded that statutory rape is not a lesser included offense within a charge of forcible rape. State v. Carrico, 116 Ariz. 547, 548, 570 P.2d 489, 490 (1977). Instead, the court construed A.R.S. 13-611 as "merely stat(ing) the different circumstances under which sexual intercourse constitutes the crime of rape." State v. Klem, 108 Ariz. 349, 350, 498 P.2d 216, 217 (1972). Because the Arizona court did not view first and second degree rape as separate offenses, it held that the state was not required to charge both degrees in the information. State v. Gray, 122 Ariz. at 447, 595 P.2d at 992. While the court did recognize 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," the court concluded that "if the accused has received notice of such a possibility he is not prejudiced thereby." State v. Klem, 108 Ariz. at 350, 498 P.2d at 217. The Arizona Supreme Court in Gray held that because the alleged victim testified at a preliminary hearing before trial that she was seventeen years old, "Gray was therefore on notice at that time that another part of the rape statute was applicable." 122 Ariz. at 447-48, 595 P.2d at 992-93.

The issue before this Court is whether Gray's conviction of statutory rape when the information charged only forcible rape violated the sixth amendment to the United States Constitution, which gives an accused the right "to be informed of the nature and cause of the accusation." The notice provision of the Sixth Amendment is incorporated within the Due Process Clause of the Fourteenth Amendment and is therefore fully applicable to the states. In Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), the Supreme Court spoke of this right.

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

Id. at 201, 68 S.Ct. at 517 (emphasis added). In another case decided the same day as Cole, the Supreme Court likewise declared that:

A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense a right to his day in court are basic in our system of jurisprudence ....

In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948).

Obviously, the State of Arizona may organize its criminal laws in whatever manner it chooses. The state cannot, however, use a classification scheme to circumvent the constitutional notice requirement imposed on the state when charging a defendant with an offense. The California Supreme Court made this point clear in In re Hess, 45 Cal.2d 171, 288 P.2d 5 (1955), a habeas corpus action involving a California rape statute essentially the same as the Arizona rape statute. In Hess the state took the position that the single crime of rape could be committed in six different ways, including intercourse with a person under the age of twenty-one. Although the accused had been charged with forcible rape only, the state contended the charge automatically included statutory rape and the lesser included offense of contributing to the delinquency of a minor. Justice Traynor, writing for the court, rejected this contention, impliedly finding that statutory rape had to be charged separately. He stated:

A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.... The information charging forcible rape in the present case did not advise petitioner that he must be prepared to controvert evidence that his alleged victim was under the age of 21 years and to defend a charge of having committed an act that would tend 'to cause or encourage any person under the age of 21 years' to become a delinquent.

Id. at 173, 288 P.2d at 7 (citations omitted).

What makes statutory and forcible rape separate offenses for charging purposes is the fact that proof of different elements is required. The use of force is an element of first degree rape, while the age of the victim is an element of second degree rape. Neither element is common to both degrees. Because first and second degree rape are distinct offenses, and second degree rape is not an included offense, the state was obligated to comply with the Sixth Amendment notice requirement when bringing a second degree rape charge. In the instant case, the state did not meet its obligation.

The failure of the prosecution to give Gray notice in the information of its intent to charge second degree rape is alone sufficient to require a reversal of his conviction. This Court has previously held that a violation of the Fifth Amendment by convicting a defendant of a crime not charged in an indictment constitutes per se reversible error. United States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807 (9th Cir. 1981); see Stirone v. United States, 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960); United States v. Beeler, 587 F.2d 340, 343 (6th Cir. 1978). Thus, a Sixth Amendment violation must also be per se error since the purposes behind the Fifth Amendment requirement of a grand jury indictment and the Sixth Amendment right of an accused to be informed of the nature and cause of the accusations are identical: (1) to apprise the defendant what he must be prepared to defend against; and (2) to protect the defendant against double jeopardy. Calley v. Callaway, 519 F.2d 184, 226 (5th Cir. 1975); United States v. Sanchez, 508 F.2d 388, 395 (5th Cir. 1975). Moreover, the Supreme Court has held other due process rights associated with a fair trial to be so basic that their infraction can never be treated as harmless error. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (impartial judge). Given the Supreme Court language in Cole and Oliver, supra, indicating that the right to notice of a charge is basic and the most clearly established due process right of an accused in...

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