Martin v. Kassulke

Decision Date29 July 1992
Docket NumberNo. 91-5788,91-5788
PartiesRita M. MARTIN, Petitioner-Appellee, v. Betty KASSULKE, Warden, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

David R. Marshall (briefed), Lexington, Ky., for petitioner-appellee.

Rita M. Martin, pro se.

Joseph R. Johnson, Asst. Atty. Gen. (briefed), Chris Gorman, Atty. Gen., Frankfort, Ky., for respondent-appellant.

Before: BOGGS and NORRIS, Circuit Judges; and TIMBERS, Senior Circuit Judge. *

BOGGS, Circuit Judge.

In October 1990, petitioner, who has been in prison since 1984 on charges of first-degree rape, filed a petition for a writ of habeas corpus on the grounds that the difference between the charges against her as outlined in the jury instructions and the charges in her indictment constituted an impermissible constructive amendment of the indictment and not merely a permissible variance. The district court granted the habeas petition on June 18, 1991. We reverse, holding that the difference between the indictment and the jury instructions was only a permissible variance.

I

Rita Martin and her co-defendants, James Hall and Jesse Jameson, were indicted for the first-degree assault, first-degree robbery, and first-degree rape of Nancy Bellamy. Martin and Hall were also charged with first-degree burglary. At trial, the jury found Martin guilty of aiding and assisting Jameson in the first-degree rape of Bellamy and guilty of fourth-degree assault. She received the jury-recommended sentence of ten years, to be served concurrently to a sentence of twelve months and a $500 fine. Hall received the same verdicts and sentence. Jameson was found guilty of first-degree rape and received the jury-recommended sentence of ten years.

Viewed in the light most favorable to the prosecution, the facts of the case are as follows. On February 7, 1984, Nancy Bellamy, along with two other people, was helping a friend, Ronnie Treadway, move out of his apartment in Clark County, Kentucky. During the course of the evening, the foursome went to find Rita Martin at the Buckboard Lounge, where Martin worked. They sought to retrieve a pistol that Treadway had given Martin while she had been staying at his apartment the previous weekend. Martin refused to return the pistol to Treadway. Later that night, around 12:30 a.m., defendant Hall and Martin went to Treadway's apartment, knocked on the door, and broke in. Martin demanded the clothes that she had left in the apartment the previous weekend. Bellamy was still at the Treadway apartment.

As Martin started collecting her belongings, Hall threatened Treadway, saying that he had a gun. Treadway ran out to get a police officer who lived in the apartment below. While Treadway was gone, Hall and Martin abducted Bellamy, whom they believed to be a drug informant for the government. They drove Bellamy to Jesse Jameson's apartment where Hall was also temporarily living. There, Hall, Martin, and Jameson severely beat Bellamy. Martin and Hall then tore off Bellamy's clothes and threw her into a tub, with Hall saying "he wasn't going to fuck somebody with blood all over them." Bellamy testified that Hall then dragged her into the living room and raped her, after which Hall and Martin went into a bedroom. Apparently Bellamy then blacked out and woke up the next morning in Jameson's bed with Jameson. At that point Bellamy grabbed her clothes and ran to a friend's house. Bellamy reported the crimes to the police and identified both Jameson and Hall as the rapists.

In custody, Martin gave three statements: 1) she said that Bellamy left Treadway's apartment voluntarily because he was beating her; 2) she said that at Jameson's she fought with Bellamy, and kicked her, but that nobody else was involved; and 3) she said that she then left Bellamy in the bathroom, went to bed, and had sex with Hall. Jameson gave two statements: 1) he said that Martin and Hall woke him up when they came home and when he came out of his bedroom, he saw Bellamy, who he said had a "busted eye and bloody face"; and 2) he said that he then had sex with Bellamy, who was a willing participant. At trial, neither Martin nor Jameson testified. However, Hall testified that Bellamy asked to accompany him and Martin to Jameson's. Hall said that while at Jameson's he and Martin went to bed and had sex while Bellamy was still in the tub. He said that the next thing he heard was his uncle knocking on his door the next morning.

After a jury trial, the three co-defendants were found guilty on June 20, 1984. On appeal, the Kentucky Court of Appeals affirmed Martin's conviction. On April 3, 1989, Martin filed a pro se petition for writ of habeas corpus in federal district court, which was denied for failure to exhaust state remedies. Martin, after filing for and being denied discretionary review by the Supreme Court of Kentucky, then filed another habeas petition with the district court on October 2, 1990. On June 18, 1991, the court granted the petition for a writ of habeas corpus on the ground that a difference between the jury instructions and the indictment constituted a constructive amendment to the indictment. On June 27, 1991, the district court granted a motion by Kentucky for a stay of the habeas writ pending this appeal.

II

The question of variance or constructive amendment arises in this case because Martin's indictment did not contain all the elements of first-degree rape that were included in the jury instructions. Under Kentucky statutory law, a person is guilty of first-degree rape when:

a) He engages in sexual intercourse with another person by forcible compulsion; or

b) He engages in sexual intercourse with another person who is incapable of consent because he:

i) Is physically helpless; or ii) Is less than twelve years old.

Ky.Rev.Stat.Ann. § 510.040.

Martin's indictment for first-degree rape stated the following:

Count V: On or about the 8th day of February, 1984, in Clark County, Kentucky, the above named defendants ... committed the offense of RAPE IN THE FIRST DEGREE by knowingly and unlawfully engaging in sexual intercourse with Nancy Bellamy by forcible compulsion and further causing said Nancy Bellamy serious physical injury;

The instruction by which Jameson was found guilty of first-degree rape, and by which Hall and Martin were found accessories to the rape, directed the jury:

You will find the defendant Jesse "Butch" Jameson guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

a) That in this county on or about February 8, 1984 ... he engaged in sexual intercourse with Nancy Bellamy, AND

b) That he did so by forcible compulsion, OR

That Nancy Bellamy was incapable of consent because she was physically helpless.

The jury instruction differs from the original indictment in that it mentions the possibility that Bellamy was incapable of consent because of physical helplessness, a possibility that had not been mentioned in the indictment. The indictment had only charged rape by forcible compulsion.

There are several methods in which the charges contained in a grand jury indictment may be altered. In United States v. Ford, 872 F.2d 1231 (6th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 124, 112 L.Ed.2d 93 (1990), this court recognized two basic categories of indictment modification:

"An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment."

872 F.2d at 1235 (quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969)) (emphasis in original). An amendment is per se prejudicial, as it directly infringes the defendant's right to know of the charges against him by effectively allowing the jury to convict the defendant of a different crime than that for which he was charged. Ford, 872 F.2d at 1235. This case does not present us with an actual amendment; Martin was charged with aiding a rape, and Jameson was clearly convicted for committing a rape.

A variance, on the other hand, "is not reversible error unless the accused has proved a prejudicial effect upon his defense," because it merely permits the prosecution to prove facts to establish the criminal charge materially different from the facts contained in the charging instrument. Ibid.; see also United States v. Beeler, 587 F.2d 340, 342 (6th Cir.1978). Although it is generally subject to the harmless error test, a variance "infringes upon the 'apprisal function' of the sixth amendment which requires that '[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation....' " Ford, 872 F.2d at 1235. If a variance infringes too strongly upon a defendant's sixth amendment rights, it is considered a "constructive amendment," which is "a variance that is accorded the per se prejudicial treatment of an amendment." Ibid. However, although a defendant need not demonstrate actual prejudice to demonstrate that a constructive amendment violated his constitutional rights, an element of prejudice clearly remains in this term, as is evident from the following discussion:

A constructive amendment occurs when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.

United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986) (emphasis added). Thus, to rise to the level of a constructive amendment, the change must effectively alter the substance of the...

To continue reading

Request your trial
25 cases
  • U.S. v. Budd
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 13, 2007
    ...An actual amendment occurs when the prosecutor actually changes the text of the indictment. Id. at 757 (citing Martin v. Kassulke, 970 F.2d 1539, 1542 (6th Cir.1992)). By contrast, [a] constructive amendment results when the terms of an indictment are in effect altered by the presentation o......
  • U.S. v. Kuehne
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • October 28, 2008
    ...alternative theory, a mere variance occurs and a defendant must demonstrate prejudice. See Budd, 496 F.3d at 522, 525; Martin v. Kassulke, 970 F.2d 1539 (6th Cir.1992). As an initial matter, Kuehne has not alleged that the evidence offered at trial varied from his indictment. Consequently, ......
  • Skinner v. McMlemore
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 7, 2008
    ...court's instructions on the elements of home invasion did not "effectively alter the substance of the [information]." Martin v. Kassulke, 970 F.2d 1539, 1543 (6th Cir.1992). Contrary to petitioner's argument, a charging document need not give "notice of the exact method by which the crimina......
  • United States v. Szpyt
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 3, 2015
    ...with the dual product allegations serving as details that would lead only to a mere variance analysis. See, e.g., Martin v. Kassulke, 970 F.2d 1539, 1545–46 (6th Cir.1992) ; cf. Marshall v. Bristol Superior Court, 753 F.3d 10, 18 (1st Cir.2014).Apparently, though, the prosecution did not pr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT