State v. Carmichael
| Decision Date | 20 April 1982 |
| Parties | STATE of Maine v. Elvin CARMICHAEL. |
| Court | Maine Supreme Court |
David M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.
Libhart, Ferris, Dearborn, Willey & Ferm, Joel A. Dearborn (orally), N. Laurence Willey, Brewer, for defendant.
Before McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS, VIOLETTE and WATHEN, JJ.
Elvin Carmichael appeals his conviction of gross sexual misconduct, 17-A M.R.S.A. § 253, following a jury trial in Superior Court, Penobscot County. Only three of the seven errors Carmichael claims on appeal merit discussion. Those three involve allegations of (1) noncompliance with the Miranda requirements by a police officer, (2) a variance between the indictment and proof at trial, and (3) various discovery violations. We affirm the judgment of conviction.
At trial the following evidence was produced. The victim, five years of age at the time of the incident and seven at the time of trial, testified that in the spring of 1980 Carmichael touched his "pee-pee" to her "pee-pee" while she was in bed without any clothes on. Sergeant Love of the Maine State Police testified that Carmichael admitted to him that "on one occasion ... he had put his penis against (the victim's) vaginal area." Detective Pratt of the Maine State Police testified that Carmichael made a similar admission to him. The defendant testified at trial that he had never engaged in a sexual act with the victim. Other defense testimony was introduced in an attempt to show that at the time she claimed the incident occurred the victim was aggressive, provocative, preoccupied with sexual matters and tended to have fantasies.
Carmichael argues first that the court erred by admitting the testimony of Officer Love. On May 8, 1980, Love drove Carmichael from his home to State Police Headquarters in Augusta where he turned Carmichael over to Detective Pratt. Pratt first fully advised Carmichael of his fifth amendment rights, reading from a standard Miranda form which Carmichael signed. Pratt then conducted four separate polygraph examinations from approximately 10:00 a. m. until approximately 1:00 p. m. At the conclusion of the tests Carmichael again signed the waiver form. Pratt left and Love entered the room. Love offered Carmichael a cigarette and the two men had a conversation at which time Carmichael admitted he had "put his penis up against (the victim's) vaginal area."
Prior to trial, Carmichael moved to suppress the statement he made to Love. The Superior Court denied Carmichael's motion finding that (1) Carmichael's statements to Love were made voluntarily; (2) the statements were not the result of custodial interrogation; (3) Miranda warnings were not required; (4) the warnings, however, were fully given; (5) Carmichael was aware of his rights when he made the statements and (6) Carmichael knowingly and intelligently waived his rights.
We need not determine whether Carmichael's statements were, in fact, the product of custodial interrogation, see State v. Philbrick, Me., 436 A.2d 844 (1981), as we find that the police here fully apprised Carmichael of his fifth amendment rights. Carmichael does not deny that Detective Pratt fully advised him of his fifth amendment rights. He claims, however, that a break occurred between the questioning by Pratt and the questioning by Love and that Love was required to readvise him of his rights. We do not agree. State v. Myers, Me., 345 A.2d 500 (1975) enunciates the proper standard to be applied in a situation such as this. We applied the Myers standard to a factual pattern quite similar to that of the case at bar in State v. Ruybal, Me., 398 A.2d 407 (1979). Applying the Myers standard here we conclude that the warnings given Carmichael were sufficient to put an individual of average intelligence and awareness on notice that any incriminating statements made at any time to the police officers could be used against him. Ruybal, 398 A.2d at 413. We find no merit in Carmichael's contention that the warnings he received were limited in their scope to be effective only for the purpose of his interview with Pratt.
Carmichael next argues that the trial court erred by admitting evidence tending to show that the crime occurred in the spring of 1980. He complains that evidence tending to show the crime occurred in the spring of 1980 should not have been permitted as time was an essential element of the crime and the indictment alleged the crime occurred in the fall of 1979. This error, argues the defendant, should have required the trial court to grant a motion for judgment of acquittal and should require this Court to reverse his conviction.
The defendant misapprehends the nature of the relief to which he may be entitled when there is variance between the date alleged in the indictment and the proof at trial. A criminal defendant has the right to demand the nature and cause of the accusation. Me.Const., art. I, § 6. The indictment here was sufficient to inform the defendant of the nature and cause of the accusation against him. See State v. St. Clair, Me., 418 A.2d 184, 189 (1980). A variance between allegation and proof at trial will justify the entry of a judgment of acquittal only when the State, as a result, fails to prove the crime alleged. No such failure occurred here.
With respect to the date of the offense "(t)he settled rule of law is that ... proof of the commission of the offense on any day within the statute of limitations regardless of the date alleged in the indictment is not a material variance unless it prejudices the defendant." State v. St. Clair, Me., 418 A.2d 184, 187 n.4 (1980), quoted in State v. Terrio, Me., 442 A.2d 537, 540. Given the circumstances of this case, we find no prejudice which occurred as a result of the variance between indictment and proof at trial. Carmichael did not move for a bill of particulars. See M.R.Crim.P. 16(c)(2). In the absence of the specificity provided by a bill of particulars a temporal variance between the allegations of the indictment and proof at trial is not fatal to this conviction.
We do not say that a criminal defendant who is surprised by evidence at variance from the allegations against him is without relief. Should a criminal defendant actually be surprised by the proof presented at trial he can, of course, assert surprise as...
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