State v. Saluter

• Decision Date: 30 June 1998
• Docket Number: No. 96-380-C,96-380-C
• Citation: 715 A.2d 1250
• Parties: STATE v. Glenn A. SALUTER. A.
• Court: Rhode Island Supreme Court

Page 1250

715 A.2d 1250

STATE v. Glenn A. SALUTER.

No. 96-380-C.A.

Supreme Court of Rhode Island.

June 30, 1998.

Annie Goldberg, Assistant Attorney General, Aaron Weisman, Assistant Attorney General for Plaintiff.

John A. Macfadyen, III, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the appeal of the defendant, Glenn A. Saluter (defendant). Following a jury trial in the Superior Court, the defendant was convicted of nine counts of sexual assault. For the following reasons, we affirm two of the convictions and vacate the remaining seven. The facts insofar as they are pertinent to this appeal follow.

Facts and Procedural History

On March 8, 1994, defendant was charged by indictment with two counts of first-degree sexual assault in violation of G.L.1956 §§ 11-37-2 and 11-37-3, four counts of first-degree child molestation in violation of §§ 11-37-8.1 and 11-37-8.2, and three counts of second-degree child molestation in violation of §§ 11-37-8.3 and 11-37-8.4. The counts related to offenses that occurred between April 1, 1984, and April 30, 1987. The complaining witness, whom we shall call Amy, was the daughter of defendant's then-girlfriend with whom he lived for significant portions of the period circumscribed in the indictment. Amy, who was born in March 1976, was under thirteen years of age at all times pertinent to the charges.

Shortly after he was charged, defendant moved for a bill of particulars pursuant to Rule 7(f) of the Superior Court Rules of Criminal Procedure. A redacted version of the state's response to the motion is included as an appendix to this opinion. ¹ In the bill of particulars, the state alleged that defendant committed the acts charged in seven of the counts on multiple occasions. For example, count 1 as specified by the bill of particulars alleged that during the period from April 1, 1984, through June 24, 1985, "defendant committed cunnilingus on the complainant more than once, and with a frequency of approximately more than once per week during the period." In only two of the nine counts, namely, count 5 and count 8, did the state allege a single incident of the conduct charged in that count.

The defendant subsequently filed a motion to dismiss, challenging the sufficiency of the bill of particulars and asserting that the charges against him were duplicitous, in violation of Rule 8(a) of the Superior Court Rules of Criminal Procedure. Moreover, defendant alleged, the charging papers deprived him of the minimum notice required under the Federal Constitution and the laws of Rhode Island, such that he faced a risk of being convicted for offenses that were not in fact the basis for the proffered charges. The state argued that no per se rule against duplicity exists in Rhode Island and claimed that the bill of particulars should be accepted as adequate because "the victim's memory, in this and many cases like it, is not sufficiently firm for the State to have pleaded the case in the way that the defendant urges that it must." The state also suggested that the trial court reexamine the law of sexual assault and child molestation and define sexual assault as a continuing offense. The defendant's motion to dismiss was denied after the trial justice concluded that the indictment charged "nine specific acts" and had afforded defendant adequate notice. The justice also reassured defense counsel that appropriate jury instructions would alleviate any danger that the acts considered by the petit jury as the bases for its verdicts might not correspond to those acts charged by the grand jury.

The state presented Amy and her mother as its witnesses at trial, and their testimony constituted the whole of the state's case. No medical or physical evidence was offered. The defendant testified in his own defense and denied the accusations in their entirety.

The undisputed testimony established that defendant, who also maintained a home in Maryland, had begun living with Amy and her mother "as a family" in 1983. He subsequently lived with them at several different addresses in West Warwick between 1984 and 1987. Amy testified that defendant "was a father figure" to her and that he frequently was at home with her after she returned from school. The defendant acknowledged that he was alone with Amy in the evenings as often as several times a week during the period in question, although he claimed that he cared for her less often than Amy contended.

Despite the prosecution's earlier assertions that Amy's memories were imprecise, she was able at trial to recall a number of specific incidents of the charged conduct. For example, Amy recounted several specific occasions when defendant either committed cunnilingus on her or digitally penetrated her vagina. She described these assaults in great detail that need not be repeated here. She also described such abuse in more general terms, however. For example, she testified that defendant would digitally penetrate her while watching pornographic movies "maybe once a month." The transcripts of the trial indicate that there was confusion at times among the parties' counsel and the trial justice concerning what portions of Amy's testimony corresponded to the acts charged in the various counts of the indictment.

The jury convicted defendant on all nine counts. The defendant's motion for a new trial was denied by the trial justice, who remarked that "the jury's verdict was a fair verdict, based upon the evidence which had been presented." The defendant filed a timely appeal to this Court in which he raised two issues. First, he argued that the nature of the indictment and the bill of particulars, coupled with the nature of the evidence admitted and the trial justice's failure to give a unanimity instruction to the jury, resulted in uncertainty over whether "the conduct which formed the petit jury's basis for decision was the same conduct for which the indictment had been returned." Second, defendant contended that "the trial court committed reversible error in its instructions to the jury."

Bill of Particulars and Defects of Notice

The most serious charge that defendant has raised against his prosecution and conviction is that the counts asserted against him were duplicitous, that is, they included multiple charges of the offense within a single count. The defendant maintained that, when coupled with the evidence presented against him, the duplicitous charging created the danger that he was convicted of offenses that were not charged by the grand jury's indictment or that he was convicted by a less than unanimous petit jury. In essence, defendant argued that the cumulative effect of these errors was such that he was deprived of his fundamental right to due process. Minimal due process requires that a defendant be afforded "adequate notice of the offense with which he is charged." State v. Hendershot, 415 A.2d 1047, 1048 (R.I.1980). It is a corollary and equally axiomatic principle of due process that a "person charged with a particular offense cannot be convicted of another and distinct offense even though the other is closely related or of the same general character." In re Fiske, 117 R.I. 454, 456, 367 A.2d 1069, 1071-72 (1977).

A Duplicity

The term "duplicity" refers to the joining of two or more offenses, however numerous, in a single count of an indictment. See State v. Mollicone, 654 A.2d 311, 321 (R.I.1995) ("Duplicity is defined in the criminal context as '[t]he joining in a single count of two or more distinct and separate offenses.' ") (quoting Black's Law Dictionary 503 (6th ed.1990)). The unforgivable infirmities of duplicity have been amply catalogued. The Second Circuit has explained that

"[i]mportant policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether the jury found defendant guilty of only one crime and not the other, or guilty of both. * * * Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached an [sic ] unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant's rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a subsequent prosecution." United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980).

The nine counts of the indictment in this case all used the same formulaic language in setting forth the charges against defendant. Count 3, for example, charged that

"GLENN A. SALUTER, alias John Doe, of the State of Maryland, on a day and dates between June 25, 1985, and December 31, 1986, at West Warwick, in the County of Kent, did engage in sexual penetration, to wit, cunnilingus, with [Amy], a person under thirteen (13) years of age, in violation of § 11-37-8.1 and § 11-37-8.2 of the General Laws of Rhode Island, 1956, as amended (Reenactment of 1981)." (Emphasis added.)

Each count of the indictment used the phrase "on a day and dates" to describe the period of the act, or acts, charged in the indictment. It is not clear from the indictment whether defendant was charged with a single act or multiple acts in each count. Thus, an apparent, or at least arguable, issue of duplicity inhered in the indictment itself, irrespective of the content of the bill of particulars.

Although the description "day and dates" used in the indictment was regrettable, it did not render the indictment defective per se. So-called short-form charging is authorized in Rhode Island, and an indictment may track the words of the statute criminalizing the act being charged. See G.L.1956 § 12-12-1.4 ("An indictment, information, or complaint...