State v. Twist

• Decision Date: 21 July 1987
• Citation: 528 A.2d 1250
• Parties: STATE of Maine v. Elwood TWIST.
• Court: Maine Supreme Court

Page 1250

528 A.2d 1250

STATE of Maine v. Elwood TWIST.

Supreme Judicial Court of Maine.

Argued Nov. 19, 1986.

Decided July 21, 1987.

David W. Crook, Dist. Atty., Alan P. Kelley (orally), Asst. Dist. Atty., Augusta, for plaintiff.

David A. Cloutier (orally), Matthew F. Dyer, Augusta, for defendant.

Before NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

SCOLNIK, Justice.

The defendant, Elwood Twist, appeals from a judgment entered by the Superior Court (Kennebec County), after a jury-waived trial, convicting him of two counts of rape (Class A), five counts of gross sexual misconduct (Class A), and one count of unlawful sexual contact (Class C) involving five different children, ranging in age from 5 to 17 years. He contends that 1) the indictment should have been dismissed for the failure of the grand jury to vote separately on each count, 2) the court erred in allowing an amendment to two counts of the indictment in the middle of the trial, 3) his rights to confrontation under the Maine and United States constitutions were violated by the admission into evidence of videotaped testimony of alleged child victims of sex offenses, and 4) the evidence was insufficient to support the convictions. We vacate the judgments on counts 1 and 2 and affirm the judgments on counts 3, 5, 7, 8, 9 and 11. ¹

On November 9, 1984, a Kennebec County Grand Jury returned a 12 count indictment against the defendant consisting of 2 counts of rape, 17-A M.R.S.A. § 252, 5 counts of gross sexual misconduct, 17-A M.R.S.A. § 253, and 5 counts of unlawful sexual contact, 17-A M.R.S.A. § 255. The court appointed counsel for the defendant, who was arraigned on November 13. He entered a plea of "not guilty" to all counts. On December 17, 1984, after hearing, the Superior Court denied the defendant's motions for disclosure of matters before the grand jury and for relief from prejudicial joinder. Contending that the grand jury had not voted separately on each count of the indictment, the defendant subsequently moved to dismiss the indictment. The Superior Court denied that motion on April 18, 1985. On May 6, the State filed a motion for an in camera hearing and videotaping of sexual abuse victims pursuant to 15 M.R.S.A. § 1205 (Supp.1984), subsections 1 and 2 repealed and replaced by P.L. 1985, ch. 495, § 1 (effective September 19, 1985). On June 19, after hearing, the Superior Court granted the State's motion. The defendant's jury-waived trial commenced on June 26. On the day of trial, the State filed a motion to amend counts 1 and 2 of the indictment. That motion was heard at trial and granted. The Superior Court received in evidence videotaped depositions of two children alleged to have been victims of sex abuse perpetrated by the defendant. The court and the parties viewed the videotaped testimony at trial. On June 27, 1985, the court entered the judgments of conviction from which the defendant appeals.

I.

The defendant argued before the Superior Court and now argues on appeal that Article I, section 7 of the Maine Constitution guarantees a defendant in a criminal case the right to have a separate vote by the grand jury on every count of a multiple count indictment such as the one returned against him in this case. ²

The defendant's argument is without merit. The first sentence of Rule 6(i) of the Maine Rules of Criminal Procedure provides that "[a]n indictment may be found only upon the concurrence of twelve or more jurors" (emphasis added), and Rule 8 provides that "[t]wo or more offenses may be charged in the same indictment ... in a separate count for each offense ..." (emphasis added). Article I, section 7 of the Maine Constitution speaks only in terms of the requirement of an "indictment," not separate votes on offenses within a single indictment. ³ Thus, neither the Maine Rules of Criminal Procedure nor the Maine Constitution requires the grand jury to vote separately on each offense in a single indictment.

Our conclusion is supported by analogous federal authority. The first sentence of Rule 6(i) of the Maine Rules of Criminal Procedure tracks the language of Rule 6(f) of the Federal Rules of Criminal Procedure. See generally 1 Cluchey & Seitzinger, Maine Criminal Practice, at 6-5 (1986). Article I, section 7 of the Maine Constitution also tracks the language of the fifth amendment to the United States Constitution. Federal courts hold that it is not necessary for grand jurors to vote separately on each count of an indictment. E.g., United States v. Felice, 481 F.Supp. 79, 82 (N.D.Ohio 1978); United States v. Winchester, 407 F.Supp. 261, 278 (D.Del.1975).

We agree with these decisions and hold that the defendant was properly indicted by the grand jury, regardless of whether or not they voted separately on each count.

II.

We do find meritorious, however, the defendant's challenge to the State's mid-trial amendment of the indictment.

Because counts 1 and 2 had charged the defendant with rape by defining "compulsion" by reference to an amendatory statute that became effective subsequent to the commission of the crimes charged, the State moved to amend these counts to have them comport with the statute in effect when the offenses were alleged to have been committed. The two counts in question charged that on two separate occasions, in 1978 and 1979, respectively, the defendant's daughter submitted to sexual intercourse with the defendant "as a result of compulsion as defined in Title 17-A M.R.S.A. Section 251(1)(E)." The cited statute did not become effective until 1981. P.L.1981, ch. 252, § 1 (effective September 18, 1981).

In 1978 and 1979, the applicable statute provided:

1. A person is guilty of rape if he engages in sexual intercourse:

* * *

B. With any person, not his spouse, and he compels such person to submit:

(1) by force and against the person's will....

17-A M.R.S.A. § 252(1)(1979). The statute was amended by P.L.1981, ch. 252, to include an explicit definition of compulsion as "physical force, a threat of physical force or a combination thereof which makes a person unable to physically repel the actor...." 17-A M.R.S.A. § 251(1)(E) (1983) (emphasis added). Thus, by indicting the defendant under the 1983 definition of compulsion, the grand jury erroneously treated "threat of physical force" as an element of the crimes charged.

Rule 7(e) of the Maine Rules of Criminal Procedure provides:

The Court may permit the amendment of an indictment charging an offense other than a Class D or Class E crime at any time before verdict or finding if the amendment does not change the substance of the offense. (Emphasis added.)

The defendant argues that because the amendment changed the substance of the offense, the condition of the rule prevented its allowance. We agree.

In State v. Hathorne, 387 A.2d 9, 11 (Me.1978) this Court stated that "to amend the indictment in substance, without resubmitting it to the grand jury, would cause the indictment to be other than the one returned by the grand jury," in violation of Article I, Section 7 of the Maine Constitution. We have said that "[a] substantive amendment is one that changes the nature or grade of the offense charged." State v. Larrabee, 377 A.2d 463, 465 (Me.1977).

In Hathorne, we held "that where no prejudice to the defendant will result an indictment may be amended at trial in matters of form without the need for resubmission of the indictment to the grand jury." 387 A.2d at 12.

The amendment in the case before us is not merely one of form. The indictment defined one element of the crimes charged in accordance with a statute that did not become effective until two and three years, respectively, after each of the crimes were allegedly committed. This statute, which became effective in 1981, expanded the previous element of compulsion by force in the crime of rape to include, by definition, a "threat of physical force." The crimes alleged in counts 1 and 2 of the indictment allegedly occurred in 1978 and 1979, however, at which time "compulsion" in the alleged commission of "forcible rape" did not include a "threat of physical force." See State v. Colson, 405 A.2d 717 (Me.1979). As a result, the amendment did indeed change the nature of the offense charged and was therefore a substantive change in the indictment. See State v. Larrabee, 377 A.2d at 465. We therefore conclude that the court erred in permitting an amendment of counts 1 and 2 of the indictment because such an amendment was not authorized under Rule 7(e) of the Maine Rules of Criminal Procedure. The indictment may only be amended on this matter of substance by a resubmission of the case to the grand jury. State v. Hathorne, 387 A.2d at 11.

III.

We now turn to the Confrontation Clause issues raised by the defendant.

On May 6, 1985, the State filed a motion requesting the court to allow the testimony of two alleged child victims of sexual abuse by the defendant to be videotaped pursuant to 15 M.R.S.A. § 1205 (Supp.1984), subsections 1 and 2 repealed and replaced by P.L.1985, ch. 495, § 1 (effective September 19, 1985). ⁴ The hearing on the motion was held on June 19, 1985, one week before trial. The State presented testimony from the children's foster parent, Dr. V., a qualified expert in the field of pediatric psychiatry. ⁵

Dr. V. testified that two children, referred to herein as Jane and John Doe, who are brother and sister, started living at his home on June 28, 1984, when they were 5 and 7 years old, respectively, shortly after experiencing alleged sexual abuses by the defendant. ⁶ He testified that when the children arrived at his home they "acted out" sexually about 95 percent of the time: John would urinate on his sister to awaken her, the children interacted sexually, they demonstrated sexual intercourse with dolls, John constantly discussed and demonstrated the way his mother looked while in the act of sexual intercourse, and he attempted to teach a two-year old how to masturbate....