State v. Wade

• Decision Date: 18 October 1989
• Docket Number: No. 23491,23491
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. John D. WADE, Jr., Appellant. . Heard

Page 780

409 S.E.2d 780

306 S.C. 79

The STATE, Respondent, v. John D. WADE, Jr., Appellant.

No. 23491.

Supreme Court of South Carolina.

Heard Oct. 18, 1989.

Decided Oct. 7, 1991.

Elmer W. Hatcher, Jr., Aiken, and South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen., Harold M. Coombs, Jr. and Amie L. Clifford, Columbia, and Sol. Robert J. Harte, Aiken, for respondent.

TOAL, Justice:

The sole issue presented in this appeal is whether an indictment should be quashed as unconstitutionally vague or overbroad if it alleges that a criminal offense occurred at some point within a two year time period. We hold that under the particular circumstances of this case, the trial judge acted properly in refusing to quash the indictment.

FACTS

The Appellant John Wade was tried for the offense of criminal sexual conduct with a minor in the first degree. The body of the charging indictment read as follows:

That John D. Wade, Jr. did in Aiken County at divers times during 1984 through 1985, wilfully and unlawfully commit a sexual battery upon [the victim], a minor of less than eleven (11) years of age, by performing digital penetration, to wit: by inserting his finger into the vagina of [the victim].

At trial, the victim testified that on one occasion sometime within the indictment period, the defendant, her uncle, touched her person "where he don't supposed to." (Tr. 4). ¹ The victim testified that the sexual episode with the defendant occurred in her grandparents' house in their bedroom. She further stated that she and the defendant were alone at the time of the offense. Dr. Charles Hewitt examined the victim in May of 1986 and testified at trial that in his medical opinion, because of his observation that the victim had an enlarged hymen, she had suffered digital vaginal penetration.

The defendant categorically denied any wrongdoing. He testified that he had never been alone with the victim, much less committed any sexual offense with her. He further testified that the incident could not have happened since his mother (the victim's grandmother) kept her bedroom locked at all times. The grandmother herself substantiated the defendant's testimony, confirming that her bedroom stayed locked. The victim's mother testified that her daughter admitted that her allegations against the defendant were false. ²

The jury did not believe the defendant, finding him guilty as charged. He was sentenced on July 21, 1988 to a term of imprisonment of thirty years, and this timely appeal followed.

LAW/ANALYSIS

The defendant complains that, because of the two year length of time specified in the indictment, he was unable to defend the charge against him. He contends that it is impossible for him to establish an alibi defense if he must account for his whereabouts on every day and night within the two year period. He urges that we adopt a per se rule that a two year indictment period is unconstitutionally overbroad. ³ We decline to adopt such a rule.

This Court has held that, "(a)n indictment is adequate if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and acquittal or conviction to be placed in bar to any subsequent prosecution." State v. Adams, 277 S.C. 115, 125, 283 S.E.2d 582, 587 (1981). We have also held: "the true test of the sufficiency of an indictment is not whether it could have been more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet." State v. Ham, 259 S.C. 118, 129, 191 S.E.2d 13, 17 (1972).

We have further stated that the sufficiency of an indictment must be judged from a practical standpoint, with all of the circumstances of the particular case in mind. State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981). The defendant would have us abandon this case-by-case approach when indictments spanning two years or more are before us. We think it inappropriate to create a per se rule of insufficiency based on a two year time limit, and we maintain our present approach.

If we adopted the per se rule that two years is simply too long for an indictment period, what would happen with the following scenario? Assume the severely decomposed remains of a victim are found in some woods. The murder weapon, a gun, is found buried five feet from the victim. The gun is registered to a certain individual. A search warrant is granted, and a search of the suspect's home produces proof positive that he is the killer. However, forensic experts cannot, because of the state of the victim's remains, state with specificity when the victim died. They opine that it could have been as long as four years ago but that it was certainly two years ago. The defendant, a recluse, invokes his right to remain silent, and the police cannot uncover any further evidence. Under the per se rule, the killer would be unindictable.

We do not agree with the defendant that he was unable to prepare a defense to the charge of the indictment because of the time span involved. On the contrary, the defendant proceeded with a defense of denial, and presented evidence of factual impossibility. The jury simply rejected these defenses. Because he possessed these other defenses, the defendant's argument that he was prejudiced by the indictment is severely weakened. See People v. Fritts, 72 Cal.App.3d 319, 140 Cal.Rptr. 94 (1977) (where defendant's alibi defense was not specific as to dates but total, in that he made blanket denial of ever having molested his stepdaughter, he was not prejudiced by manner of charging that lewd act occurred between May 1, 1973 and May 1, 1974). See also Covington v. State, 703 P.2d 436 (Alaska App.1985); State v. Roberts, 101 Idaho 199, 610 P.2d 558 (1980).

The defendant's logic that a two year indictment period is overbroad because one cannot possibly account for his whereabouts during that span is a slippery slope. In most situations, an individual probably could not account for his whereabouts on every day during a one year, six month, one month, or even shorter span. The defendant's contention is therefore not persuasive.

In this case, the indictment time span was narrowed as much as possible under the circumstances. The victim was eight years old at the time of trial. She testified that the sexual offense occurred on only one occasion. She was unable to pinpoint the exact date on which this offense took place. The defendant testified that he was in the vicinity of the victim at relatively few times. The defendant lived in Athens, Georgia for much of the time of the indictment period. He claimed that from March to May of 1984, he returned to North Augusta (where the victim resided) one night a week to visit his wife and children. After this, the defendant testified that he returned to North Augusta only four times through December of 1985. The first was Christmas Day in 1984; the second was over the July Fourth weekend in 1985; the third was a one day visit in August of 1985; and the fourth was for a wedding in October of 1985.

The jury could have determined that this young child had little concept of dates and time. Indeed, at trial the victim testified that she did not know her own age. The victim could have legitimately had real difficulty remembering the date on which the defendant committed his offense, instead only being capable of remembering that it happened sometime in 1984 or 1985. See State v. Swallow, 350 N.W.2d 606 (S.D.1984) (five month indictment period should be viewed leniently where victims are minors who cannot pinpoint with certainty when offenses occurred). See also State v. Bird, 292 N.W.2d 3 (Minn.1980); People v. Fritts, 72 Cal.App.3d 319, 140 Cal.Rptr. 94 (1977); State v. Wonser, 217 Kan. 406, 537 P.2d 197 (1975); State v. Rogers, 48 Idaho 567, 570, 283 P. 44, 45 (1929) ("(i)t would be a very weak rule of law that would permit a man to ravish a fifteen year old girl ... and then say in effect, 'you cannot convict me of this crime, as you did not guess the right date.' ") Moreover, the fact that the defendant can account for his whereabouts for most of the two year indictment period undercuts his argument that he could not prepare any alibi defense.

We note that we are not alone in approving of lengthy indictment periods when the circumstances of the case demand it. See United States v. Roman, 728 F.2d 846 (7th Cir.1984) (eleven year and five month indictment period approved); People v. Patrick, 38 Ill.2d 255, 230 N.E.2d 843 (1967) (two years, twenty days approved); Waitt v. Commonwealth, 207 Va. 230, 148 S.E.2d 805 (1966) (sixteen months approved).

The dissent relies upon State v. Brown, 24 S.C. 224 (1886) for the proposition that South Carolina law requires that the specific date of an alleged offense be set forth in the indictment. In citing this nineteenth century case, the dissent ignores a plethora of modern case law to the contrary. In State v. Peak, 134 S.C. 329, 340, 133 S.E. 31 (1926), we held "[i]t is not necessary to prove the precise day or even year laid in the indictment, except where time enters into the nature of the offense, or is made part of the description of it." See also State v. Rutledge, 232 S.C. 223, 101 S.E.2d 289 (1957); State v. Quarles, 261 S.C. 413, 200 S.E.2d 384 (1973); State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974).

Moreover, we have in the past specifically upheld the validity of an indictment that did not set forth the specific date (and apparently even hour, according to the dissent) of the alleged offense. State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981). See also State v. Sweat, 276 S.C. 448, 279 S.E.2d 375 (1981). We have also addressed the sufficiency of an indictment when alibi is raised as a defense, as here. In such a...