State v. Wilcox

¶1(dissenting).

¶2I dissent.

¶3The constitutional right to fair notice of a criminal charge is the right of a defendant to be “apprised of the particulars of the charge [so as] to be able to ‘adequately prepare his defense.’ ” State v. Fulton, 742 P.2d 1208, 1214 (Utah 1987) (quoting State v. Burnett, 712 P.2d 260, 262 (Utah 1985), cert, denied, 484 U.S. 1044, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988)). See also State v. Robbins, 709 P.2d 771 (Utah 1985). *1035“Fair notice” requires that there be some relevant time period specified in the pleadings, at least if the evidence so permits, and it does in this case. In McNair v. Hayward, 666 P.2d 321, 326 (Utah 1983), the Court stated that “time is always an essential element of a crime in the sense that due process requires that an accused be given sufficiently precise notification of the date of the alleged crime [so] that he can prepare his defense.” (Emphasis added.)

¶4The Court balances a defendant’s constitutional right to fair notice of a relevant time frame against the exigencies of prosecuting a child abuse case. The majority opinion states that “a challenge to the constitutional adequacy of notice inevitably draws us into a generalized weighing of the completeness of the notice and its adequacy for defendant’s purposes against the background of the information legitimately available to the prosecuting authority.” When a constitutional right is “balanced” against a competing policy, there is the ever-present threat that the “balancing” results in the disappearance of the constitutional right. Here, the majority focuses solely on the difficulties presented to the prosecution in dealing with a very young child and gives no real weight to the constitutional right of fair notice. Although the majority gives lip service to a defendant’s right to notice, it holds that the right diminishes to whatever extent the exigencies of the prosecution require, and in this case, that means no notice at all in any realistic sense. Such a “right” is illusory, as is clear from the majority opinion:

We have suggested that so long as the elements of the crimes are covered by the factual allegations and the defendant is fully apprised of the State’s information regarding the time, place, and date of the crimes, any lack of factual specificity goes not to the constitutional adequacy of the notice, but to the credibility of the State’s case.

¶5(Emphasis added.) Thus, the defendant’s constitutional right to fair notice of when the crime charged against him occurred is transformed into some vague issue of “credibility of the State’s case.”

¶6As the majority opinion observes, our cases have not required that there be “certainty concerning the time, dates, or places where the abuse occurred,” but they do make clear that the due process right of notice is a substantial right. See McNair, 666 P.2d at 326. That right is not just a right of notice of the prosecution’s evidence; more importantly, it is the right of a defendant not to be confronted with a case that presents a moving target. That is what is involved here. The State has charged that Wilcox committed offenses “on or between January, 1985, and September 4, 1987,” but refuses to specify any particular time or period within that allegation.

¶7Thus, under the Court’s ruling, it is only necessary to apprise the defendant of the evidence against him for the entire time period, irrespective of whether that evidence provides any temporal notice to the defendant. However, the State need not bind itself to any particular time frame suggested by the evidence. Thus, the State can avoid a claim of variance and present a case that becomes a moving target for the defendant.

¶8The evidence indicates that a possible act of abuse may have taken place around Christmastime, but the State refuses to limit its case to that period, and the Court condones the State’s action. Now, the State may prove an act at that time or at any other time during the thirty-two-month period alleged. The charge of sodomy on a child is based solely on testimony of one person that there was a “possibility” (not a probability) that the child experienced anal penetration with some kind of object and that the “possible act” took place eight to ten weeks prior to the physical examination on which that testimony was based.1 Again, the State refuses to allege that as a relevant time period. In short, even though the evidence identifies a relevant *1036time frame for the sodomy charge, the State is free to contend that the “possibility” of sodomy occurred at any time during the thirty-two-month period alleged in the information. I think it is unconscionable to allow the State to place a defendant in such a position as Wilcox finds himself. In my view, the majority eviscerates the due process right referred to in McNair.

¶9The majority asserts that all the defendant loses by the prosecution’s inability to give some reasonable specification of dates and times is the ability to prepare an alibi defense. The majority states:

Therefore, Wilcox has no statutory or constitutional right to a charge framed so as to facilitate an alibi defense. Second, it is doubtful that an alibi defense is a realistic possibility because Wilcox had continual contact with the child half of the time over the thirty-two-month period.... Under these circumstances, we conclude that Wilcox has not shown any specific harm to his defense that he likely will suffer as a result of the lack of exact dates and times.

¶10Apart from the effect of the majority’s ruling, which makes an alibi defense impossible, there is no basis for the majority’s factual conclusion that the defendant has “no realistic possibility” of an alibi defense because Wilcox had “continual contact with the child half of the time over the thirty-two-month period.” If there were some time specification, the defendant might have an alibi defense during the time he had custody. The Court’s assertion is a self-fulfilling prophecy, since it is impossible to prove one’s whereabouts for a thirty-two-month period, or even half that time— the period the Wilcoxes had custody of the child.

¶11Other serious obstacles to the defense occur as a result of the lack of fair notice. The defendant has no realistic possibility of producing any other defense — except an attack on the prosecution’s case by cross-examination. The defendant will not be able to call any witnesses to testify as to his conduct on a given occasion because the prosecution will always be able to assert that the crime occurred on another occasion. Thus, the defendant is prevented from producing witnesses who might testify, for example, that on a particular occasion some alleged act of abuse was merely a hygenic act performed for the child or was some other innocuous and innocent activity. If the defendant waives his right not to testify, he may testify and deny that he ever abused the child, but such a denial against this charge is not likely to be effective, even if true. In short, when faced with a charge that abuse might have occurred at any time during a thirty-two-month period, a defendant is all but defenseless, except insofar as he can attack the prosecution’s witnesses on cross-examination.

¶12But even cross-examination will avail Wilcox little by way of a defense because the two key prosecution witnesses are a social worker and a psychologist whose testimony cannot be fairly cross-examined because they will testify to hearsay statements made to them by the child. Effective cross-examination regarding hearsay statements relayed by those witnesses is virtually impossible. Furthermore, the critical witness, the social worker to whom the child first made an accusation against the defendant, did not videotape her sessions with the child — a highly unprofessional lapse, in my view, and one that makes cross-examination even more futile.

¶13It follows from the majority opinion that an averment of a crime in the statutory language specifying covering the elements of the offense is all that is necessary to satisfy a defendant’s constitutional right of notice as to time, even though the evidence indicates that the allegations could be connected to a particular time. The result is paradoxical. The weaker and more amorphous the prosecution’s case is, the less notice the defendant receives and the less chance the defendant will have of defending, other than by cross-examination. In addition, the State’s case is rendered immune from a claim that there was a fatal variance. In short, although the defendant is presumed innocent, he is effectively stripped of any realistic possibility of defending against the charges.

¶14*1037In my view, the trial court, faced with a difficult issue, reached a correct and courageous conclusion. I would affirm the trial court. If the defendant goes to.trial on the information in this ease, the result is virtually foreordained.