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Criminal Practice – Constitutional – Ineffective Assistance – Indictment – Conflicting Instructions – Homicide by Child Abuse

Bailey v. State (Lawyers Weekly No. 010-068-11, 10 pp.) (Donald W. Beatty, J.) Appealed from Aiken County Circuit Court. (Doyet A. Early III, J.) S.C. S. Ct. Click here for the full-text opinion.

Holding: The indictment alleged that petitioner killed the child-victim by striking him. During deliberations, the jury informed the court that it found no evidence that petitioner struck the child, and the jury asked about the “omission” part of “act or omission” in the homicide by child abuse statute. Petitioner received ineffective assistance of counsel when defense counsel did not object to the trial judge’s supplemental instructions, which allowed the jury to convict petitioner for reasons different from those alleged in the indictment.

Petitioner is entitled to a new trial.

Because the infliction of physical injuries was the specific act alleged in the indictment, petitioner asserts the jury was limited to a determination of whether he committed this act. Based on the foreman’s statement that the jury found no evidence that petitioner struck the child, petitioner claims the jury found a material variance between the act alleged in the indictment and the state’s proof.

Specifically, petitioner avers the jury convicted him of an unindicted crime as the jury found evidence of neglect rather than the specifically-alleged acts of abuse.  Given that the judge’s erroneous instructions precipitated this result, petitioner asserts his trial counsel was ineffective in failing to object to these supplemental instructions.

A material variance between charge and proof entitles the defendant to a directed verdict.

While a conviction may be sustained under an indictment which is defective because it omits essential elements of the offense, such is not true when the indictment facially charges a complete offense and the state presents evidence which convicts under a different theory than that alleged. A conviction under the latter circumstance violates principles of due process because the state has failed to prove beyond a reasonable doubt every fact necessary to constitute the crime with which a defendant was charged.

We conclude that the trial judge’s instructions improperly “enlarged” the indictment by instructing the jury that it could convict petitioner of a crime not alleged in the indictment.

The indictment charging petitioner with homicide by child abuse specifically alleged that petitioner “inflicted upon [the victim] physical injuries to his abdomen resulting in exsanguination and consequently the death of the child.” By its express terms, the indictment alleged that petitioner’s “act” resulted in the victim’s death. Significantly, it did not allege that the victim’s death was the result of an “omission” on the part of petitioner.

Thus, the indictment apprised petitioner that he had to defend only against the allegation that he inflicted the physical injuries resulting in the victim’s death.

A careful review of the jury’s questions and the ensuing discussion with the judge reveals that the jury focused on the terms of the indictment and recognized the alternative elements in the homicide by child abuse statute, i.e., an “act” versus an “omission.” The foreman of the jury then stated the jury found “no evidence” that petitioner struck the victim.

Based on this statement and the reference to the last line of the indictment, it is evident the jury was inquiring as to whether a finding of “neglect” on the part of petitioner was sufficient for a conviction under the statute.

The judge’s supplemental instructions, which were confusing and contradictory, resulted in the erroneous directive that the jury could find petitioner guilty of homicide by child abuse if it found an act of “abuse or neglect.” Such an instruction was in direct contravention of the specific act alleged in the indictment and, thus, constituted a material variance or a “constructive amendment” to the indictment.

We find that trial counsel not only failed to object to these jury instructions, but also acquiesced in the judge’s erroneous interpretation. Thus, counsel’s failure to object did not constitute a valid trial strategy.

Because the supplemental instructions created a material variance between the state’s evidence and the allegations in the indictment, we conclude that petitioner was prejudiced by trial counsel’s failure to object as this deficiency undermined confidence in the outcome of his trial. Accordingly, we hold trial counsel rendered ineffective assistance.

Reversed and remanded.

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