Unanimity Instruction Required when Jury not Informed of Which Acts Correspond to Which Counts

State v. Pecpec (HSC March 20, 2012)

Background. Orlando Pecpec was charged with 25 counts of violation of a protective order. HRS § 586-11(a)(1)(A). The language for all counts were identical except for the date of the alleged offense:

On or about [date], in the City and County of Honolulu, State of Hawaii, [Pecpec] did intentionally or knowingly violate the Order for Protection issued in FC-DA No. 08-1-1887, filed on the 15th day of September, 2008 . . . thereby committing the offense of Violation of an Order for Protection.

Counts 1-6 allegedly occurred on October 19, 2009; count 7 on Oct. 22; counts 8-15 and 18-22 on November 6, 2009. Counts 16 and 22-25 allegedly took place on November 7, 2009; and count 17 on November 8.

At trial, the complainant, Pecpec's ex-wife, testified that they were married for ten years and had five children together. On September 15, 2008, she got a protective order against Pecpec. The order expires in 2013. The order prohibited Pecpec from contacting his ex-wife by phone or text messages but permitted contact for attendance of courtroom proceedings and serve "legal documents by mail or through a process server."

She testified that on October 19, 2009, Pecpec left her with six voicemails on her office telephone. She could not recall the specific time or content of the messages. She testified that she received more messages on Oct. 22, Nov. 6, 7, and 8. She recorded the messages and turned them over to the prosecutor's office. They were admitted into evidence as Exhibits 13 through 23. The voicemail left on Oct. 22 was recorded onto Exhibit 23. Exhibits 15-22 were the eight voicemails she received on Nov. 6, 2009. A voicemail on Nov. 7 was recorded on Exhibit 14. Another message on Nov. 8 was recorded on Exhibit 13.

In addition to voicemails, the complainant testified that she received text messages from Pecpec on Nov. 6 and 7. Photographs of the text messages were admitted into evidence as Exhibits 5-12. The complainant testified that Exhibits 5-9 were the four text messages she received on Nov. 6, and Exhibits 10-12 were the three she received the next day.

Neither party requested a unanimity instruction. The family court did, however, instruct the jury that the verdict "must be unanimous." The family court instructed that Pecpec "engaged in certain conduct, namely contacting or threatening [the complainant] by either telephone or recorded message" as the conduct elements in counts 1-17. Each count had a specific date. For counts 18-25, the family court instructed that Pecpec "engaged in certain conduct, namely contacting or threatening [the complainant] by text message" as the conduct elements. During closing argument, the prosecutor matched the admitted exhibit to the charged count. The jury found Pecpec not guilty of counts 1-6 (the voicemails on October 19), but guilty of the remaining 19 counts.

The family court sentenced to one year per count running concurrently except for count 13, which was based on the recorded message in Exhibit 17. The family court explained that that message was particularly egregiousness and sentenced Pecpec to one year in jail running consecutively. Pecpec appealed. The ICA affirmed; Judge Reifurth dissented.

Unanimity Instruction is a Matter of Right in two Situations . . . Pecpec argued that the family court erred in not instructing the jury about a unanimous verdict. The right to a unanimous jury verdict is guaranteed by the Sixth Amendment to the U.S. Constitution and article I, section 5 of the Hawai'i Constitution. State v. Arceo, 84 Hawai'i 1, 30, 928 P.2d 843, 872 (1996). The unanimity instruction comes into play when multiple acts are subsumed into a single count.

[W]hen separate and distinct culpable acts are subsumed with a single count . . . and the defendant is ultimately convicted by a jury of the charged offense, the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to elect the specific act upon which it is relying to establish the "conduct" element of the charged offense; 0r (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.

Id. at 32-33, 928 P.2d at 874-75.

Later, the HSC held that the unanimity instruction is required even in cases where there are no distinct and multiple acts in State v. Mundon, 121 Hawai'i 339, 219 P.3d 1126 (2009). The HSC held that when the defendant is charged with two distinct counts, but the jury only finds the defendant guilty of a single count, "there is a genuine possibility that different jurors concluded that [the defendant] committed different acts[.]" Id. at 354-55, 219 P.3d at 1141-42. Thus, "to correct any potential confusion . . . , a specific unanimity instruction should have been given to ensure that the jury understood its duty to unanimously agree to a particular set of facts[.]" Id.

. . . and now the Third Situation. The HSC noted that in Mundon the jury acquitted the defendant of one of the charged counts and that the error arose because it was unclear whether the jury understood that it had to be unanimous as to which set of facts constituted the offense. The HSC noted that the inherent problem in this situation is that "a trial court cannot decide to give a unanimity instruction after the jury returns its verdict." Thus, Mundon implies that the unanimity instruction is required "where the number of acts charged is identical to the number of acts offered in evidence, but the jury is not informed as to which act coincides with each count."

Here, Pecpec was charged with 25 counts and there was evidence of each distinct and separate act. However, the record did not show that the jury was informed which act corresponded with each count. The family court's failure to give a unanimity instruction is error.

But it's Harmless Error. Erroneous instructions require a reversal "unless it affirmatively appears from the record as a whole that the error was not prejudicial." Id. at 349, 219 P.3d at 1136. In other words, an error is not harmless beyond a reasonable doubt if there "is a reasonable possibility that error might have contributed to conviction." Arceo, 84 Hawai'i at 12, 928 P.2d at 854. The HSC found the error harmless beyond a reasonable doubt. In this case, the counts to which Pecpec was found guilty directly corresponded to the distinct exhibits admitted at trial. According to the HSC, there was a distinct one-to-one relationship between the counts and the exhibits. It was clear that the jury was unanimous in its decision for each count. This left no reasonable possibility that the failure to instruct the jury on a unanimous verdict contributed to the conviction.

An Attempted Arceo Election? The HSC held that the failure to provide a unanimity instruction was error when the number of acts charged is identical to the number of acts offered into evidence but the jury is not told which act coincides with each count. What about an Arceo election by the prosecutor? Didn't the prosecutor do exactly that during closing argument? According to the HSC, the answer is no. The record "does not reflect that the jury was informed of the act that corresponded with each count." This holding makes the question of what constitutes an Arceo election even more intriguing. The prosecutor did connect the exhibits to the charges:

Now, let's look first at the voice mails. The voice mails are grouped in terms of the dates of incident. Counts [1] through [6] are from October 19, 2009; Count [7] is from October 22; Counts [8] to [15] are November 6; Count [16] from November 7; and Count [17] is from November 8.

Now, you listened to the voice mails. These mails are also associated with these dates. Exhibit 23 is the voice mail from October 22; Exhibit[s] 15 to 22 are from November 6; Exhibit 14 is from November 7; Exhibit 13 is from November 8.

Switching now to the text messages. Counts [18] to [25], they are also grouped in terms of the dates of incident. Counts [18] to [22] are from November 6; Counts [23] to [25] are from November 7. For each of these text messages there are exhibits. Exhibits 5 through 9 are the text messages from November 6; and Exhibits 10 to 12 are the text messages from November 7.

This apparently did not constitute an Arceo election. Grouping the exhibits to a group of counts probably came close, but it still missed the mark. Then again, connecting Exhibit 23 directly corresponding with count 7--the single count alleged on October 22--is not extremely close. Wasn't that good enough? No, according to the HSC. Justice Acoba fleshed this out in his dissenting opinion. An election has to occur at or before the end of the prosecution's case-in-chief. State v. Kassebeer, 118 Hawai'i 493, 509, 192 P.3d 409, 425 (2008). This was too late.

But because it was close, it contributed to the harmlessness of the failure to give the instruction. Does this mean that when the prosecutor attempted to make an Arceo election, but misses the mark--it will most likely be harmless error for the trial court to not give the instruction? Probably. The framework from Arceo may bend here, but it is not broken. An attempted Arceo election like this one certainly makes the error more likely to be harmless. But even then, there are still possibilities where the failure to give the instruction creates a reasonable possibility that the failure to provide the instruction contributed to the conviction despite the prosecutor's failed Arceo election.

The Family Court Abused its Discretion in the Consecutive Sentence. The HSC moved on to review the consecutive sentence. Pecpec argued that the consecutive sentence was improper because which of the many alleged acts on November 6, 2009 constituted Count 13. A criminal sentence must be imposed in relation to the specific offense. HRS § 706-605. Here, the complaint did contain specify any time of day for the eight alleged offenses committed on November 6, 2009. Thus, it is impossible to know whether the jury intended the egregious message on Exhibit 17 to correspond particularly with Count 13. In fact, given the police report numbers on the complaint, Exhibit 17 actually corresponds with Count 10. Thus, the family court erred in sentencing Pecpec in this particular count based on that particular exhibit.

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the majority that the sentence must be vacated, but dissented on all other grounds. Justice Acoba believed that the prosecutor did not elect the specific exhibit that was being offered in support of each count so the family court had to provide a specific unanimity instruction. The failure to give that instruction was not harmless beyond a reasonable doubt. Justice Acoba agreed with Judge Reifurth that nothing prevented an individual juror from concluding that a single exhibit was sufficient evidence to support any or more conviction occurring on that particular day. To avoid this in the future, Justice Acoba wrote that courts should be required to provide an instruction even if there is an election.

Justice Acoba pointed out that the majority's holdings on both issues are inconsistent with each other. The majority seemed to have acknowledged that the verdict for Count 13 was not unanimous because it is impossible to determine what exhibit was agreed upon by the jury to convict him. According to Justice Acoba, "[i]f there cannot be assurance that the verdict was unanimous as to the alleged act on Count 13, the verdict cannot be assured to be unanimous as to a specific act with respect to each of the other counts." Justice Duffy joined.