Two Complainants + One Charge = Unanimity Instruction

State v. Getz (HSC November 8, 2013)

Background. Chad Getz was charged with a single count of robbery in the second degree. The charging document alleged that Getz used force against “Angela Rueber and/or Jessie Saffery” and had the “intent to overcome Angela Rueber’s and/or Jessie Saffery’s physical resistance.” At his jury trial, two witnesses testified for the prosecution. Rueber and Saffery were loss prevention personnel at Nordstrum. One night, they saw on the surveillance cameras, Getz walk into the store with an Old Navy bag, take a coach purse and walk out of the “handbag department.” Rueber left the office to confront Getz and remained in contact with Saffery by radio. Rueber saw Getz walking toward the exit doors of Nordstrum. Rueber and a salesperson pursued him. Saffery saw what was happening on the video cameras and went to help Rueber and the salesperson. Getz left the store, and was walking toward a stairwell.

Rueber followed him and identified herself. She also ordered him to come back into the store. Getz turned to her and said “no, I’m not going anywhere with you” and turned and continued walking away. Rueber grabbed the purse, but Getz didn’t let go and kept walking down the stairs. They were playing a tug-of-war with the bag. Rueber positioned herself so that she had one hand on the bag with her other arm blocking the stairwell so Getz couldn’t go through. However, Getz “broke through” by pushing his weight and continued down the stairs. This struggle continued through three flights of stairs. Rueber kept trying to sweep Getz’s feet to make him lose balance, but Getz did not fall. He kept walking. He never punched, kicked, or threatened her. Saffery testified that she caught up to the pair and tried to help Rueber. Eventually, a police officer showed up and ordered Getz to stand down. He was compliant and was arrested at the scene. Saffery testified that before the officer arrived, Getz grabbed her arm, but was not clear when that happened.

The Trial Court Leaves out the Unanimity Instruction. The circuit court instructed the jury that one of the elements it must find beyond a reasonable doubt in robbery was that while committing a theft, the defendant “used his force against Angela Rueber and/or Jessie Saffery, a person who was present, with intent to overcome Angela Rueber and/or Jessie Saffery’s physical resistance[.]” The instruction was given by agreement.

During the settling of the instructions, the circuit court withdrew the following standard jury instruction regarding unanimity:

The law allows the introduction of evidence for the purpose of showing that there is more than one [act] [omission] [item] upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that [the same act] [the same omission] [possession of the same item] has been proved beyond a reasonable doubt.

Getz objected to the withdrawal, but the circuit court explained that “no Arceo is necessary” given these facts. The jury was never instructed that it had to agree unanimously as whom Getz used force against. At closing, the prosecution did not single out Saffery or Rueber. Instead, it simply referred to them collectively. The prosecution even focused on the either-or language in the instructions. The jury found Getz guilty as charged and the circuit court sentenced Getz to ten years prison, but reduced the mandatory minimum (he was a repeat offender) from ten to four years. Getz appealed on the grounds that there was insufficient evidence. The ICA affirmed.

The Right to a Unanimous Guilty Verdict. “[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, sections 5 and 14 of the Hawai'i Constitution.” State v. Arceo, 84 Hawaii 1, 30, 928 P.2d 843, 872 (1996). “[U]nanimity extends to all issues which are left to the jury.” Id. Thus, “an accused in a criminal case can only be convicted upon proof by the prosecution of every material element of the crime charged beyond a reasonable doubt, the constitutional precept also implicates the defendant’s right to due process of law[.]” Id.

And the Instructions that Protect that Right. In Arceo, the HSC held that “when separate and distinct culpable acts are subsumed within a single count . . . any one of which could support a conviction . . . 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 establish the ‘conduct’ element of the charged offense; or (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.

This second requirement has evolved into the Arceo instruction and has been made part of the standard pattern jury instructions. It is intended “to eliminate any ambiguity that might infect the jury’s deliberations respecting the particular conduct in which the defendant is accused of engaging and allegedly constitutes the charged offense.” State v. Valentine, 93 Hawaii 199, 208, 998 P.2d 479, 488 (2000). So the instruction is needed when the prosecution fails to make the election, the prosecution presents proof of two or more separate and distinct culpable acts, and it submits to the jury only one offense was committed. Id.

The Circuit Court Erred in Withdrawing the Instruction. The HSC held that there was a single count of robbery. The charge and the elements for the offense referred to “Rueber and/or Saffery.” There was no election by the prosecution. At closing, the prosecution referred to both of them and treated them collectively. Thus, it is quite possible that some jurors believed that Getz committed the offense against Rueber, while others figured it was Saffery, there might have even been a third group that believed the offense was committed against both of them. This case, according to the HSC, called for the Arceo instruction.

Not a Harmless Error. “[W]hen jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading.” State v. Mark, 123 Hawaii 205, 219, 231 P.3d 478, 492 (2010). The HSC must also consider if “there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.” Arceo, 84 Hawaii at 12, 928 P.2d at 854.

Here, Getz objected to the withdrawal of the unanimity instruction, but did not raise the issue before the ICA. However, the failure to give a required unanimity instruction is considered plain error. Id. at 33, 928 P.2d at 875. The HSC followed suit and found a reasonable possibility that the omission of this instruction contributed to the conviction. The error was not harmless beyond a reasonable doubt and it vacated the judgment and remanded for new trial.