A divided jury can still be unanimous (sometimes)

 State v. Tran (HSC June 4, 2024)

Background. In 2006, the Hawai'i Constitution was amended to get around the ruling in State v. Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996):


In continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define:

1. What behavior constitutes a continuing course of conduct; and

2. What constitutes the jury unanimity that is required for a conviction.


Haw. Const. Art. I, Sec. 25. With that the Legislature passed HRS § 707-733.6. The conduct element requires proof of “three or more acts of sexual penetration or sexual contact with a minor over a period of time, while the minor is under the age of fourteen years.” HRS § 707-733.6(1)(b). The jury need not be unanimous as to which of the three:


To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.


HRS § 707-733.6(2).


Alvin Tran was indicted with a single count of continuous sexual assault of a minor under the age of 14 in violation of HRS § 707-733.6. Here is conduct element in the indictment:


On or about January 1, 2015 to and including January 31, 2020, in the City and County of Honolulu, State of Hawai'i, ALVIN TRAN, . . . did intentionally or knowingly engage in thre or more acts of sexual penetration and/or sexual contact with [a minor] over a period of time, while [the minor] was under the age of fourteen years[.]


At trial, the prosecution presented evidence that Tran was the minor’s family friend and she knew Tran from birth. The minor testified that Tran lived with her father at times and she would see him at her father’s house. She testified that between the ages of eight to twelve, Tran touched her “private areas,” “put his lips on my lips,” and touched her “private areas” with his mouth. Tran argued that the minor child was not credible.


The circuit court, the Hon. Judge Catherine Remegio presiding, instructed the jury that it did not have to agree as to which of the three acts constitute the conduct:


As to Element No. 1, you need to unanimously agree only that the requisite number of acts have occurred; you need not agree on which acts constitute the requisite number.


The jury returned a guilty verdict. The circuit court polled the jury, and all agreed with the verdict. There was no further inquiry about the conduct.


Tran moved for a new trial. He argued that the Hawai'i Constitution’s provision letting the Legislature decide what is and what is not “unanimity” violates the Sixth Amendment to the United States Constitution. The motion was denied.


Tran also moved to dismiss the indictment on the grounds that it lacked specific notice about which of the three acts constituted the conduct. The motion was based on the holding in State v. Jardine, 151 Hawai'i 96, 508 P.3d 1182 (2022). The circuit court granted the motion and dismissed the case without prejudice.


The prosecution appealed from the dismissal order. Tran cross-appealed the denial of the motion for new trial. The case was transferred to the Hawai'i Supreme Court.


The Sixth Amendment requires unanimity on the offense—not the specific facts that make up the conduct. The HSC first addressed the Sixth Amendment challenge. It rejected Tran’s argument that relied heavily on Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390 (2020).


The Sixth Amendment ensures that defendants have the right to a jury trial and demands that jury verdicts be unanimous. In Ramos, the SCOTUS held that the Sixth Amendment forbids the States from allowing juries to reach non-unanimous verdicts in criminal cases. Id. 140 S.Ct. at 1397. The HSC, however, noted that “[n]othing in Ramos suggests that the U.S. Supreme Court sought to prohibit the people of a state from empowering juries to return guilty verdicts where all jurors agree as to guilt but do not necessarily agree on which specific acts that guilt is predicated on.” The HSC determined that Ramos does not address the issue presented by Tran.


In fact, the HSC noted that the SCOTUS “has long recognized” disagreement among the conduct element:


The question before us arises because a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say which of several possible means the defendant used to commit an element of the crime . . . . Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement—a disagreement about means—would not matter so long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.


Richardson v. United States, 526 U.S. 813, 817 (1999). The HSC surveyed cases that have “confirmed” that Ramos has not changed this rule. Ultimately, it held that the Sixth Amendment is not violated because Ramos “does not address guilty verdicts returned by all jurors, notwithstanding potential disagreement as to the means by which a defendant committed an element of a charged continuing offense.”


The Hawaii Constitution does not empower the Legislature to permit nonunanimous verdicts so it does not violate the federal constitution. Article I, Section 25 of the Hawai'i Constitution allows the Legislature to determine “[w]hat constitutes the jury unanimity that is required for a conviction.” Tran argued that this provision is unconstitutional because the Legislature cannot pass laws that require less than a unanimous verdict.


“[T]he Hawai'i Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent[.]” Hawai'i State AFL-CIO v. Yoshina, 84 Hawai'i 374, 376, 935 P.2d 89, 91 (1997). The intent is “found in the instrument itself.” Id. And when “the words used in a constitutional provision are clear and unambiguous, they are to be construed as they are written.” Id. Finally, the words “are presumed to be used in their natural sense unless the context furnishes some ground to control, qualify or enlarge them.” Malahoff v. Saito, 111 Hawai'i 168, 181, 140 P.3d 401, 414 (2006).


The HSC focused on the word “unanimity” in Article I, Section 25. That word means “the agreement and consent of all.” And for the HSC that meant that all twelve jurors have to agree to return a guilty verdict. This does not undermine Ramos and the provision “cannot be read to empower the legislature to authorize juries to return nonunanimous guilty verdicts.”


The equal protection claim. Tran raised an equal protection claim. He argued that the constitutional provision and HRS § 707-733.6 creates two classes of people: those who are charged continuous sexual assault and those charged with any other crime who enjoy the benefits of Arceo.


“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). At the same time it does not forbid “the State from passing laws which treated class of people differently, but only from treating classes differently when the basis of the discrimination does not bear a rational relationship to a legitimate statutory objective.” State v. Bloss, 62 Haw. 147, 153, 613 P.2d 354, 358 (1980). Tran did not claim that the different treatment based on race, gender, or other protected class. And so the HSC reviewed the challenged provisions under the rational basis test. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001).


Article I, Section 25 and HRS § 707-733.6 were a reaction to State v. Arceo, which requires jurors to unanimously agree on specific criminal acts. Arceo, 84 Hawai'i at 32-33, 928 P.2d at 874-75. Delving into history behind the provisions, it was clear that the Legislature intended to “make it easier to prosecute those who repeatedly sexually assault a child.” According to the HSC, that made it clear it was intended to protect children and enhance public safety by allowing jurors to disagree about which specific acts constituted the conduct of the offense. This was rationally related to a legitimate purpose and did not offend the Equal Protection Clause.


A Comment: A new kind of polling? A new kind of verdict form? This distinction between a unanimous verdict and less-than-unanimous agreement on the conduct element raises troubling questions. The record here is unclear as to which of the three instances constitute the conduct. We only know that the jury was unanimous about the entire offense.


So how can we be sure? Can and should trial courts poll the jury about which acts they agreed upon? Isn’t that what defendants should do? Moreover, if there were hundreds of instances of sexual contact over a five-year period, shouldn’t there be a more specific inquiry as to where the jury stands? The record is unclear with a simple guilty/not-guilty verdict form. To ensure that the jurors are truly unanimous and complying with the Sixth Amendment, special interrogatories and better polling are needed.


Oh, and the indictment was sufficient too. The HSC turned to the prosecution’s appeal. First, it clarified the level of scrutiny that applied to assessing the indictment. Defendants enjoy the right “to be informed of the nature and cause of the accusation” against them. Haw. Const. Art. I, Sec. 14. Defendants can challenge the indictment “any time during the pendency of the proceeding.” State v. Sprattling, 99 Hawai'i 312, 318, 55 P.3d 276, 282 (2002).


The “liberal” construction applies after verdict. A post-conviction challenge triggers a different standard. State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983); State v. Wells, 78 Hawai'i 373, 894 P.2d 70 (1995). In those cases, the court will not dismiss a defective indictment “unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime.” State v. Motta, 66 Haw. at 91, 657 P.2d at 1020. It is presumed valid. State v. Sprattling, 99 Hawai'i at 318, 55 P.3d at 282.


The HSC acknowledged that “occasionally” stated that this standard only applies when raised for the first time on appeal, but it has never applied exclusively to challenges on appeal. It thus held that when the challenge is raised after the verdict, it is considered “post-conviction” and the Motta-Wells standard applies.


Under the liberal construction the indictment was not defective. The HSC applied the liberal construction here. It asserted all of the elements of the offense and there was no need for the prosecution to “descend to the particulars” here. See State v. Jardine, 151 Hawai'i at 101-02, 508 P.3d at 1187-88. The HSC held that Tran did not show he was prejudiced by the indictment’s pleading because nothing showed he “was misled or would have defended the case differently if the indictment contained the additional” details. His defense was that the assaults did not happen and the minor was not credible.


Moreover, all of the essential elements were present in the indictment. When the “statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charged drawn in the language of the statute is sufficient.” State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977). And here, the indictment includes all of the elements of the offense. The HSC held that the circuit court erred in granting the motion and dismissing the indictment.


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