jury a specific unanimity instruction in Hawaii

2019In support of his argument, Phan relies on State v. Arceo , 84 Hawai'i 1 , 32-33, 928 P.2d 843 , 874-75 (1996), where the Hawai'i Supreme Court established that when separate and distinct culpable acts are subsumed within a single count charging a sexual assault-any one of which could support a conviction thereunder-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

2019In support of his argument, Phan relies on State v. Arceo , 84 Hawai'i 1 , 32-33, 928 P.2d 843 , 874-75 (1996), where the Hawai'i Supreme Court established that when separate and distinct culpable acts are subsumed within a single count charging a sexual assault-any one of which could support a conviction thereunder-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

2009Within this context, the Hawai`i Supreme Court, in the seminal decision State v. Arceo, 84 Hawai`i 1, 30, 32-33, 928 P.2d 843, 874-875 (1996), held that: [W]hen separate and distinct culpable acts are subsumed within a single count charging a sexual assault — any one of which could support a conviction thereunder — 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 s

2002Beyond the context of sexual assault charges, this court has held that an Arceo unanimity instruction is required, absent an election by the prosecution, when "at trial, the prosecution adduced proof of two or more separate and distinct culpable acts; and ... the prosecution seeks *816 to submit to the jury that only one offense was committed." State v. Valentine, 93 Hawai`i 199, 208, 998 P.2d 479, 488 (2000) (holding that specific unanimity instruction was not required where the defendant's conduct constituted a "continuous struggle for possession and control of [a police officer's] firearm")

2012See majority opinion at ___, 276 P.3d at 605 .

2012The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. [18] The dissent suggests that this court found a genuine possibility of juror confusion in Mundon solely because "the prosecution did not specify which act coincided with each count and the court did not give the jury a specific unanimity instruction." Dissenting opinion at ___, 276 P.3d at 613 .

2012State v. Kealoha, 95 Hawai'i 365, 378 , 22 P.3d 1012, 1025 (App.2000) (ellipsis in original). 2 I.

2012State v. Kealoha, 95 Hawai'i 365, 378 , 22 P.3d 1012, 1025 (App.2000) (ellipsis in original). 2 I.

2010See also State v. Kassebeer, 118 Hawai'i 493, 511 , 193 P.3d 409, 427 (2008) (remanding for a new trial after the circuit court plainly erred by not sua sponte giving the jury a specific unanimity instruction when the prosecution did not elect the specific act upon which the conviction was based); State v. Auld, 114 Hawai'i 135, 142 , 157 P.3d 574, 581 (App.2007) (remanding for a new trial because the circuit court erred in not giving the jury a specific unanimity instruction as to the victim of the act when there were multiple victims of an act).

2010See also State v. Kassebeer, 118 Hawai'i 493, 511 , 193 P.3d 409, 427 (2008) (remanding for a new trial after the circuit court plainly erred by not sua sponte giving the jury a specific unanimity instruction when the prosecution did not elect the specific act upon which the conviction was based); State v. Auld, 114 Hawai'i 135, 142 , 157 P.3d 574, 581 (App.2007) (remanding for a new trial because the circuit court erred in not giving the jury a specific unanimity instruction as to the victim of the act when there were multiple victims of an act).

2010See also State v. Kassebeer, 118 Hawai'i 493, 511 , 193 P.3d 409, 427 (2008) (remanding for a new trial after the circuit court plainly erred by not sua sponte giving the jury a specific unanimity instruction when the prosecution did not elect the specific act upon which the conviction was based); State v. Auld, 114 Hawai'i 135, 142 , 157 P.3d 574, 581 (App.2007) (remanding for a new trial because the circuit court erred in not giving the jury a specific unanimity instruction as to the victim of the act when there were multiple victims of an act).

2010See also State v. Kassebeer, 118 Hawai'i 493, 511 , 193 P.3d 409, 427 (2008) (remanding for a new trial after the circuit court plainly erred by not sua sponte giving the jury a specific unanimity instruction when the prosecution did not elect the specific act upon which the conviction was based); State v. Auld, 114 Hawai'i 135, 142 , 157 P.3d 574, 581 (App.2007) (remanding for a new trial because the circuit court erred in not giving the jury a specific unanimity instruction as to the victim of the act when there were multiple victims of an act).

2003As such, the majority opinion remands this case and instructs all trial courts (1) in which defendants are charged under HRS § 707-733.5, and (2) where the prosecution adduces evidence of more than three acts of sexual penetration and/or sexual contact, as follows: [A]t or before the close of its case-in-chief, the prosecution ... [must] elect the specific act[s] upon which it is relying to establish the "conduct" element of the charged offense; or ... the trial court [must] give[ ] the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its mem

2001Assuming arguendo that Arceo applies in this case, but see State v. Rapoza, 95 Hawai'i 321, 329-30 , 22 P.3d 968, 976-77 (2001) (“a specific unanimity instruction is not required if the conduct element of an offense is proved by the prosecution to have been a series of acts constituting a continuous course of conduct and the offense is statutorily defined in such a manner as to not preclude it from being a ‘continuous offense’ ”), we observe that, because the State did not elect the specific acts upon which it was relying to establish the conduct elements of counts 1 and 2, the court did give

2001Assuming arguendo that Arceo applies in this case, but see State v. Rapoza, 95 Hawai'i 321, 329-30 , 22 P.3d 968, 976-77 (2001) (“a specific unanimity instruction is not required if the conduct element of an offense is proved by the prosecution to have been a series of acts constituting a continuous course of conduct and the offense is statutorily defined in such a manner as to not preclude it from being a ‘continuous offense’ ”), we observe that, because the State did not elect the specific acts upon which it was relying to establish the conduct elements of counts 1 and 2, the court did give

2000By the same token, and due to the opacity of jury deliberations, Hawai'i Rules of Evidence (HRE) Rule 606(b); 6 State v. Larue, 68 Haw. 576, 578-79 , 722 P.2d 1039, 1042-43 (1986) (because of the HRE Rule 606(b) prohibition against receipt of evidence of jurors’ mental processes during deliberations, the supreme court concluded it was impossible to say beyond a reasonable doubt that a juror’s improper remark was harmless), we must assume a very real and reasonable possibility that this plain error may have contributed to the convictions of the Defendant in this ease, which must therefore be se

1996The Connecticut Supreme Court held that "a unanimity charge on a specific act is required if: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act." Spigarolo, 556 A.2d at 128 (citations omitted). (emphasis in original).

1996The Connecticut Supreme Court held that “a unanimity charge on a specific act is required if: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.” Spigarolo, 556 A.2d at 128 (citations omitted), (emphasis in original).

1996In determining whether a trial court should issue to the jury a specific unanimity instruction, the Spigarolo court adopted a two-prong test—originally set forth by the court in United States v. Gipson, 553 F.2d 453, 458-59 (5th Cir.1977)—and applied it to cases involving sexual assaults committed against minors.

1996In determining whether a trial court should issue to the jury a specific unanimity instruction, the Spigarolo court adopted a two-prong test—originally set forth by the court in United States v. Gipson, 553 F.2d 453, 458-59 (5th Cir.1977)—and applied it to cases involving sexual assaults committed against minors.

1996“We may recognize plain error when the error committed affects substantial rights of the defendant.” Horswill, 75 Haw. at 155 , 857 P.2d at 581 -82 (citing Kelekolio, 74 Haw. at 515 , 849 P.2d at 75 ); see also Kinnane, 79 Hawai'i at 50 , 897 P.2d at 977 (“[I]t may be plain error for a trial court to fail to give an ... instruction even when neither the prosecution nor the defendant have requested it ... because ... the ultimate responsibility properly to instruct the jury lies with the circuit court and not with trial counsel”) (Citation, internal quotation signals, and footnote omitted.) (Em

1996“We may recognize plain error when the error committed affects substantial rights of the defendant.” Horswill, 75 Haw. at 155 , 857 P.2d at 581 -82 (citing Kelekolio, 74 Haw. at 515 , 849 P.2d at 75 ); see also Kinnane, 79 Hawai'i at 50 , 897 P.2d at 977 (“[I]t may be plain error for a trial court to fail to give an ... instruction even when neither the prosecution nor the defendant have requested it ... because ... the ultimate responsibility properly to instruct the jury lies with the circuit court and not with trial counsel”) (Citation, internal quotation signals, and footnote omitted.) (Em