unanimity instruction in Hawaii

2021The Arceo requirement of a unanimity instruction applies when "separate and distinct culpable acts" are subsumed within a single charge, "any one of which could support a conviction thereunder." State v. Mundon, 121 Hawai#i 339, 350, 219 P.3d 1126, 1137 (2009) (quoting Arceo, 84 Hawai#i at 32-33, 928 P.2d at 874-75 ). "[T]wo conditions must converge before an Arceo unanimity instruction, absent an election by the prosecution, is necessary: (1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that onl

2021The Arceo requirement of a unanimity instruction applies when "separate and distinct culpable acts" are subsumed within a single charge, "any one of which could support a conviction thereunder." State v. Mundon, 121 Hawai#i 339, 350, 219 P.3d 1126, 1137 (2009) (quoting Arceo, 84 Hawai#i at 32-33, 928 P.2d at 874-75 ). "[T]wo conditions must converge before an Arceo unanimity instruction, absent an election by the prosecution, is necessary: (1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that onl

2025Inasmuch as these independent instances of culpable conduct were submitted to the jury in a single count that charged but one offense, we held that a specific unanimity instruction was necessary to ensure that each juror convicted the defendant on the basis of the same incident of culpable conduct. 93 Hawaiʻi 199, 208, 998 P.2d 479, 488 (2000).

2014In some circumstances, a specific unanimity instruction is required “to eliminate any ambiguity that might infect the jury’s deliberations respecting the particular conduct in which the defendant is accused of engaging and that allegedly constitutes 4 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** the charged offense.” State v. Valentine, 93 Hawai#i 199, 208, 998 P.2d 479, 488 (2000).

2021The Arceo requirement of a unanimity instruction applies when "separate and distinct culpable acts" are subsumed within a single charge, "any one of which could support a conviction thereunder." State v. Mundon, 121 Hawai#i 339, 350, 219 P.3d 1126, 1137 (2009) (quoting Arceo, 84 Hawai#i at 32-33, 928 P.2d at 874-75 ). "[T]wo conditions must converge before an Arceo unanimity instruction, absent an election by the prosecution, is necessary: (1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that onl

2013See Cordeiro, 99 Hawai'i at 408 , 56 P.3d at 710 (“Because the circuit court’s insufficient jury instructions prejudiced Cordeiro’s substantial constitutional right to a unanimous jury verdict, the error was ‘plain’.”); State v. Kassebeer, 118 Hawai'i 493, 511 , 193 P.3d 409, 427 (2008) (“Under Arceo and its progeny, it was plain error for the circuit court not to issue a specific unanimity instruction to the jury”).

2013To correct any potential confusion in such a case, the trial judge must augment the general instruction [with a specific unanimity instruction] to ensure [that] the jury understands its duty to unanimous agree to a particular set of facts." (Quoting 84 Hawai'i at 32 , 928 P.2d at 874 (citing United States v. Echeverry, 719 F.2d 974, 975 (9th Cir.1983)).) 14 .

2012For example, Echeverry, 719 F.2d at 974-75 , held that where “ ‘there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice ” and “[t]o correct any potential confusion in such a ease, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts [.] ” (Emphases added.) The Mundon court concluded that there was a possibility of jury confusion since the jury

2021The Arceo requirement of a unanimity instruction applies when "separate and distinct culpable acts" are subsumed within a single charge, "any one of which could support a conviction thereunder." State v. Mundon, 121 Hawai#i 339, 350, 219 P.3d 1126, 1137 (2009) (quoting Arceo, 84 Hawai#i at 32-33, 928 P.2d at 874-75 ). "[T]wo conditions must converge before an Arceo unanimity instruction, absent an election by the prosecution, is necessary: (1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that onl

2012We hold that, under State v. Mundon, 121 Hawai'i 339, 355 , 219 P.3d 1126, 1142 (2009), the family court was required to give a specific unanimity instruction in the circumstances of the instant ease.

2019See, e.g. , State v. Rapoza , 95 Hawai'i 321 , 22 P.3d 968 (2001) (concluding that a specific unanimity instruction was 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' "). 11 It is not entirely clear to which specific instruction the ICA refers.

2019See, e.g. , State v. Rapoza , 95 Hawai'i 321 , 22 P.3d 968 (2001) (concluding that a specific unanimity instruction was 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' "). 11 It is not entirely clear to which specific instruction the ICA refers.

2013"This court 'will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.’ ” Id. (quoting State v. Nichols, 111 Hawai'i 327, 334 , 141 P.3d 974, 981 (2006)). 15 .However, "a specific unanimity instruction is not required if (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant’s action

2013"This court 'will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.’ ” Id. (quoting State v. Nichols, 111 Hawai'i 327, 334 , 141 P.3d 974, 981 (2006)). 15 .However, "a specific unanimity instruction is not required if (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant’s action

2025Just because a unanimity instruction was not required does not mean it was error to give one. "[T]he real question becomes whether there is a reasonable possibility that error might have contributed to conviction." State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006).

2013"This court 'will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.’ ” Id. (quoting State v. Nichols, 111 Hawai'i 327, 334 , 141 P.3d 974, 981 (2006)). 15 .However, "a specific unanimity instruction is not required if (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant’s action

2021See State v. Hironaka, 99 Hawaiʻi 198, 207-08, 53 P.3d 806, 815-16 (2002) (an unanimity instruction is required, absent an election by the prosecution, when at trial, the prosecution adduces proof of two or more separate and distinct culpable acts and the prosecution seeks to submit to the jury that only one offense was committed). 5 A screenshot of the text messages was received into evidence. 9 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** station, where she had three photographs of her face taken.6 She then went to the family court to obtain a temporary restraining

2008However, a specific unanimity instruction is not required if 1) the offense can be proven as a continuous offense and 2) "the prosecution alleges, adduces evidence of, and argues that the defendant's actions constituted a continuous course of conduct." State v. Apao, 95 Hawai`i 440, 447, 24 P. 3d 32, 39 (2001); State v. Hironaka, 99 Hawai`i 198, 207-09, 53 P.3d 806, 815-17 (2002).

2015Feb. 12, 2014) (mem.) (invoking plain error and vacating conviction and remanding for further proceedings where defense counsel failed to raise a lack of a specific unanimity instruction on appeal); see also State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915 (1999) (addressing the violation of the defendant’s right to testify as plain error although not raised by defense counsel on appeal); In Interest of Doe, 77 Hawai#i 46, 50, 881 P.2d 533, 537 (1994) (“Although Doe has not raised the family court’s failure to explain the nature of assault as error with regard to her waiver of counsel,

2010See State v. Staley, 91 Hawai'i 275, 287 , 982 P.2d 904, 916 (1999) (holding that the circuit court's failure to establish on the record that defendant’s decision not to testify was made knowingly and voluntarily constituted plain error); State v. Mahoe, 89 Hawai'i 284, 285 , 972 P.2d 287, 288 (1998) (noticing plain error where the trial court failed to give a unanimity instruction, inasmuch as defendant's constitutional rights to due process and unanimous juiy verdict were violated); State v. Richie, 88 Hawai'i 19, 33-36 , 960 P.2d 1227, 1241-43 (1998) (holding that the trial court plainly er

2010The criteria used to determine that only a single charge should be brought!] may indicate that the election of one particular act for conviction is impractical." 84 Hawai'i at 31 , 928 P.2d at 873 (quoting State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 178 (1984), overruled on other grounds by State v. Kitchen, 110 Wash.2d 403 , 756 P.2d 105, 107 (1988)).

2010The criteria used to determine that only a single charge should be brought!] may indicate that the election of one particular act for conviction is impractical." 84 Hawai'i at 31 , 928 P.2d at 873 (quoting State v. Petrich, 101 Wash.2d 566 , 683 P.2d 173, 178 (1984), overruled on other grounds by State v. Kitchen, 110 Wash.2d 403 , 756 P.2d 105, 107 (1988)).

2021Relying on State v. Auld, 114 Hawai#i 135, 157 P.3d 574 (App. 2007), Abellira contends that "the circuit court reversibly erred in failing to instruct the jury with a specific unanimity instruction regarding the person(s) threatened, and as a result there was a genuine possibility that the jurors were not unanimous as to the person(s) threatened." Abellira acknowledges: The trial court instructed the jury with a general unanimity instruction . . . [which] instruct[ed] the jury "that they must be unanimous as to the verdict." Auld, 114 Hawai#i at 139, 157 P.3d 578 .

2009In State v. Auld, 114 Hawai'i 135, 142 , 157 P.3d 574, 581 (App. 2007), this court held that a unanimity requirement "applies as much (a) to the person(s) threatened as it does (b) to the threatening conduct." In vacating the defendant's conviction, this court reasoned that the jury instruction at issue in Auld states that one of the elements of Count One is that Auld terroristically threatened Salina, Kiana "and/or" Liane, thus permitting the jury to decide that Auld terroristically threatened Salina, Kiana, or Liane.

2024(Emphasis added.) A unanimity instruction is given "to eliminate any ambiguity that might infect the jury's deliberations respecting the particular conduct in which the defendant is accused of engaging and that allegedly constitutes the charged offense." Getz, 131 Hawai#i at 25, 313 P.3d at 714 (citation omitted).

2015State v. Getz, 131 Hawai#i 19, 27, 313 P.3d 708, 716 (2013) (vacating and remanding for a new trial based on the circuit court’s failure to give a specific unanimity decision although the defendant did not raise the lack of a specific unanimity instruction as a point of error on appeal); State v. Salas, SCWC-10-123 (Haw.

2012A. It is established that the guarantee against “ ‘[d]ouble jeopardy protects individu- *14 ais against: (1) a second prosecution for the same offense after acquittal; (2) a second pi’osecution for the same offense after conviction; and (3) multiple punishments for the same offense.’ ” State v. Ake, 88 Hawai'i 389, 392 , 967 P.2d 221, 224 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 141 , 938 P.2d 559, 572 (1997)).

2008In any event, the prosecution’s closing argument, without more, cannot take the place of a specific unanimity instruction because, just as arguments of counsel cannot substitute for evidence, State v. Quitog, 85 Ha *510 wai'i 128, 144, 938 P.2d 559, 575 (1997), so too may they not cure defects in jury instructions[.] Arguments by counsel cannot substitute for an instruction by the court.

2010Similarly, “no specific unanimity instruction is necessary where the defendant is charged with a continuing offense, based on facts and circumstances that constitute a continuing course of conduct.” Rabago, 103 Hawai'i at 250 , 81 P.3d at 1165 (internal quotation marks and citations omitted).

2010Similarly, “no specific unanimity instruction is necessary where the defendant is charged with a continuing offense, based on facts and circumstances that constitute a continuing course of conduct.” Rabago, 103 Hawai'i at 250 , 81 P.3d at 1165 (internal quotation marks and citations omitted).

2010A. As to the first question, Petitioner argues that “a unanimity instruction was necessary because [Respondent] adduced evidence of multiple acts and one or more than one combination of those acts could constitute the charged crime.” (Citing State v. Jones, 96 Hawai'i 161, 170 , 29 P.3d 351, 360 (2001).) Petitioner points out that [i]n “multiple act” cases, the defendant’s constitutional right to a unanimous jury verdict guaranteed under [a]rticle I, [sections] 5 and 14 of the Hawaii Constitution require that the jury be unanimous as to which act or incident constituted the erime[:] In a multi

2010A. As to the first question, Petitioner argues that “a unanimity instruction was necessary because [Respondent] adduced evidence of multiple acts and one or more than one combination of those acts could constitute the charged crime.” (Citing State v. Jones, 96 Hawai'i 161, 170 , 29 P.3d 351, 360 (2001).) Petitioner points out that [i]n “multiple act” cases, the defendant’s constitutional right to a unanimous jury verdict guaranteed under [a]rticle I, [sections] 5 and 14 of the Hawaii Constitution require that the jury be unanimous as to which act or incident constituted the erime[:] In a multi

2009We have also stated that “it may be plain error for a trial court to fail to give a [jury] instruction even when neither the prosecution nor the defendant have requested it ... because ... the ultimate responsibility properly to instruct the jury lies with the [trial] court.” State v. Kinnane, 79 Hawai'i 46, 50 , 897 P.2d 973, 977 (1995) (emphasis added); see also Arceo, 84 Hawai'i at 33 , 928 P.2d at 875 (holding that the trial court plainly erred in failing to provide a specific unanimity instruction to the jury).

2009We have also stated that "it may be plain error for a trial court to fail to give a [jury] instruction even when neither the prosecution nor the defendant have requested it ... because ... the ultimate responsibility properly to instruct the jury lies with the [trial] court." State v. Kinnane, 79 Hawai`i 46, 50, 897 P.2d 973, 977 (1995) (emphasis added); see also Arceo , 84 Hawai`i at 33, 928 P.2d at 875 (holding that the trial court plainly erred in failing to provide a specific unanimity instruction to the jury).

2000See, e.g., State v. Maumalanga, 90 Hawai'i 58, 63-64 , 976 P.2d 372, 377-78 (1998) (though the trial court did not give a specific unanimity instruction where two discrete instances of conduct could have supported conviction under a single charge, the prosecution “made an effective election” of one of the instances of conduct when it made no attempt to develop evidence supporting conviction based on the other).

2000See, e.g., State v. Maumalanga, 90 Hawai'i 58, 63-64 , 976 P.2d 372, 377-78 (1998) (though the trial court did not give a specific unanimity instruction where two discrete instances of conduct could have supported conviction under a single charge, the prosecution “made an effective election” of one of the instances of conduct when it made no attempt to develop evidence supporting conviction based on the other).

2024State v. Davis, 133 Hawai#i 102, 118, 324 P.3d 912, 928 (2014).

2015Feb. 12, 2014) (mem.) (invoking plain error and vacating conviction and remanding for further proceedings where defense counsel failed to raise a lack of a specific unanimity instruction on appeal); see also State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915 (1999) (addressing the violation of the defendant’s right to testify as plain error although not raised by defense counsel on appeal); In Interest of Doe, 77 Hawai#i 46, 50, 881 P.2d 533, 537 (1994) (“Although Doe has not raised the family court’s failure to explain the nature of assault as error with regard to her waiver of counsel,

2015Feb. 12, 2014) (mem.) (invoking plain error and vacating conviction and remanding for further proceedings where defense counsel failed to raise a lack of a specific unanimity instruction on appeal); see also State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915 (1999) (addressing the violation of the defendant’s right to testify as plain error although not raised by defense counsel on appeal); In Interest of Doe, 77 Hawai#i 46, 50, 881 P.2d 533, 537 (1994) (“Although Doe has not raised the family court’s failure to explain the nature of assault as error with regard to her waiver of counsel,

2015Feb. 12, 2014) (mem.) (invoking plain error and vacating conviction and remanding for further proceedings where defense counsel failed to raise a lack of a specific unanimity instruction on appeal); see also State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915 (1999) (addressing the violation of the defendant’s right to testify as plain error although not raised by defense counsel on appeal); In Interest of Doe, 77 Hawai#i 46, 50, 881 P.2d 533, 537 (1994) (“Although Doe has not raised the family court’s failure to explain the nature of assault as error with regard to her waiver of counsel,

2015Feb. 12, 2014) (mem.) (invoking plain error and vacating conviction and remanding for further proceedings where defense counsel failed to raise a lack of a specific unanimity instruction on appeal); see also State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915 (1999) (addressing the violation of the defendant’s right to testify as plain error although not raised by defense counsel on appeal); In Interest of Doe, 77 Hawai#i 46, 50, 881 P.2d 533, 537 (1994) (“Although Doe has not raised the family court’s failure to explain the nature of assault as error with regard to her waiver of counsel,

2013In State v. Cordeiro, 99 Hawai'i 390, 407-08 , 56 P.3d 692, 709-10 (2002), the court held that a specific unanimity instruction was required, where the defendant was charged with a single offense of robbery and the prosecution adduced evidence that the defendant used force against two individuals; the decedent and a witness.

2013In State v. Cordeiro, 99 Hawai'i 390, 407-08 , 56 P.3d 692, 709-10 (2002), the court held that a specific unanimity instruction was required, where the defendant was charged with a single offense of robbery and the prosecution adduced evidence that the defendant used force against two individuals; the decedent and a witness.

2012The majority likewise deduces that the court erred in not providing the jury with a specific unanimity instruction and that the verdict on Count 13 "was not unanimous." Majority opinion at ___, ___, 276 P.3d at 604, 607 .

2012The majority's conclusion that the court's error in failing to give a specific unanimity instruction was harmless is entirely inconsistent with its conclusion that Petitioner's conviction as to Count 13 "was not unanimous." Majority opinion at ___, 276 P.3d at 606 .

2012A. It is established that the guarantee against “ ‘[d]ouble jeopardy protects individu- *14 ais against: (1) a second prosecution for the same offense after acquittal; (2) a second pi’osecution for the same offense after conviction; and (3) multiple punishments for the same offense.’ ” State v. Ake, 88 Hawai'i 389, 392 , 967 P.2d 221, 224 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 141 , 938 P.2d 559, 572 (1997)).

2012A. It is established that the guarantee against “ ‘[d]ouble jeopardy protects individu- *14 ais against: (1) a second prosecution for the same offense after acquittal; (2) a second pi’osecution for the same offense after conviction; and (3) multiple punishments for the same offense.’ ” State v. Ake, 88 Hawai'i 389, 392 , 967 P.2d 221, 224 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 141 , 938 P.2d 559, 572 (1997)).

2010See State v. Staley, 91 Hawai'i 275, 287 , 982 P.2d 904, 916 (1999) (holding that the circuit court's failure to establish on the record that defendant’s decision not to testify was made knowingly and voluntarily constituted plain error); State v. Mahoe, 89 Hawai'i 284, 285 , 972 P.2d 287, 288 (1998) (noticing plain error where the trial court failed to give a unanimity instruction, inasmuch as defendant's constitutional rights to due process and unanimous juiy verdict were violated); State v. Richie, 88 Hawai'i 19, 33-36 , 960 P.2d 1227, 1241-43 (1998) (holding that the trial court plainly er