Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials
| Publication year | 2005 |
| Pages | 28-39 |
74 J. Kan. Bar Assn. 5, 28-39 (2005). Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials
74 J. Kan. Bar Assn. 5, 28-39 (2005)
I. Introduction
The Sixth Amendment of the U.S. Constitution(fn1) and Section Five of the Kansas Bill of Rights(fn2) provide the constitutional basis for the right to a jury trial. While everyone generally agrees that criminal defendants have the right to a jury trial, the details of the type of jury trial that is constitutionally and statutorily required are not always clear. This article considers what is known in criminal cases as the multiple acts problem. A multiple act problem arises when the jury hears evidence of more than one criminal act, yet the state has charged the defendant with only one count. If the state fails to elect a particular act upon which it is basing the charge, and the trial court fails to instruct the jury that each juror must agree upon a particular act before reaching a unanimous verdict, the concern arises that the defendant's right to a jury trial with an unanimous verdict has been violated.
The purpose of this article is twofold. First, it is intended to increase awareness of the problem posed by the multiple acts issue. As this article suggests, it is relatively easy for prosecutors to foreclose the multiple acts argument from being raised on appeal by electing in closing arguments for the jury to focus on one factual incident.(fn3) As an alternative to the state's election, it is, likewise, relatively easy for the trial court to prevent the multiple acts error by giving the pattern jury instruction addressing juror unanimity in the multiple acts case.(fn4) Second, this article attempts to address the much more difficult problem of summarizing and critiquing the framework adopted in Kansas for analyzing the multiple acts issue on appeal, with the goal in mind of providing guidance for prosecutors, defense attorneys, and trial judges for determining when it is necessary for the state to elect or the trial judge to instruct.
II. Constitutional and Statutory Requirements of a Unanimous Jury Verdict.
Under the U.S. Constitution's Sixth Amendment, which applies to the states through the 14th Amendment, each defendant in a criminal prosecution has the right to a jury trial.(fn5) The question of jury size and juror unanimity in Kansas is governed by statute. K.S.A. 22-3403(2)(fn6) and K.S.A. 22-3411a(fn7) require 12-member juries in cases of felony trials. The defendant must personally waive the right to a jury of less than 12 members.(fn8) Juror unanimity is guaranteed through K.S.A. 22-3421(fn9) and K.S.A. 22-3423(1)(d).(fn10)
III. Spotting the Substantive Issue: What is and What is not a Multiple act?
A. Kansas appellate courts' definition of multiple acts.
It is helpful to consider what is and what is not a multiple act. The Kansas Supreme Court defined the multiple acts problem as a case:
"where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or acts constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the [s]tate elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved without a reasonable doubt. State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1988) (quoting State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 [1994])."(fn11)
Thus, there are two elements to the multiple acts problem: (1) the presentation of evidence to the jury of separate acts, any one of which could constitute the crime charged; and (2) the failure of the [s]tate to elect an act upon which it is relying, or the failure of the court to instruct all jurors that they must agree that the same underlying criminal act has been proved beyond a reasonable doubt. Clearly, the detection of the first of these elements presents the greatest challenge to attorneys and judges.
Another related, but distinguishable situation is the concept of alternative means. In an alternative means case, the criminal act may be committed in more than one way, i.e., rape may be committed by physical force or by placing the victim in a state of fear.(fn12) In an alternative means case, the jury must be unanimous as to guilt on the crime charged; however, unanimity as to the means by which the crime was committed is not required as long as substantial evidence supports each alternative means.(fn13)
B. The concept of multiplicity as an aid in detecting separate acts.
The flip side of a multiple acts case is a case involving multiplicity, which the Kansas Supreme Court has defined as the "charging of two or more counts in a complaint where only a single wrongful act is involved."(fn14) Multiplicity "creates the potential for multiple punishments for a single offense."(fn15)
"In examining a multiplicity issue, we are mindful that a single offense may not be divided into separate parts and a single wrongful act may not generally furnish the basis for more than one criminal prosecution; offenses do not merge where each offense requires proof of a fact not required in proving the other; and offenses do not rise out of a single wrongful act where they are committed separately and severally at different times and places."(fn16)
Put simply, multiplicity and multiple acts both represent a mismatch between the criminal act and the charge: in the case of multiple acts, there is evidence of too many criminal acts for each charge, whereas in the case of multiplicity, a single criminal act is being spread among too many charges.
The multiplicity issue is relevant because the analysis of both the multiplicity and multiple acts issues requires a determination of whether there are separate acts. Unfortunately, it has not always been clear in Kansas under what circumstances a multiple acts unanimity instruction is needed in the first place. As suggested below, the Kansas appellate courts have adopted a harmless error test that appears to incorporate in part what some jurisdictions have treated as the initial substantive error analysis. The Kansas courts may have been too quick to jump to a harmless error analysis without considering, first, the question of whether a substantive error exists in the first place. This approach has made it difficult to spot and avoid multiple acts issues before they arise on appeal.
State v. Staggs,(fn17) is a helpful starting point for the analysis of the multiple acts issue. Staggs is a good case because it explicitly analyzes whether evidence of separate acts was presented to the jury. A jury convicted Scott Staggs of aggravated battery. The evidence tended to show that Staggs kicked the victim, while his own testimony suggested that he only punched the victim.(fn18) Thus, the case was arguably a multiple acts case, with the multiple acts being some kicks and a punch. The court, however, disagreed with Staggs' argument. The issue, according to the court, was whether Staggs' "conduct is part of one 'act' or represents distinct and separate 'acts' in and of themselves."(fn19) In determining whether there were separate acts, the court in Staggs turned to the multiplicity analysis in State v. Perry.(fn20) The court in Perry offered the following guidance for determining whether there were separate criminal acts:
"(1) A single offense may not be divided into separate parts and, generally, a single wrongful act may not furnish the basis for more than one criminal prosecution; (2) if each offense charged requires proof of a fact not required in proving the other, the offenses do not merge; and (3) where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act. [Citation omitted.]"(fn21)
The court concluded that, based on these principles, the state could not have charged Staggs with two counts of aggravated battery, because to do so, the charges would have been multiplicitous.(fn22) Having established the principles from the multiplicity analysis for determining whether there were separate acts, the court in Staggs concluded that in Staggs' case, the various acts were one short, continuous, single incident:
"[T]he evidence here supports only a brief time frame in which the aggravated battery occurred. Once defendant initiated the altercation, no break in the action of any length occurred, and the confrontation continued until defendant broke the victim's cheekbone. Simply put, the evidence established a continuous incident that simply cannot be factually separated. No 'multiple acts' instruction was necessary."(fn23)
Clearly, there are some cases that may appear to involve multiple acts but in reality are not multiple acts cases based upon a limited time period in question. Further, the continual nature of the criminal actions may indicate that the allegedly separate actions were not motivated by a fresh impulse, thereby suggesting only one act for purposes of forming the basis for a criminal prosecution.(fn24) Viewed this way, a legitimate multiple acts error only arises when the state fails to elect or the trial court fails to instruct when there are truly multiple acts at issue.
IV. Split of Authority in Court of Appeals and its Apparent Resolution in the Supreme Court.
A. Appellate standards of review of jury instruction errors.
Once it is established that the appellate court faces a legitimate multiple acts issue, the question becomes how to evaluate the argument. Fundamentally, the error is an assertion that the trial...
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