Brief Bank # B-890 (Re: F 17.01 n15 [Juror Unanimity As To Predicate Acts].)
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JOHN DOE WAS DEPRIVED OF DUE PROCESS UNDER STATE
AND FEDERAL CONSTITUTIONS BY THE LACK OF AN INSTRUCTION
TELLING THE JURY THEIR DECISION HAD TO BE UNANIMOUS AS
TO THE PREDICATE ACTS WHICH, THROUGH THE NATURAL AND
PROBABLE CONSEQUENCES DOCTRINE, MADE HIM RESPONSIBLE
FOR THE DEATH OF MR. G.
It is the purpose of this argument to show that the manner in which the state proceeded against John Doe and his brothers violated the federal constitution by allowing the jury to avoid discussion of the factual details of each predicate act. The lack of a mandate to the jury that they had to agree on the predicate act or acts which allegedly then naturally and reasonably led to the death of Mr. G permitted the jury to avoid discussion of the specific factual details of each violation, covering up disagreement among the jurors about just what John Doe and his brothers did or did not, do. Additionally, failure to require juror unanimity allowed the jurors to avoid focusing on specific factual detail. It allowed them to simply conclude from presence on the scene and prior “bad blood” between the “brothers” and Mr. G that where there is smoke there must be fire. (Richardson v. United States (1999) 526 U.S. 813, 819.)
A. Federal Constitutional Law Requires the Jury Unanimously Agree On The Predicate Acts Which A Defendant Must Be Found To Have Committed Before Liability Attaches For the Acts of Others Under the Natural and Probable Consequences Doctrine.
Discussed below will be the two United States Supreme Court cases of Schad [Footnote 1] and Richardson and the California Supreme Court case of Prettyman.
The issue in Schad , decided in 1991, involved two definitions of first-degree murder under Arizona law. Arizona defined that crime as “murder which is …wilful, deliberate or premeditated…or which is committed…in the perpetration of, or attempt to perpetrate…robbery.” [Footnote 2] The statute defined the mens rea element of first-degree murder as either premeditation or intent to commit robbery. The state proceeded on both theories and the trial court treated the two theories as alternative means to satisfy the mens rea requirement of the murder statute and did not instruct the jury they had to agree unanimously on one theory or the other. Schad challenged his conviction on the ground that the trial court deprived him of his right to a unanimous verdict based on the federal constitution. There was not a majority opinion in the Schad. The constitutional issue of unanimity was addressed by all of the Schad opinions as a constraint all state legislatures faced in defining the elements of a crime. Every Schad opinion, plurality and dissent, agreed with this analysis and that the Sixth Amendment was not operative in this context, it was the Due Process Clause of the Fourteenth Amendment which mandated that in certain situations a jury had to agree unanimously on certain facts. Those were facts which were “material” or “necessary to constitute the crime.” (Schad at 638.) The jury need not agree upon those facts that are mere “alternative means” of fulfilling the necessary elements of the crime. (Schad, 631-632.) The Supreme Court went on to state that distinctions between facts as principal elements of a crime (requiring unanimity) and facts as mere means of fulfilling the elements of a crime, not having that unanimity requirement, “represent value choices more appropriately made in the first instance by a legislature than a court.” (Id.) The Schad Court did not give a legislature a blank check to define criminal conduct in any way it pleased. Due process limits “a [legislature’s] capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant’s conviction without jury agreement as to which course of conduct or state of mind actually occurred. (Id. at 632.) The plurality did not even try to establish a bright line constitutional due process test illustrating when unanimity was required. Instead, they set forth a loosely defined fundamental fairness test which relied on the history or widespread use of the definitions in question and a measure of the equivalency of the alternate means from a standpoint of “blameworthiness.” Only if the alternative means to satisfy an element are equivalent from the standpoint of blameworthiness or culpability does the statutory definition pass constitutional muster. (Id at 643.) Clearly, under this test, the alternative means to satisfy the mens rea element of first degree murder (premeditation or intent to commit a robbery) were well established in history and had equivalent culpability or blameworthiness. Accordingly they satisfied both prongs of the pluralities due process test.
Eight years later, in 1999, the Supreme Court had before it the case of Eddie Richardson who was charged with violating a federal crime statute forbidding any person from engaging in a continuing criminal enterprise (CCE). The CCE was defined as involving a violation of the drug statutes where such violation was part of a continuing series of violations. The question before the Court was whether a jury has to agree unanimously about which specific violations make up the “continuing series of violations.” The Supreme Court answered in the affirmative. The jury had to focus on the specific facts of eachviolation and decide what the defendant did or did not do unanimously to be in conformance with the U.S. Constitution. (Richardson at pp. 819-820.) Richardson was not limited to a federal rule in a federal criminal case. The Supreme Court relied on its analysis in Schad v. Arizona (1991) 501 U.S. 624 to conclude that unanimity was required in Richardson although it was not required in Schad. In Schad, premeditation and intent to commit a robbery were means to decide if the mens rea of first degree murder was satisfied. In Richardson, the Court had to determine if the statute’s phrase “series of violations” refers to one element in which the violations were the underlying means as were premeditation and intent to rob in Schad, “or whether those words create several elements, namely the several “violations” in respect to each of which the jury must agree unanimously and separately.” (Richardson at p. 817-818, emphasis in the original.) “If the statute created a single element, a “series” in respect to which the individual violations are but the means, the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three. On the other hand, if the statute makes each “violation” a separate element, then the jury must agree unanimously about which three crimes the defendant committed.” (Richardson at 818.) The Court then applied the two pronged analysis of Schad; how did history and usage treat the issue and was there equivalency in blameworthiness of the “violations”? Historically, a “violation” was not simply an act or conduct, “it was an act or conduct that is contrary to law. Black’s Law Dictionary 1570 (6th ed. 1990). That circumstance is significant because the criminal law ordinarily entrusts a jury with determining whether alleged conduct “violates” the law..” In that role, a federal criminal jury must act unanimously. (Id.) Turning to the blameworthiness of the violations, the Court first noted the possible violations available to be charged covered “many different kinds of behavior of varying degrees of seriousness”, ranging from removing drug labels to endangering human life while manufacturing drugs in violation of the drug laws. (Richardson at 819.) Secondly, the Court went on to point out that the Government is not limited in the number of violations it can allege.
The first of these considerations increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, or did not , do. The second consideration significantly aggravates the risk, (present at least to a small degree whenever multiple means are at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there must be fire.
The Supreme Court reiterated that the Constitution “itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. (Schad v. Arizona, 501 U.S. at 632-633 (plurality opinion).” The Court had no reason to believe Congress intended to test these limits in enacting the CCE legislation. (Richardson at 820.) The Court concluded the CCE statute required jury unanimity in respect to each individual “violation.” Whether or not to engage in harmless error analysis was left to the lower court on remand. (Id. at 824.)
The dissenters in Richardson focused on the intent of Congress and the legislative history of the CCE legislation. “Nowhere in the text of the statute does Congress show an interest in the particular predicate violations constituting the continuing series. Rather, the CCE offense is aimed at what Congress perceived to be a particular evil: the drug kingpin.” (Id. at 828.) The dissenters had no quarrel with the majority observation “that there is a tradition requiring juror unanimity where the issue is whether a defendant has engaged in conduct which violates the law” but pointed out that this particular statute was aimed at the “ big-time drug dealer” and the majority opinion does not conform to the statutory purpose. (Id. at 828-829.)
The dissent admitted arguendo that a statute having as an element “a series of crimes without a requirement of jury unanimity on any underlying offense…would raise serious questions as to fairness and rationality because the jury’s discretion would be so unconstrained.” The dissenters went on to state that “[t]he CCE statute does not represent an end run around the Constitution’s jury unanimity requirement for Congress had a sound basis for defining the elements as they did: to punish those who act as drug kingpins.” (Id. at p. 836.)
People v. Prettyman (1996) 14 Cal.4th 248, was decided between the issuance of Schad and Richardson. In Prettyman, the Supreme Court of California stated that although the elements of predicate offenses must be given to the jury there need be no unanimous decision by the jury on the particular predicate offense committed by a particular defendant. That statement was dicta as that was not the issue before the Supreme Court. The issue was whether or not the jury need be instructed on the elements of the predicate crime. The passing statement on unanimity relied on a very slender and unstable reed to say the least. The Supreme Court in Prettyman looked to People v. Solis (1993) 20 Cal.App.4th 264 as the authority for a statement the jury need not unanimously agree on the particular target crime the defendant aided and abetted. The Supreme Court in the next breath disapproved of Solis and rightly so because of that court’s statement that a conviction could be based solely on the jury’s belief that the defendant intended to assist and/or encourage unspecified “nefarious” conduct. (Prettyman at p. 268.) It is that desire of the Solis court to punish for amorphous, unspecified conduct which repelled the Supreme Court of California. Unaccountably the court bought into the Solis concept of not requiring a unanimous decision as to the predicate acts of a defendant which yet furthered the concept of jury nonaccountablilty under the theory of where there is “smoke there’s fire” rejected by the U.S. Supreme Court in Richardson discussed above.
The Prettyman decision was rendered in 1996 and in 1999 the Supreme Court in Richardson v. United States , supra, completely disagreed with what was only dicta to begin with in Prettyman re the issue of unanimity as to predicate offenses.
B. Schad and Richardson Applied To the Facts of This Case Mandate Reversal Due to the Failure to Instruct the Jury on Unanimity as to the Predicate Crimes.
Turning to the instant case there were multiple predicate crimes given the jury. Those crimes were assault, battery, assault by means of force likely to produce great bodily injury, assault with a firearm, and brandishing a weapon. (CT 754.) In the jury instruction conference, defense counsel for John Doe unsuccessfully objected to both the simple assault and the brandishing instruction as predicate crimes. [“I don’t believe factually, in this case-the facts in evidence support the target crime of brandishing, resulting in murder, or simple assault resulting in murder. I am not saying it can’t be done legally. I am saying factually, in this case, it’s not applicable.”] (RT 2213); and then objected again. (RT 2235-36.)
The trial judge also gave, at the prosecutor’s request, a jury instruction which told the jury they did not have to agree on the target crimes committed:
In order to convict a defendant of the crimes charged in counts I-III, relying on the doctrine of natural and probable consequences as defined above, “the jury need not unanimously agree on the particular target crime the defendant aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248.)
Despite the objection by John Doe’s attorney to the misdemeanor “brandishing” predicate crime, the prosecutor emphasized that crime to the jury in argument in the following manner:
And, finally, the one in the middle, 417, is the crime of brandishing. Brandishing is demonstrating a firearm to someone, just showing it, demonstrating it to them in a threatening way. Was that crime committed by any of these or was it aided and abetted by any of these? Did Mr. J, John Doe, Mr. S and Mr. C aid and abet in at least one target offense?
The prosecutor, literally in the next breath, pointed out there was no requirement the jurors agree on which predicate offense a defendant committed:
“Now you don’t have to agree on the target offenses; in other words, one of you might think, “ I think they all wanted to commit a battery.” I don’t care what you call this crime, the law doesn’t give us a crime of eight people beating on one, or ten people beating on two. The law doesn’t identify that crime for us, it just tells us: We have a crime called simple battery, we have a crime called aggravated assault, assault by means of force likely to produce great bodily injury. Whatever you call it, it doesn’t matter as long as you believe, individually, that one of them, and that the person we are talking about, we’ll take Mr. J first, committed one of the target offenses or aided and abetted in one of the target offenses. Okay. You don’t have to unanimously agree which one it is.
In rebuttal, the prosecutor emphasized the entire nature of his case and relied on the natural and probable consequence doctrine in no uncertain terms:
“The laws says if it is a natural and probable consequence of the target crime in the case, it would be the battery or the assault, whatever you want to call that group beating, whatever name you want to give that. If it is a natural and probable consequence of that crime, then in this case the victim was murdered, or that the two innocent bystanders were shot, then the people that aided and abetted in that initial crime are guilty of the greater crime. And that’s it. That is the People’s theory on the case and that’s the law of this State.”
What would the Schad and Richardson courts have done with this fact situation? There would certainly be no equivalent “blameworthiness” between the five predicate offenses given this jury. Brandishing a weapon, a misdemeanor, does not begin to be equivalent to the other four predicate offenses. Additionally, there was a violation, an act contrary to law in each of the predicate offenses. On this analysis alone, jury unanimity would be required under the federal constitution for the predicate offenses. Even the dissent in Richardson would have no problem in reversing in the instant case due to lack of jury unanimity as to the predicate offenses. First, this was not a “drug kingpin” prosecution and second, the dissent in Richardson would agree that these five predicate offenses “ a series of crimes without a requirement of jury unanimity on any underlying offense…would raise serious questions as to fairness and rationality because the jury’s discretion would be so unconstrained.” (Richardson at p. 836.) This jury was totally unconstrained. It had carte blanche to pick one out of five violations with no agreement between them as to which violation.
As the Supreme Court stated in Richardson, this failure to require juror unanimity allowed the jurors to avoid focusing on specific factual detail. It allowed them to simply conclude, and not unanimously, that John Doe simply holding a gun or punching Mr. G in that parking lot the night Mr. G died was enough “smoke” that there must be fire. (Id at p. 819.)
C. Because of the Lack of a Unanimity Instruction, the Jury Was Faced with Five Different Predicate Acts Which Each Individual Juror Could Decide Occurred With the Quantum of Evidence Varying Between Predicate Acts. This Denied Appellant John Doe Due Process under the Federal Constitution.
The jury was given five predicate acts pertaining to Count One(CT 754) [Footnote 3] and they were only required to decide individually if one of those acts occurred and then if that act naturally and probably flowed to the killing of Mr. G. That meant that 12 jurors could each choose between five predicate acts to find John Doe guilty. Statistically that meant that 60 combinations of jury decisions resulting in conviction were possible for each defendant between predicate acts which varied in evidentiary support as to each defendant. John Doe was charged with the misdemeanor crime of brandishing a firearm as a predicate crime. The elements of brandishing are that the law is violated when a person draws or exhibits any firearm in a rude, angry, or threatening manner and that person was not acting in lawful self-defense. (RT 760.) The only evidence in this case about a firearm and John Doe is Mr. M’s statement that John Doe had a firearm but did not shoot it. There is no evidence whatsoever that John Doe brandished it in a rude, angry or threatening manner as the law requires. There is no evidence that John Doe committed an assault with a firearm. Yet there were individual jurors who could have come to that conclusion to help make up the twelve that voted for conviction. There was evidence of assault and evidence of battery but where was there evidence of force likely to produce great bodily injury? It wasn’t there. This reviewing court can have no assurance whatsoever that John Doe was convicted for what he did that tragic night because the jury, under these instructions, never had to unanimously agree on what John Doe did. This is exactly why the Supreme reversed in Richardson. The same result should obtain here. Reversal is required on this issue alone.
Footnote 1: Of invaluable help in the Schad discussion was the Yale Law Journal Note, Compound Criminal Statutes and the Constitution: Demanding Unanimity As to Predicate Acts, Vol. 104,Nr. 8, June 1995,p. 2277, Eric S. Miller.
Footnote 2: (Ariz.Rev. Stat.Ann. Sect. 13-452(Supp. 1973.)
Footnote 3: Simple assault;battery;brandishing a firearm; assault by means of force likely to produce great bodily injury; assault with a firearm. (CT 754.)