*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-10-0000123 12-FEB-2014 09:33 AM
SCWC-10-0000123
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
KAWA SALAS, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-10-0000123; CR. NO. 08-1-0443)
MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, McKenna and Pollack, JJ. with Acoba, J., concurring and dissenting separately)
Petitioner/Defendant-Appellant Kawa Salas (Salas)
appeals from the July 3, 2013 Judgment on Appeal of the
Intermediate Court of Appeals (ICA) affirming the Circuit Court
of the Third Circuit’s (circuit court) judgment of conviction and
sentence for robbery in the second degree. Pursuant to our prior
decisions in State v. Cordeiro, 99 Hawai#i 390, 56 P.3d 692
(2002), and State v. Getz, No. SCWC-12-0000009, __ Hawai#i __,
313 P.3d 708 (2013), we hold that the circuit court plainly erred *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
when it failed to give the jury a specific unanimity instruction.
Because that error was not harmless beyond a reasonable doubt, we
vacate the circuit court and ICA judgments and remand the case
for a new trial.
I.
During a jury trial for first degree robbery, the State
adduced evidence that Salas and two other men allegedly accosted
a group of four complaining witnesses (CWs) at a scenic campsite.
The State alleged that Salas stood in front of the CWs’ tents and
shadowboxed in a threatening manner while his co-defendant
demanded money and drugs. The State also alleged that Salas
verbally threatened the CWs. In sum, the State’s theory of the
case was that Salas had accosted all four of the CWs.
At the close of trial, the jury was given the following
unanimity instruction: The law allows the introduction of evidence . . . for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based.
In order for the prosecution to prove an element, all 12 jurors must unanimously agree that the same act has been proven beyond a reasonable doubt.
. . . .
Your verdict must be unanimous.
This instruction advised the jury that it was required to
unanimously agree upon the specific act that the defendant
committed that constituted the offense charged, or an element
2 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
thereof. However, the circuit court did not instruct the jury
that it was required to unanimously agree upon the identity of
the target of Salas’s conduct, and neither side requested such an
instruction. After deliberation, the jury found Salas guilty of
robbery in the second degree pursuant to HRS § 708-841.1
Salas appealed to the ICA and his conviction was
affirmed. However, his attorney failed to raise the lack of a
specific unanimity instruction before the ICA, and again failed
to raise the issue in Salas’s application for writ of certiorari.
Nonetheless, a defendant’s right to a unanimous jury verdict is
constitutionally guaranteed, and thus, the failure to give a
specific unanimity instruction when one is warranted may be
reviewed for plain error.
II.
“Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of
the court.” Hawai#i Rules of Penal Procedure Rule 52(b)(2008).
1 HRS § 708-841 provided then as it does now:
(1) A person commits the offense of robbery in the second degree if, in the course of committing theft or non-consensual taking of a motor vehicle:
(b) The person threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property[.]
3 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
“This court will apply the plain error standard of review to
correct errors that 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.” State
v. Taylor, SCWC-30161, 2013 WL 3967699, at *9 (Haw. Aug. 19,
2013) (internal citations omitted). Plain error may be corrected
on appeal unless the record affirmatively reveals that the error
was harmless beyond a reasonable doubt. See State v. Miller, 122
Hawai#i 92, 100, 223 P.3d 157, 165 (2010).
III.
A defendant’s right to a unanimous jury verdict in a
criminal prosecution is guaranteed by article 1, sections 5 and
14 of the Hawai#i constitution. See State v. Arceo, 84 Hawai#i 1,
30, 928 P.2d 843, 872 (1996). For a verdict to be unanimous,
“[t]he jury must unanimously find that each material element of
the offense has been proven -- the conduct, the attendant
circumstances, and the result of the conduct -- as well as the
mental state requisite to each element.” State v. Jones, 96
Hawai#i 161, 169, 29 P.3d 351, 359 (2001). In 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). Specifically, a unanimity instruction
must be given if “(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 only one offense was
committed.” Id. Thus, when a defendant is charged with a single
offense of robbery and the prosecution adduces evidence that the
defendant used or threatened to use force against more than one
individual, the circuit court is required to instruct the jury
that it must agree unanimously as to the person against whom the
defendant used or threatened to use force. See Cordeiro, 99
Hawai#i at 407-08, 56 P.3d at 709-10.
For example, in Cordeiro, the prosecution introduced
evidence that the defendant shot one man, and then pulled his gun
on a second man while ordering him to dispose of the first man’s
body. 99 Hawai#i at 400, 56 P.3d at 702. At trial, the
prosecution argued to the jury that either of the defendant’s
acts could support a first degree robbery conviction. Id. at
407, 56 P.3d at 709. After closing arguments, the circuit court
instructed the jury that its verdict must be unanimous, but did
not instruct the jury that it must unanimously agree on the
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*** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-10-0000123 12-FEB-2014 09:33 AM
SCWC-10-0000123
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
KAWA SALAS, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-10-0000123; CR. NO. 08-1-0443)
MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, McKenna and Pollack, JJ. with Acoba, J., concurring and dissenting separately)
Petitioner/Defendant-Appellant Kawa Salas (Salas)
appeals from the July 3, 2013 Judgment on Appeal of the
Intermediate Court of Appeals (ICA) affirming the Circuit Court
of the Third Circuit’s (circuit court) judgment of conviction and
sentence for robbery in the second degree. Pursuant to our prior
decisions in State v. Cordeiro, 99 Hawai#i 390, 56 P.3d 692
(2002), and State v. Getz, No. SCWC-12-0000009, __ Hawai#i __,
313 P.3d 708 (2013), we hold that the circuit court plainly erred *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
when it failed to give the jury a specific unanimity instruction.
Because that error was not harmless beyond a reasonable doubt, we
vacate the circuit court and ICA judgments and remand the case
for a new trial.
I.
During a jury trial for first degree robbery, the State
adduced evidence that Salas and two other men allegedly accosted
a group of four complaining witnesses (CWs) at a scenic campsite.
The State alleged that Salas stood in front of the CWs’ tents and
shadowboxed in a threatening manner while his co-defendant
demanded money and drugs. The State also alleged that Salas
verbally threatened the CWs. In sum, the State’s theory of the
case was that Salas had accosted all four of the CWs.
At the close of trial, the jury was given the following
unanimity instruction: The law allows the introduction of evidence . . . for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based.
In order for the prosecution to prove an element, all 12 jurors must unanimously agree that the same act has been proven beyond a reasonable doubt.
. . . .
Your verdict must be unanimous.
This instruction advised the jury that it was required to
unanimously agree upon the specific act that the defendant
committed that constituted the offense charged, or an element
2 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
thereof. However, the circuit court did not instruct the jury
that it was required to unanimously agree upon the identity of
the target of Salas’s conduct, and neither side requested such an
instruction. After deliberation, the jury found Salas guilty of
robbery in the second degree pursuant to HRS § 708-841.1
Salas appealed to the ICA and his conviction was
affirmed. However, his attorney failed to raise the lack of a
specific unanimity instruction before the ICA, and again failed
to raise the issue in Salas’s application for writ of certiorari.
Nonetheless, a defendant’s right to a unanimous jury verdict is
constitutionally guaranteed, and thus, the failure to give a
specific unanimity instruction when one is warranted may be
reviewed for plain error.
II.
“Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of
the court.” Hawai#i Rules of Penal Procedure Rule 52(b)(2008).
1 HRS § 708-841 provided then as it does now:
(1) A person commits the offense of robbery in the second degree if, in the course of committing theft or non-consensual taking of a motor vehicle:
(b) The person threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property[.]
3 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
“This court will apply the plain error standard of review to
correct errors that 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.” State
v. Taylor, SCWC-30161, 2013 WL 3967699, at *9 (Haw. Aug. 19,
2013) (internal citations omitted). Plain error may be corrected
on appeal unless the record affirmatively reveals that the error
was harmless beyond a reasonable doubt. See State v. Miller, 122
Hawai#i 92, 100, 223 P.3d 157, 165 (2010).
III.
A defendant’s right to a unanimous jury verdict in a
criminal prosecution is guaranteed by article 1, sections 5 and
14 of the Hawai#i constitution. See State v. Arceo, 84 Hawai#i 1,
30, 928 P.2d 843, 872 (1996). For a verdict to be unanimous,
“[t]he jury must unanimously find that each material element of
the offense has been proven -- the conduct, the attendant
circumstances, and the result of the conduct -- as well as the
mental state requisite to each element.” State v. Jones, 96
Hawai#i 161, 169, 29 P.3d 351, 359 (2001). In 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). Specifically, a unanimity instruction
must be given if “(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 only one offense was
committed.” Id. Thus, when a defendant is charged with a single
offense of robbery and the prosecution adduces evidence that the
defendant used or threatened to use force against more than one
individual, the circuit court is required to instruct the jury
that it must agree unanimously as to the person against whom the
defendant used or threatened to use force. See Cordeiro, 99
Hawai#i at 407-08, 56 P.3d at 709-10.
For example, in Cordeiro, the prosecution introduced
evidence that the defendant shot one man, and then pulled his gun
on a second man while ordering him to dispose of the first man’s
body. 99 Hawai#i at 400, 56 P.3d at 702. At trial, the
prosecution argued to the jury that either of the defendant’s
acts could support a first degree robbery conviction. Id. at
407, 56 P.3d at 709. After closing arguments, the circuit court
instructed the jury that its verdict must be unanimous, but did
not instruct the jury that it must unanimously agree on the
identity of the person against whom the defendant used force.
Id. On these facts, we held that the circuit court plainly erred
5 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
in failing to give the jury a specific unanimity instruction.
Id. at 408, 56 P.3d at 710. Because we could not say that the
error was harmless beyond a reasonable doubt, we vacated
Cordeiro’s robbery conviction. Id.
Likewise, in Getz, the prosecution adduced evidence
that the defendant used force against two security guards in an
attempt to steal a handbag. __ Hawai#i at __, 313 P.3d at 710-
11. The State argued to the jury that it could find the
defendant guilty of robbery if they unanimously agreed that the
defendant had used force against either the first security guard
or the second one. Id. at __, 313 P.3d at 712. However, the
jury was not instructed that it must unanimously agree upon the
identity of the person against whom the defendant used force.
Id. We held that the failure to give a specific unanimity
instruction prejudiced the defendant’s substantial constitutional
right to a unanimous jury verdict, and that the error was not
harmless beyond a reasonable doubt. Id. at __, 313 P.3d at 716.
Accordingly, we applied the plain error doctrine, vacated the
defendant’s conviction, and remanded for a new trial. Id.
Here, the State charged Salas with one count of
robbery. At trial, the State adduced evidence that Salas
threatened to use force against a group of four individuals who
were sharing a campsite. Based on these facts, the circuit court
6 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
was required to instruct the jury that it must unanimously agree
upon the identity of the person against whom Salas threatened to
use force. The circuit court’s failure to do so prejudiced
Salas’s substantial constitutional right to a unanimous jury
verdict, and thus, constitutes plain error. Because there is a
reasonable possibility that this error might have contributed to
Salas’s conviction, we cannot say that it was harmless beyond a
reasonable doubt.
IV.
For the reasons set forth above, we vacate the ICA’s
judgment on appeal and the circuit court’s judgment and
conviction. This case is hereby remanded to the circuit court
for further proceedings consistent with this opinion.2
DATED: Honolulu, Hawai#i, February 12, 2014.
Joy A. San Buenaventura /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Darien W.L.C. Nagata for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
2 We acknowledge Justice Acoba’s concurring and dissenting opinion, which raises issues surrounding probable cause to support the indictment, probable cause for Salas’s arrest, suppression of pretrial identifications, and eyewitness identification instructions. In light of our decision to vacate the conviction and to remand the case for new trial, it is unnecessary for this court to address the merits of these issues. However, we agree with Justice Acoba’s observation that “the court must give a specific eyewitness identification instruction on remand.” See Concurring and Dissenting Opinion at 19-20.