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declining to impose a unanimity requirement for conspiracy conviction
Summary of this case from United States v. BlackOpinion
No. 698, 2010.
Submitted: March 22, 2011.
Decided: June 9, 2011.
Court Below: Superior Court of the State of Delaware in and for New Castle County, ID No. 0906023978.
Upon appeal from the Superior Court. AFFIRMED.
John S. Malik, Esquire, of Wilmington, Delaware, for Appellant.
Elizabeth R. McFarlan, and Elizabeth A. Powers, Esquires, of the Department of Justice, Wilmington, Delaware, for Appellee.
Before STEELE, Chief Justice, JACOBS, and RIDGELY, Justices.
Title 11, section 512 of the Delaware Code provides that a person is guilty of conspiracy second degree when, intending to promote the commission of a felony, "the person . . . [a]grees to aid another person . . . in the planning or commission of the felony . . . and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy." A jury convicted Defendant-Below/Appellant, Scott Dougherty of that crime after the trial judge instructed the jury on the elements of the crime. By its verdict, the jury found that Dougherty or his co-conspirator committed an overt act in pursuance of the conspiracy. In this case, the overt act charged in the indictment was engaging in conduct constituting burglary second degree, an attempt to commit that crime, or "some other overt act" in pursuance of the conspiracy. The issue is whether the trial judge committed plain error by not, sua sponte, giving a specific unanimity instruction requiring the jury to determine unanimously which particular overt act was committed. We conclude that the trial judge did not commit plain error and, accordingly, affirm the judgment of the Superior Court.
Facts and Procedural History
One morning, nearly two years ago, Barbara Kukulich discovered that her home had been burglarized. She noticed that "[her] jewelry was gone, and there was a couple things on the floor scattered, and [her] change was missing." Kukulich called the police. Shortly thereafter, the police arrived and conducted the initial stage of their investigation.
The investigation further developed when Scott Culin was arrested for an unrelated burglary. Culin gave the police a statement regarding his involvement in the burglary of Kukulich's home, and indicating that Dougherty also was involved in that burglary.
Thereafter, Dougherty was charged by indictment with burglary second degree, felony theft, and conspiracy second degree. The matter proceeded to a jury trial. Several witnesses testified, including Culin, who relevantly testified as follows:
[A]nyway, [Dougherty and I] needed money. And I remember I came up with an idea a while ago, sort of a pipe dream, saying that [Kukulich's] house, [her son] used to be my best friend back in middle school. And it was always just thrown out there, but never taken seriously. And then that day somehow [Dougherty and I] thought it would be a good idea to go in it.
* * *
Then [] we went around [to the] back [of Kukulich's house], and the back laundry room door I believe it was unlocked. . . . And then I remember there's a discussion whether to do it . . . but it was more like we made it this far, go. So it was go.
* * *
. . . [W]e made our way through the kitchen up to the stairs up to the master bedroom.
Culin then described the burglary in detail. Culin also testified that he and Dougherty agreed to employ another man, Jason Czarnota, to sell several of the stolen items. Culin testified that Dougherty drove them to a jewelry store in Pennsylvania and that Czarnota sold the items stolen from Kukulich's home for approximately $550. Culin testified that Dougherty was involved heavily in the negotiations at the jewelry store. Czarnota, who also testified, corroborated Culin's account of Dougherty's post-burglary actions.
After the defense presented its case, Dougherty moved for judgment of acquittal. The trial judge denied that motion. No request was made by defense counsel for a specific unanimity jury instruction. The trial judge then instructed the jury on conspiracy second degree as follows:
[I]n order to find the defendant guilty of Conspiracy in the Second Degree, you must find that each of the following three elements has been established beyond a reasonable doubt:
First, the defendant intended, that is, it was his conscious objective or purpose to facilitate the commission of Burglary Second Degree. Second, the defendant either agreed with Scott D. Culin that they would engage in conduct constituting Burglary Second Degree or agreed to aid Scott D. Culin in planning and committing Burglary Second Degree. And, third, the defendant or another person with whom he conspired committed an overt act in pursuit of this conspiracy. An overt act is any act to pursue or advance the purposes of the conspiracy.
After closing arguments, the trial judge also instructed the jury as follows: "As I mentioned all 12 jurors must agree upon any verdict."
The jury found Dougherty guilty of conspiracy second degree, but not guilty of burglary second degree and theft. Thereafter, Dougherty moved for a new trial or, alternatively, judgment of acquittal. The trial judge denied that motion and explained:
Defendant has failed to meet his burden of proving plain error. He has not shown conclusively that but for the failure of the Court to give a specific unanimity jury instruction, the outcome would have been different. This is not one of the rare and unique circumstances in which the Delaware Supreme Court has decided that the interests of justice require a sua sponte jury instruction.
State v. Dougherty, 2010 WL 4056152, at *3 (Del.Super. Sept. 30, 2010) (citation omitted).
The trial judge sentenced Dougherty to two years at Level V supervision, suspended immediately for one year at Level II supervision. This appeal followed.
Discussion
Dougherty argues that "since the State alleged alternative overt acts underlying the conspiracy second degree charge in the indictment, plain error was committed when the [trial judge] failed to give [ sua sponte] the jury a specific unanimity instruction that required the jury to indicate which of the alternative overt acts they unanimously found had been committed to support [the] conspiracy conviction."
The indictment relevantly provided: "Scott F. Culin and Scott C. Dougherty . . . did commit an overt act in pursuance of said conspiracy by engaging in conduct constituting said felony, an attempt to commit or by committing some other overt act in pursuance of the conspiracy."
Because Dougherty did not request a specific unanimity instruction at his trial, we review Dougherty's claim on appeal for plain error. "Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." "Furthermore, the doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice."
See Supr. Ct. R. 8("Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented."); Super. Ct.Crim. R. 30 ("No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before or at a time set by the court immediately after the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection."); Turner v. State, 5 A.3d 612, 615 (Del. 2010) (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)).
Turner, 5 A.3d at 615 (quoting Wainwright, 504A.2d at 1100).
Id.
A General Unanimity Instruction Typically Suffices
In Probst v. State, this Court explained that a general unanimity instruction typically suffices to insure that the jury is unanimous on the factual basis for a conviction. But, Probst also recognized that the general rule does not apply "where there are factors in a case which create the potential that the jury will be confused." The Court in Probst then explained that a more specific jury instruction — a single theory unanimity instruction — is required if the case presents the following three circumstances: (1) "[the] jury is instructed that the commission of any one of several alternative actions would subject the defendant to criminal liability," (2) "the actions are conceptually different," and (3) "the State has presented evidence on each of the alternatives." The Court in Probst carefully explained that this test has narrow applicability:
[T]his Court does not hold that a specific unanimity instruction is required in every case where a defendant may be convicted as a principal or as an accomplice. In fact, this Court recognizes that even when principal and accomplice liability theories are advanced, a general unanimity instruction is usually sufficient in the absence of a defense request for a specific instruction or in the absence of unusual circumstances creating a potential for confusion, e.g., alternative incidents which subject the defendant to criminal liability.Probst was the exception to the rule that a general unanimity instruction typically suffices. In several cases since Probst, we have held that the trial court did not err in not giving a specific unanimity instruction because we concluded that the underlying actions in those cases were not "conceptually different."
Id. at 122 (citing Shivers v. United States, 533 A.2d 258, 261-63(D.C. 1987)).
See Hoskins v. State, 14 A.3d 554, 562-65 (Del. 2011); Soliman v. State, 918 A.2d 339, 2007 WL 63359 (Del. 2007) (TABLE); Pierce v. State, 911 A.2d 793 (Del. 2006); Ayers v. State, 844 A.2d 304 (Del. 2004); Hendricks v. State, 805 A.2d 902, 2002 WL 2030875 (Del. 2002) (TABLE); Brown v. State, 729 A.2d 259 (Del. 1999); Stevenson v. State, 709 A.2d 619 (Del. 1998); Dixon v. State, 673 A.2d 1220 (Del. 1996); Pope v. State, 632 A.2d 73 (Del. 1993); Liu v. State, 628 A.2d 1376 (Del. 1993); Bryant v. State, 571 A.2d 786, 1990 WL 17775 (Del. 1990) (TABLE); Zimmerman v. State, 565 A.2d 887 (Del. 1989).
Specific Unanimity Instructions As Applied to the Overt Act Requirement
Title 11, section 512 of the Delaware Code provides:
A person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, the person:
(1) Agrees with another person or persons that they or 1 or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or
(2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony; and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy.
Conspiracy in the second degree is a class G felony.
The crime of conspiracy is different from many other crimes because in the context of a Probst analysis, a jury often may have several "conceptually different" overt acts from which to choose, and indeed, different co-conspirators may commit those "conceptually different" overt acts.
See 11 Del. C. § 512; Holland v. State, 744 A.2d 980, 982 (Del. 2000) ("Under Delaware law, it is not necessary for a defendant to commit the overt act underlying the conspiracy charge. It is sufficient that a co-conspirator commit the overt act.") (citations omitted); Stewart v. State, 437 A.2d 153, 156 (Del. 1981) ("The overt act need not have been committed by the defendant; it is sufficient that . . . the overt act, be committed by someone else, i.e., a co-conspirator.").
In light of the unusual circumstances that the crime of conspiracy presents to a jury, some courts prefer to instruct the jury to agree unanimously upon the particular overt act that supports the conspiracy conviction. But, state courts throughout the country are divided on this issue. In the federal system, the model jury instructions of the various Circuits of the United States Courts of Appeals also illustrate this disagreement. For example, the Third Circuit Model Criminal Jury Instructions relevantly provide: "You must unanimously agree on the overt act that was committed." Similarly, the Ninth Circuit Model Criminal Jury Instructions relevantly provide: "[O]ne of the members of the conspiracy performed at least one overt act . . . for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed." Two other Circuits provide in their model instructions that the jury should be instructed to agree unanimously on the particular overt act. The Sixth Circuit's Pattern Criminal Jury Instructions relevantly provide: "It is unclear whether an augmented unanimity instruction specifically requiring unanimous agreement on the same overt act is necessary." The remaining Circuits do not address the issue in their model criminal jury instructions.
Compare, e.g., Judicial Council of California Criminal Jury Instructions § 415 (2011) ("You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts."), with, e.g., Hawaii Pattern Jury Instructions — Criminal § 14.07 (2009) ("In order to find the Defendant guilty, you must unanimously agree as to the particular overt act committed.").
The federal model criminal jury instructions were prepared for the federal conspiracy statute — title 18, section 371 of the United States Code — which the federal courts have interpreted to require an overt act in furtherance of the conspiracy. See, e.g., United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996) ("Conspiracy requires proof of: (1) an agreement among the conspirators to commit an offense; (2) specific intent to achieve the objective of the conspiracy; and (3) usually, an overt act to effect the object of the conspiracy.") (citing United States v. Montour, 944 F.2d 1019, 1024 (2d Cir. 1991)). For purposes of this analysis, the contours of the federal statute are substantially similar to title 11, section 512 of the Delaware Code.
Third Circuit Model Criminal Jury Instructions § 6.18.371F(2009).
Ninth Circuit Model Criminal Jury Instructions § 8.20 (2010).
See Manual of Model Criminal Jury Instructions for the District Courts of the Eight Circuit § 5.06D (2009) ("It is sufficient if the Government proves beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done."); Tenth Circuit Criminal Pattern Jury Instructions § 2.19 Use Note (2005) ("The verdict form should include a finding as to the overt act.")
Sixth Circuit Pattern Criminal Jury Instructions § 3.04 (2009).
See Pattern Criminal Jury Instructions for the District Court of the First Circuit § 4.18.371(1) (2010); Fifth Circuit Criminal Jury Instructions § 2.20 (2001); Pattern Criminal Federal Jury Instructions for the Seventh Circuit § 5.08 (1998); Eleventh Circuit Pattern Jury Instructions § 13.1 (2010). See also Federal Judicial Center Pattern Criminal Jury Instructions § 62 (1987).
In United States v. Chen Chiang Liu, the Ninth Circuit, despite its model instructions, explained: "It is not clear that a district court must instruct a jury that it must make a unanimous finding of which overt act was committed in furtherance of the conspiracy." The court in Chen speculated that the United States Constitution might not require the instruction, citing to Schad v. Arizona for the following proposition:
631 F.3d 993 (9th Cir. 2011).
Id. at 1000 n. 7.
Id. See also Hoover v. Johnson, 193 F.3d 366, 369-70 (5th Cir. 1999) (explaining that the United States Supreme Court has not "explicated a constitutional requirement that state court juries must agree to a single act that satisfies the overt act element of the relevant crime").
501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991).
A way of framing the issue is suggested by analogy. Our cases reflect a longestablished rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. . . .
We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.
Id. at 631, 111 S.Ct. 2491. See also Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) ("[A] federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.") (citation omitted). See generally Tim A. Thomas, Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 A.L.R.4th 91 (1989).