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### 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 Electronically Filed Supreme Court SCWC-10-0000123 12-FEB-2014 09:33 AM*** NOT FOR PUB LICAT ION I N WES T’S HAWAI # I REPORTS AND PACIFI C 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 l aw al lows the i ntrod uctio n of evide nce . . . for t he purpo se of show ing t hat t here is mo re th an on e act upon which proo f of an el ement of a n off ense may b e bas ed.
In or der f or th e pro secut ion t o pro ve an elem ent, all 1 2 juror s mus t una nimou sly a gree that the s ame a ct ha s bee n prove n bey ond a reas onabl e dou bt.

. . . . Your verdi ct mu st be unan imous
. 

### 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

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### 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).

HRS § 708- 841 p rovid ed th en as it d oes n ow: 1 (1) Apers on co mmits the offen se of robb ery i n the seco nd degre e if, in t he co urse of co mmitt ing t heft or non-c onsen sual takin g of a mot or ve hicle :

. . . . (b) T he pe rson threa tens the i mmine nt us e of force again st th e per son o f any one w ho is pres ent w ith i ntent to co mpel acqui escen ce to the takin g of or es capin g wit h the p roper ty[.] 

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### “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

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### 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

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### 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

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### 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 for petitioner Darien W.L.C. Nagata for respondent /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack

We ac knowl edge Justi ce Ac oba’s conc urrin g anddiss entin g opi nion, 2 which rais es is sues surro undin g pro bable caus e to suppo rt th e ind ictme nt, proba ble c ause for S alas’ s arr est, suppr essio n of pretr ial i denti ficat ions, and e yewit ness ident ifica tion instr uctio ns. In li ght o f our deci sion to vacat e the conv ictio n andto r emandthe case for n ew tr ial, it is unne cessa ry for t his c ourt to ad dress the merit s of these issu es. Howev er, w e agr ee wi th Justi ce Ac oba’s obse rvati on th at “t he co urt m ust g ive a spec ific eyewi tness ident ifica tion instr uctio n on reman d.” See C oncur ring and D issen ting Opini on at 19 -20. 

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