Melina v. People , 161 P.3d 635 ( 2007 )

Justice BENDER

delivered the Opinion of the Court.

Introduction

In this appeal we review the unpublished court of appeals decision, People v. Melina, No. 03CA0391, 2005 WL 729537 (Colo.App. Mar.31, 2005), which affirmed Defendant Gregory Melina, Jr.’s conviction for solicitation to commit first degree murder. At trial, the People argued that Melina solicited another person to kill a man whose cooperation with police led to the filing of serious criminal charges against Melina’s brother. The People presented evidence that Melina spoke with several people, known and unknown, regarding the solicitation. Melina argues that his conviction must be reversed because the court did not give the jury an unanimity instruction for the solicitation charge.

Courts should give unanimity instructions where there is evidence of multiple acts, any one of which would constitute the offense charged. These instructions require jurors to agree on the specific act or series of acts on which their verdict is based. Courts need not give an unanimity instruction when a defendant is charged with crimes occurring in a single transaction.

Melina contends that the People presented two independent, discrete, and mutually exclusive theories of solicitation to the jurors: one inyolving Leandro Lopez, and the other involving Robert Padilla. Thus, he claims that his conviction must be reversed because it is impossible to determine whether the jury unanimously convicted him of soliciting Lopez or of soliciting Padilla.

The court of appeals rejected Melina’s argument that the court needed to provide jurors with an unanimity instruction, and agreed with the trial court’s conclusion that the People charged and tried their case against Melina on the theory that he was involved in a single transaction of solicitation. For this reason, the court of appeals held that the prosecution was not required to select a single solicitee. Melina now argues that this conclusion was in error and that the trial court needed to give an unanimity instruction. We disagree.

Our review of the record supports the trial court’s and the court of appeals’ conclusions that the prosecution’s theory and the evidence presented amounted to a single transaction of solicitation by the defendant to kill one victim. Further, we conclude that the People referenced Melina’s conversations with several individuals to corroborate his intent to have someone kill Bueno, not to suggest that Melina had committed several crimes of solicitation. Thus, the trial court was not required to give an unanimity instruction. Hence, we affirm the judgment of the court of appeals.

Facts and Procedural History

A grand jury indicted Melina with first degree murder, conspiracy to commit first degree murder, solicitation to commit first degree murder, and five additional habitual criminal counts. The trial jury found Melina guilty of solicitation but acquitted him of first degree murder and conspiracy. The court then found him to be a habitual criminal and sentenced him to ninety-six years in prison.

All charges arose from the murder of Paul Bueno, a man who had cooperated with law enforcement officials in a case against Meli-na’s brother, Manuel. The People presented evidence at trial that Lopez and Padilla kidnapped Bueno and Padilla killed Bueno. The central question at trial concerned whether Melina was involved in the murder, and if so, what his level of involvement was. Pertinent to our decision here, the People alleged that Melina made several efforts to solicit someone to kill Bueno.¹

The indictment charged Melina with solicitation of several people, “Manuel Daniel Melina, Leandro Salvatore Lopez, Jr. and persons unknown to the District Attorney,” between January 1, 1999 and February 1, 2000.² Before voir dire started, the trial court read the solicitation indictment to the jury panel, inserting Robert Padilla’s name into the indictment.

At trial, the People did not specify a specific individual as the solicitee, but stated the jurors should “convict this Defendant, Daniel Melina ... for soliciting the murder of Paul Bueno.” The People argued that the solicitation occurred “when this man, Daniel Melina, beg[an] actively seeking someone to murder Paul Bueno.” (Emphasis added.) Statements of Melina’s intent to have someone kill Bueno pervaded the trial.

The People in their opening statement told the jury that Melina, in addition to statements made to Lopez and Padilla, made similar statements to others, including witnesses Cruickshank and Mascarenas, that he wanted someone to kill Bueno:

[Daniel Melina] begin[s] telling people, such as Rick Cruickshank [and] Vince Mascarenas, “Bueno is snitching, his days are numbered.” Daniel Melina, the Defendant in this case, tells Rick Cruickshank somebody needs to take Bueno out, whoever takes out Bueno is going to get paid.

Several witnesses testified that Melina told them that Bueno needed to be killed. Lopez testified that Melina said that he told Padilla that “this dude [Paul Bueno] needed to get it.” Investigator Fuller testified that Vince Mascarenas said that Melina told him, “Paul’s days are numbered.” Robert Os-bourne testified that Melina asked him, “You know about Paul Bueno?” and then stated, “[sjomebody should get rid of Paul Bueno.” (Emphasis added.) Cruickshank testified that although Melina never directly tried to get him to kill Bueno, Melina had told him that “whoever did [kill Paul Bueno] would get paid.” (Emphasis added.) The People claimed that Melina’s indirect comments constituted the solicitation to have someone kill Bueno, arguing “there’s no difference between me saying ... [i]f somebody kills ... Paul Bueno, it’s going to be worth a lot of money. That’s the same thing as saying, I want you to kill him and then I’ll pay you.” (Emphasis added.)

In addition to these named individuals, the People argued that the evidence showed that Melina expressed his intention to have Bueno killed to several unknown individuals. In both opening and closing arguments, the People argued that Melina was responsible for getting “the word out on the street” that he and his brother wanted Bueno to be killed. In opening, the People stated:

[T]he Melinas decide they need to get Paul Bueno out of the picture. Manuel Melina begins getting the word out in jail. As his brother, Daniel Melina, gets the word out on the street. They want to let everybody know that Paul Bueno is a snitch and somebody needs to take this guy out.... [Manuel tells Joe Zuniga] “how his brother was going to take care of things.... Daniel Melina is out on the street getting the word out.” ... The Melinas know they need to find somebody to kill Bueno and Daniel Melina is the one outside, he’s the one who has the ability to do it.

(Emphasis added.) During closing the People argued similarly that Melina “begins getting the word out on the streets.”

Ultimately the People focused on Melina’s interaction with Lopez and Padilla, both of whom the evidence indicated were directly involved in the killing of Paul Bueno. The People argued that Melina was guilty of solicitation, conspiracy, and murder: “[Melina] solicited Padilla and Lopez to commit this murder. He conspired with them_He is the one who set this crime in motion, he is the one calling the shots.... He is as guilty of Paul Bueno’s murder as if he pulled the trigger himself.”

The court instructed the jury that to find Melina guilty of criminal solicitation, it had to find that Melina attempted to persuade another person to commit first degree murder with the intent to promote the murder or under circumstances strongly corroborating this intent:

The elements of the crime of Criminal Solicitation are 1. That the Defendant; 2. in the state of Colorado, at or about the date and place charged; 3. commanded, induced, entreated, or otherwise attempted to persuade another person; 4. to commit the crime of first degree murder, whether as a principal or accomplice; 5. with intent to promote or facilitate the commission of the crime of first degree murder; and 6. under circumstances strongly corroborative of that intent.

(Emphasis added.) Melina did not request that the People identify the specific acts or series of acts that they relied upon to prove the crime of solicitation; nor did he request that the court give the jurors an unanimity instruction.

Melina first argued that an unanimity instruction was necessary on the solicitation count in his post-trial motion for a new trial. In opposition, the People argued that they did not need to specify who was solicited. They told the trial court that this was a charging decision and they could have pled the solicitation as separate counts and alleged each as a separate crime, but they chose to charge only one count of solicitation: ³

I don’t believe that this is the type of situation that we needed to specify who was solicited.... I don’t think that we needed to identif[y] each individual that was solicited.... Had we done that, they would have been pled as separate counts and each one alleged to be a separate crime.

The trial court denied Melina’s motion for a new trial based on the failure of the trial court to sua sponte give an unanimity instruction concerning the crime of solicitation, stating, “I assume at least for purposes of this hearing, that the jury found but one solicitation, although, there may be a number of individuals involved, we’re talking about one act or one solicitation.”

Melina appealed this issue to the court of appeals. In its unpublished opinion, that court agreed with the trial court that the “defendant was charged with a single ongoing solicitation involving known and unknown individuals over a period of thirteen months” and concluded that “[bjecause the solicitation at issue here constituted a single transaction, the prosecution was not required to select a single solicitee.” Melina, No. 03CA0391, slip. op. at 8, 2005 WL 729537.

To support this conclusion, the court of appeals noted that the indictment purported to allege a single ongoing solicitation, id., a point that was also conceded by Melina. The court of appeals stated that “because the indictment uses the conjunction ‘and,’ as opposed to the disjunctive ‘or,’ in describing the solicitees, it charges a single ongoing solicitation of a finite group, people of known and unknown identities over a period of time.” Id. at 3. Thus, the court of appeals affirmed Melina’s conviction. Id. at 13.

Melina now argues before us that the trial court erroneously instructed the jury to convict Melina if it found he solicited “another person,” because the prosecution tried the case as two discrete, mutually exclusive, and independent crimes of solicitation: the Lopez theory and the Padilla theory. In granting certiorari and rephrasing the certiorari question, we implicitly accepted the underlying factual premise of Melina’s brief that, as a factual matter, the jury heard two discrete, mutually exclusive, and independent factual theories of solicitation.⁴ The factual premise of the certiorari question — that the jury was presented with evidence of two discrete and independent theories of solicitation — mis-eharaeterizes our view of the record. Thus, with this determination in mind we turn to the issue of whether the trial court erred in failing to instruct the jury on unanimity absent a request by the defendant.

I.

Where there is evidence of multiple acts, any one of which would constitute the offense charged, the People may be compelled to elect the acts or series of acts on which they rely for a conviction. People v. Estorga, 200 Colo. 78, 81, 612 P.2d 520, 523 (1980). Alternatively, the defendant may be entitled to a special jury instruction requiring the jurors to agree unanimously on which act or acts occurred. Thomas v. People, 803 P.2d 144, 153-54 (Colo.1990).

When a defendant is charged with crimes occurring in a single transaction, however, the prosecution does not have to elect among the acts that constitute the crime. People v. Collins, 730 P.2d 293, 301 (Colo.1986); People v. Scialabba, 55 P.3d 207, 211-12 (Colo.App.2002). Additionally, an unanimity instruction need not be given. People v. Jacobs, 91 P.3d 438, 443 (Colo.App.2003). For this reason, we need not determine the unit of prosecution for solicitation if this case involves a single transaction of solicitation because there would have been no instructional error. The central question then for us to consider is whether the facts of this case involve a single transaction of solicitation.

Several communications may constitute a single transaction of solicitation. In Jacobs, the court of appeals held that even though the record contained evidence of at least thirty e-mails between the defendant and the detective in a child solicitation ease, these communications constituted a single transaction — arranging one date. Id. Further, it is not necessary that the act of solicitation be a personal communication to a particular individual. “[A]n information charging one with soliciting from a public platform a number of persons to commit the crimes ... is sufficient.” 2 Wayne R. La-Fave, Substantive Criminal Law § 11.1(e), at 198 (2d ed.2003) (citing State v. Schleifer, 99 Conn. 432, 121 A. 805 (1923)).

Criminal solicitation requires proof beyond the mere verbal act of soliciting another to commit a crime. People v. Aalbu, 696 P.2d 796, 805 (Colo.1985); People v. Hood, 878 P.2d 89, 94 (Colo.App.1994). Section 18-2-301(1), C.R.S. (2006), provides that a person is g-uilty of solicitation if (1) he attempts to persuade another person to commit a felony, (2) with the intent to promote the commission of the crime, and (3) under circumstances strongly corroborative of that intent:

A person is guilty of criminal solicitation if he or she commands, induces, entreats, or otherwise attempts to persuade another person, or offers his or her services or another’s services to a third person, to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime, and under circumstances strongly corroborative of that intent.

To prove solicitation, the prosecution must present evidence of the circumstances surrounding the solicitation “strongly corroborative” of a defendant’s specific intent to promote or facilitate the commission of the crime solicited. Id.; People v. Latsis, 195 Colo. 411, 413-14, 578 P.2d 1055, 1057-58 (1978); Hood, 878 P.2d at 94. This requirement helps alleviate the fear that false charges of solicitation may be brought against a defendant either out of misunderstanding or for purposes of harassment. La-Fave, supra, § 11.1(b), at 193 (noting that such a risk is greater with solicitation than with other inchoate crimes because solicitation may be committed merely by speaking).

Corroborative circumstances of a defendant’s intent to facilitate the commission of a crime may span a long period of time. Aalbu, 696 P.2d at 805; Hood, 878 P.2d at 94. These circumstances include not only the circumstances surrounding a defendant’s conversations, but also evidence of a defendant’s discussions with other people regarding the commission of a crime. See Hood, 878 P.2d at 94.

It follows that evidence of several communications may be used to corroborate a defendant’s intent to facilitate the commission of a crime. Hence, conversations with multiple people regarding a solicitation may constitute a single transaction of solicitation when the prosecution presents those conversations as corroborating evidence of a defendant’s intent to persuade someone to commit a felony.

II.

Melina argues that the court’s instruction that the jurors convict Melina if they found he solicited “another person” resulted in instructional error because the prosecution tried the case as two discrete, mutually exclusive, and independent crimes of solicitation: the Lopez theory and the Padilla theory. Melina claims that the submission of these two crimes of solicitation to the jury as one crime of solicitation created a jury unanimity problem in this case. Our record review does not support this argument.

Melina correctly notes that the evidence in this case was that Lopez and Padilla Were directly involved in the killing of Bueno, with the issue being whether Melina was involved in Bueno’s murder. As such, the prosecution focused its arguments on Melina’s interactions with Padilla, the person whom Melina allegedly decided would be the “right person” to kill Bueno. However, the fact that the People focused on Lopez and Padilla does not mean they were limiting the evidence of the solicitation charge to these two people. Instead, the record reveals the People focused on Lopez and Padilla to support the other charges they were prosecuting — conspiracy and first degree murder.

Melina highlights isolated statements to claim that the People proceeded under two theories, the Lopez theory and the Padilla theory. However, Melina’s claim of discrete, mutually exclusive, and independent theories of solicitation rings hollow and appears out of context when all of the People’s witnesses and evidentiary arguments are considered. The People’s theory of solicitation and the evidence presented establish that Melina engaged in a single transaction of solicitation to have someone kill Bueno.

The indictment initially charged Melina with a single, ongoing solicitation of several people. The People then named at least four individuals — Lopez, Padilla, Cruickshank, and Mascarenas — with whom Melina spoke regarding his intent to have Bueno killed. The People also argued that Melina contacted unknown individuals, “spreading the word on the street” because he wanted somebody to kill Bueno.

The fact that Melina made numerous statements to several individuals regarding his desire to have Bueno killed does not undermine the trial court’s and court of appeals’ conclusions that these statements, when taken together, constitute a single transaction of solicitation. See Jacobs, 91 P.3d at 443. In the context of this case, the People’s statements identifying the specific individuals with whom Melina spoke regarding his intent to have Bueno killed serve as corroborating evidence of his intent, not evidence of multiple acts of solicitation. See Aalbu, 696 P.2d at 804-05; Hood, 878 P.2d at 94. This conclusion is supported by the fact that the People charged and tried this case as one transaction of solicitation.

Notably, even if Melina’s conversá-tions with various people could be charged as separate crimes of solicitation, these crimes would not be severable in this ease because the People charged and tried the case under the broad theory that Melina engaged in a single transaction of solicitation.⁵ Retrial for specific acts of solicitation in this case would violate the Double Jeopardy Clause. See Colo. Const, art. II, § 18; People v. Berreth, 13 P.3d 1214, 1216 (Colo.2000). The Double Jeopardy Clause’s “same offense” prohibition bars a subsequent prosecution for the same statutory offense if it requires proof of the same facts upon which the first prosecution was based. People v. Williams, 651 P.2d 899, 903 (Colo.1982). Section 18-1-301(1), C.R.S. (2006) codifies the prohibition by barring a second trial for the same offense based on the same facts as an initial prosecution when the former prosecution resulted in circumstances such as an acquittal, termination by a final order or judgment, or resulted in a conviction.⁶

We agree with the trial court and court of appeals that the prosecution did not present two discrete, mutually exclusive, and independent crimes of solicitation but instead that the evidence presented and the People’s theory of the case was that Melina engaged in a single transaction of solicitation for the murder of Paul Bueno. Hence, the trial court did not need to give jurors an unanimity instruction.

Conclusion

Our review of the record supports the trial court’s and court of appeals’ conclusions that the prosecution’s theory and the evidence presented amounted to a single transaction of solicitation by the defendant to kill one victim. We conclude that the People referenced Melina’s conversations with several individuals to corroborate his intent to have someone kill Bueno, not to suggest that Meli-na had committed several crimes of solicitation. Thus, the trial court was not required to give an unanimity instruction. Hence, we affirm the judgment of the court of appeals.

Justice COATS concurs in the judgment only, and Justice RICE joins in the concurrence. Justice EED does not participate.

1 . Because the jury acquitted Melina on the other charges, only those facts and issues related to the solicitation charge are relevant to our review.

2 . The indictment of this charge read:

On or about January 1, 1999 thru February 1, 2000 in Adams County, Colorado, DANIEL GREGORY MELINA, JR., A/K/A VINCENT GARCIA, A/K/A DAN M. MEDINA, A/K/A DANIEL GREGORY MOLINA, A/K/A DAVID MANUEL, A/K/A DANIEL G. MOLINA, A/K/A DAVID GREGORY MOLINA, A/K/A DANNY G, did unlawfully and feloniously command, induce, entreat and otherwise attempt to persuade another person, Manuel Daniel Melina, Leandro Salvatore Lopez, Jr. and persons unknown to the District Attorney, to commit the felony of Murder in the First Degree, as defined by C.R.S. § 18 — 3—102(l)(a), with intent to promote and facilitate the commission of that crime and under circumstances strongly corroborative of that intent.

3 . We do not decide whether the People could have charged separate counts of solicitation for each person with whom Melina was alleged to have spoken.

4 . Melina presented three issues for certiorari:

1. Can a solicitation conviction stand where the prosecution tells the jury that defendant independently solicited two people but the jury instructions make it impossible to determine if the jurors unanimously convicted defendant of soliciting just one (or both) of those people?

2. Does the crime of solicitation exist in Colorado for soliciting an indefinable group of people?

3. Are there separate solicitations or just a single solicitation when a defendant makes sepa-

rate but similar communications to different people?

The Court refrained these three issues as one issue when granting certiorari. We granted cer-tiorari on the issue: "[wjhether the unit of prosecution for the crime of solicitation permits a single conviction based on evidence that the defendant independently solicited two different people for the same crime.” All of these questions imply the factual premise of the Defendant’s brief that as a factual matter the jury heard two discrete, mutually exclusive, and independent factual theories of solicitation.

5 . We do not decide the certiorari issue as to what constitutes the unit of prosecution for solicitation.

6 . C.R.S. section 18-1-301 provides:

Second trial barred by former prosecution for same offense. (1) If a prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: (a) The former prosecution resulted in an acquittal _(b) The former prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense (c) The former prosecution resulted in a conviction....