State v. Bell ( 1996 )

I respectfully dissent because I find duplicity in this case which prejudiced the appellant. In addition, I believe that the duplicity raised a need for additional jury instructions to ensure a unanimous jury verdict against this appellant. Since the jury instructions were not given, the appellant did not have a fair trial.

The indictment in this case charged the appellant with one count of rape, but when the prosecuting attorney presented his case to the jury he produced testimony by which he attempted to prove that appellant had engaged in conduct which would constitute two separate crimes of rape. In so doing, the prosecuting attorney interjected an element of duplicity into this case, and also violated the Rules of Criminal Procedure.

Pursuant to Crim.R. 8(A), joinder of offenses, the prosecuting attorney was obligated to indict the appellant on two counts of rape if he intended to present evidence of two separate acts on the part of the appellant which would constitute the crime of rape. The rule states:

"Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense * * *." (Emphasis added.)

There can be no doubt of the approach used by the prosecuting attorney in this case in view of the following remarks he made to the jury during closing argument:

"Count III is rape and you had testimony of two incidents of that. One came from Cara * * * as to vaginal intercourse between the stanchions in the dairy barn and one as to Megan Issler with the Defendant sticking his penis into the mouth of Cara * * * up in the hay mow."

Duplicity has been defined as the joining in a single count of two or more distinct and separate offenses. See 41 American Jurisprudence 2d (1995) 815, Indictments and Informations, Section 213. In United States v. McGuinness (S.D.N.Y. 1991),764 F. Supp. 888, 892, the court, quoting United States v. Murray (C.A. 2, 1980), 618 F.2d 892, 896, explained the dangers inherent in duplicitous charges:

"``Important policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether the jury found defendant guilty of only one crime and not the other, or guilty of both. * * * Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached [a] unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant's rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in subsequent prosecution.'"

In this case the duplicity is not apparent upon reading the indictment. It is only after an examination of the record that it becomes apparent that two crimes were presented to the jury under Count III of the indictment. I stress that the duplicity found in this case is not the "duplicity" referred to by the majority of charging in one count an offense which may be committed in two or more ways. Rather, duplicity was introduced into this case by the prosecutor during trial, which effectively resulted in the charging of two separate and distinct crimes in one count of the indictment.

The majority relies on the case of Schad v. Arizona (1991),501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555. However, that case involved a count of first degree murder, wherein the prosecution advanced the theory that the murder was either premeditated murder or felony-murder. Thus, the prosecution was urging two different theories, either of which would constitute a commission of the same crime, of one murder only. The ultimate fact in Schad is that the victim was killed. How the killing was accomplished is not so important if the jury unanimously agreed that the victim had been killed, as they must in order to return a unanimous verdict. So long as the penalty remains the same under either theory the method of killing is relatively unimportant.

In this case, on the other hand, it is possible to commit the crime of rape more than once, as distinguished from a killing. This appellant was not charged with one rape which he committed in one of two alternative ways, but with two separate crimes ofrape in the same count of the indictment.

Accordingly, I conclude that the jury charge in this case was deficient due to the introduction of the element of duplicity into the case. In United States v. Duncan (C.A. 6, 1988),850 F.2d 1104, 1110, the court explained, in language clearly applicable to the circumstances in this case, the problem created in a duplicitous case wherein the jury instruction failed to elicit a clearly unanimous verdict:

"The general problem raised by these events is the danger of a ``patchwork' verdict in violation of the Sixth Amendment principle that a jury verdict must be unanimous.

"In United States v. Gipson (5th Cir. 1977), 553 F.2d 453, the Fifth Circuit held that a federal jury must agree on at least one of multiple alternative ``conceptually' distinct acts that would constitute the actus reus of the crime. The Gipson court also laid down a broad dictum that the jury must ``be in substantial agreement as to just what a defendant did.' Id. at 457.

"Thus, in common law terms, the jury must agree that a defendant did an actus reus with a mens rea. The question is, when the State alleges alternative acts or intents, each of which would satisfy the actus reus or mens rea required, must the jury agree on the same actus reus or mens rea? * * * To decide whether these jurors should have been instructed that they must all agree that a particular statement was willfully false, we must examine two issues: (1) Must the jury's verdict actually have been unanimous as to one or the other statement? and (2) If specific unanimity was required, must the jury actually have been told of this requirement? We believe that both of these questions must be answered affirmatively — the first because the two alleged false statements themselves constitute the essential culpable acts proscribed by statute and each false statement was a discrete fact requiring separate proof, and the second because the trial judge was required to disclose this augmented unanimity requirement to the jurors as a matter of law when they sought specific information about their need to agree on one or more of the statements."

In this case the answer to those questions is also clearly, "Yes." If the appellant's right to a unanimous verdict is to be preserved, the trial court had a duty to instruct the jury on its responsibility to reach unanimous agreement on the course of conduct which they used to find the appellant guilty of rape. See McGuinness, 764 F. Supp. at 892 (infringement on defendant's rights due to duplicity could be avoided by tailoring jury instructions and providing special verdict forms). The trial court failed to give the necessary instruction and thereby denied appellant a fair trial.

For these reasons, I believe that the ruling of the trial court dismissing the petition for postconviction relief was prejudicial to the appellant. I would reverse the ruling of the trial court and remand this cause to the trial court with instructions to grant appellant a new trial.