The opinion
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Electronically Filed
Supreme Court
SCWC-30500
20-MAR-2012
08:17 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
ORLANDO PECPEC, Petitioner/Defendant-Appellant.
NO. SCWC-30500
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30500; CR. NO. 09-1-2378)
MARCH 20, 2012
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.;
WITH ACOBA, J., DISSENTING, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
Orlando Pecpec was charged in the Family Court of the
First Circuit with 25 counts of Violation of an Order for
Protection in relation to 25 voicemails and text messages he
allegedly sent to the complaining witness, his former spouse. At
trial, the first 6 counts were supported only by the testimony of
the complaining witness. The jury found Pecpec not guilty on
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these counts. The remaining 19 counts were supported by 19
exhibits containing either audio recordings of the alleged
voicemails or photographs of the alleged text messages. The jury
found Pecpec guilty on each of these 19 counts, and the family
court sentenced Pecpec to a one-year jail term on each count, to
run concurrently, with the exception of Count 13 for which the
sentence was to run consecutive to the remaining counts.1 The
Intermediate Court of Appeals affirmed. State v. Pecpec, No.
30500, 2011 WL 2037679 (Haw. App. May 25, 2011).
Pecpec challenges his convictions on Counts 8-15, which
refer to 8 voicemails on November 6, 2009; Counts 18-22, which
refer to five text messages on November 6, 2009; and Counts 23-
25, which refer to three text messages on November 7, 2009.
Pecpec argues that these convictions were obtained in violation
of his right to a unanimous verdict because the jury was not
specifically instructed that it was required to unanimously agree
to the specific act that supported each count.
Although the jury instructions identified each count by
the date on which the alleged violation occurred and identified
whether the violation was made by way of a voicemail or text
message, they did not identify the time of the violation or the
exhibit to which each count corresponded. Pecpec argues that,
because the jury was not informed which count corresponded with
which specific incident, the family court was required to provide
1
The Honorable Edward H. Kubo, Jr. presided.
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the jurors with a specific unanimity instruction. Absent such an
instruction, Pecpec argues, the jurors may not have unanimously
agreed that Pecpec committed the conduct described in each of the
19 counts. Pecpec also argues that his consecutive sentence on
Count 13 violates his constitutional rights to due process, equal
protection, and to be free from cruel and unusual punishment
because it may have been based on a verdict that was not
unanimous.
We hold that, under State v. Mundon, 121 Hawai#i 339,
355, 219 P.3d 1126, 1142 (2009), the family court was required to
give a specific unanimity instruction in the circumstances of the
instant case. However, we hold that the family court’s error did
not contribute to Pecpec’s convictions, because there is no
“genuine possibility” that the jurors could have found Pecpec
guilty without unanimously concluding that he committed each of
the acts presented in the State’s exhibits. Cf. id. at 354-55,
219 P.3d at 1141-42. The jury was presented with 19 exhibits,
and convicted Pecpec on 19 counts that corresponded to the dates
on which the conduct in those exhibits allegedly occurred. The
presentation of the evidence, jury instructions, and arguments of
both counsel made clear that there was a one-to-one relationship
between counts and exhibits. Thus, there is no reasonable
possibility that Pecpec was convicted on less than a unanimous
verdict. Accordingly, the family court’s error in failing to
provide a specific unanimity instruction was harmless.
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However, we hold that the family court abused its
discretion in sentencing Pecpec to a consecutive sentence on
Count 13. The family court sentenced Pecpec to a consecutive
sentence based on the conduct set forth in Exhibit 17. However,
the record does not support an inference that the jury found
Pecpec guilty on Count 13 based specifically on the conduct
memorialized in Exhibit 17, and thus the sentence was improper.
Accordingly, we vacate Pecpec’s sentence on Count 13
and remand for re-sentencing. We affirm the family court’s
June 4, 2010 Amended Judgment of Conviction and Sentence in all
other respects.
I. Background
On April 15, 2010, the State charged Pecpec by way of
complaint with 25 counts of Violation of an Order for Protection,
in violation of Hawai#i Revised Statutes (HRS)
§ 586-11(a)(1)(A).2 The language of each count was identical,
2
HRS § 586-11(a) (Supp. 2009) provides, in relevant part:
(a) Whenever an order for protection is granted
pursuant to this chapter, a respondent or person to be
restrained who knowingly or intentionally violates the
order for protection is guilty of a misdemeanor. A
person convicted under this subsection shall undergo
domestic violence intervention at any available
domestic violence program as ordered by the court. The
court additionally shall sentence a person convicted
under this subsection as follows:
(1) For a first conviction for violation of the
order for protection:
(A) That is in the nature of non-domestic
abuse, the person may be sentenced to a jail sentence
of forty-eight hours and be fined not more than $150;
provided that the court shall not sentence a defendant
to pay a fine unless the defendant is or will be able
to pay the fine[.]
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except for the date of the alleged violation:
On or about [date], in the City and County of
Honolulu, State of Hawaii, [Pecpec] did intentionally
or knowingly violate the Order of Protection issued in
FC-DA No. 08-1-1887, filed on the 15th day of
September, 2008, by the Honorable Linda S. Martell,
Judge of the [family court], State of Hawai#i,
pursuant to Chapter 586 of the [HRS], thereby
committing the offense of Violation of an Order for
Protection in violation of Section 586-5.5 [3] and
Section 586-11(a)(1)(A) of the [HRS].
Counts 1 through 6 alleged violations on October 19,
2009. Count 7 alleged a violation on October 22, 2009. Counts 8
through 15 and 18 through 22 alleged violations on November 6,
2009. Counts 16 and 22 through 25 alleged violations on
November 7, 2009. Finally, Count 17 alleged a violation on
November 8, 2009.4
A. Trial
The complaining witness (“CW”) testified that she and
Pecpec were married from 1997 to 2007 and had five children
together. CW testified that, on September 15, 2008, she obtained
an Order for Protection against Pecpec, which was effective until
3
HRS § 586-5.5(a) (Supp. 2001) provides, in relevant part:
If, after hearing all relevant evidence, the
court finds that the respondent has failed to show
cause why the order should not be continued and that a
protective order is necessary to prevent domestic
abuse or a recurrence of abuse, the court may order
that a protective order be issued for a further fixed
reasonable period as the court deems appropriate.
4
Although nothing in the language of each count distinguished the
counts involving the same date from one another, the caption of the complaint
correlated each count with a different police report number. The
corresponding police reports, which are contained in the record on appeal,
state the date and time of each alleged violation and specify whether each
violation occurred by way of voicemail or text message. However, it does not
appear that this correlation between the police reports and the charged counts
was presented to the jury, and the police reports were not admitted into
evidence.
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September 2013. A redacted copy of the September 15, 2008 Order
for Protection was admitted into evidence.5 The Order prohibited
Pecpec from, inter alia, contacting CW by phone or text message,
but allowed for “LIMITED contact . . . for the purpose of”
“attending courtroom proceedings” and “service of legal documents
by mail or through a process server.”
CW testified that Pecpec left her six voicemails on her
office telephone on October 19, 2009. CW could not remember the
exact times of the voicemails, but stated that they were left
“from 10:00 in the morning, on” “during business hours.” CW
could not remember the exact content of the voicemails but
testified that the voicemails discussed “various, different
things[,]” such as speculating that she was not answering her
work phone because she had been out late and that their oldest
son “really wasn’t his and that’s probably why his son wanted to
change his last name.” CW recorded the voicemails but did not
provide the recordings to the prosecutor because she “wrote down
whatever was said on the message.”
CW testified that she also received voicemails from
Pecpec on October 22, November 6, November 7 and November 8,
2009. CW saved these voicemails, recorded them, and gave the
recordings to the prosecutor’s office. Redacted versions of the
recordings were admitted into evidence over defense counsel’s
5
The redactions removed, inter alia, language referencing domestic
abuse by Pecpec against CW.
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objection as State’s Exhibits 13 through 23. CW testified that
Exhibit 23 contained a voicemail she received on October 22,
2009. CW testified that Exhibits 15 through 22 contained
voicemails she received on November 6, 2009 as follows: Exhibit
15 was received after 1:00 p.m.; Exhibit 16 was received at 1:25
p.m.; Exhibit 17 was received at 1:28 p.m.; Exhibit 18 was
received at 1:46 p.m.; Exhibit 19 was received at 1:50 p.m.;
Exhibit 20 was received at 1:51 p.m.; Exhibit 21 was received at
2:05 p.m.; and Exhibit 22 was received at 3:40 p.m. CW testified
that Exhibit 14 contained a voicemail she received on November 7,
2009 at “about” 2:15 p.m. Exhibit 13 contained a voicemail she
received on November 8, 2009 at “about 5:00 p.m.”
The recordings were published to the jury and
transcribed as follows6:
[Exhibit 23, October 22, 2009:] (Indiscernible).
But you know, [CW], that’s what you gotta
(indiscernible), okay. (Indiscernible) fucking have
any love for me or whatsoever in front of the kids,
because you never did. When I think of the -- fucking
our past (indiscernible), when I think about fucking
when you gave me a special gift, you probably wouldn’t
even remember what you gave me; but I still do
(indiscernible).
. . . .
[Exhibit 22, November 6, 2009:] What? You not
going to answer the phone now? Huh? Don’t worry, I
said. The (indiscernible) is getting clearer and
clearer and clearer. That’s why you spend so much
time at Ko Olina with your time-shares with
(indiscernible) of people. That’s why you spend so
much time at Ala Moana Hotel with the bunch of people
that you fucking working with, okay.
6
The State introduced each voicemail by stating the exhibit number
and the alleged date of the voicemail. The exhibit number and the date
provided by the State appear in brackets in the passage quoted above.
Based on CW’s testimony regarding the exhibit numbers, supra, it
appears the voicemails for November 6, 2009 were not published to the jury in
the order in which they were allegedly received.
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Oh, if I were you, I would have your friend
cancel the fucking reservation November 17th, that
whole week, (indiscernible).
. . . .
[Exhibit 21, November 6, 2009:] You know, I
don’t know if you remember about when you had asked me
about how I wen’ ask about your job.
So what do you think about your new job?
. . . .
[Exhibit 20, November 6, 2009:] July 26, July
28, (indiscernible) July 24, or July 23rd.
(Indiscernible) fuck you.
. . . .
[Exhibit 19, November 6, 2009:] You know, bottom
line for me (indiscernible), yeah, just because I call
you up, it doesn’t necessarily mean I wen’ smoke,
okay. I remember this, now. I keep telling you guys
that when (indiscernible) did something to
(indiscernible) and his wife, he wasn’t high. I keep
telling you (indiscernible), the sisters, and it was
(indiscernible), okay. (Indiscernible). That’s why
to me (indiscernible).
You already know what she did in the past about
this relationship, so -- everybody can see that
already, everybody except the fucking guys that, you
know, kiss ass for the pussy. Because why? The
fuckers no (indiscernible).
. . . .
[Exhibit 18, November 6, 2009:] (Indiscernible),
fucking (indiscernible), okay. (Indiscernible) make
me go to the Hawaiian National Bank? Because that’s
where (indiscernible). (Indiscernible.)
. . . .
[Exhibit 17, November 6, 2009:] (Indiscernible).
(Indiscernible) fucking (indiscernible).
(Indiscernible) because all those fuckers are sorry
asses, too, okay. But they cannot afford to get
divorced from their wife because the wife will take
everything, okay.
(Indiscernible) going on, [CW]. I told you, when
you sent me to jail, you only made me stronger.
Stronger by what? Meeting the people that I needed to
meet, okay. That’s why, I go in again, and if I stay
in two years, more fucking strong I come, okay. On
the outside I’m already solid. Inside, I even more
solid, okay. (Indiscernible) the kind of thing that’s
comes to -- to me. (Indiscernible) I hope you
understand that, okay.
Now, the police help you out. Why? Because
(indiscernible) helping you. (Indiscernible) helping
you because why (indiscernible), okay, in Alewa
Heights, all those things, okay, and all those people
have contact. But you know what? Like I said,
sometimes (indiscernible) really help because there’s
a price to pay for all those kids. (Indiscernible).
Why? They have no fucking (indiscernible).
. . . .
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[Exhibit 16, November 6, 2009:] Like I said,
[CW], I’m not (indiscernible) to kill you. I’m not
doing nothing wrong to you. I brought up
(indiscernible) name. (Indiscernible) ways to hurt
you. No, no, no, no. (Indiscernible) saying that,
okay. But all I’m saying is, that, just because I
talk the way I talk doesn’t mean I did what you
accusing me of for the fucking past six, seven years,
okay. But maybe it was you that was smoking; that’s
why you had to make yourself feel good, okay. But
like I said, [CW], you will continue to deny me. Why?
Because you cannot remember all the lies you have said
to me. (Indiscernible).
Oh, this is what I wanted to say: Like the
pharmaceutical company, with the insurance, with
(indiscernible), and with your doctors and you as a
patient, it is the way they work around. And that’s
why these people all hang out and drink together.
Now, the bank, construction workers, homeowners, the
subcontractors and everything, that’s why they all
party together. Why? Because that’s the way they
going get their money. Or else there wouldn’t be any
(indiscernible) for anybody. You see? That’s why you
been doing (indiscernible). (Indiscernible)
government’s money, just to fucking (indiscernible)
and they find themself in the bedroom fucking, making
people’s life miserable.
Like I said, (indiscernible). I’m just showing
her family and Randall, too -- because Randall’s a
(indiscernible), too, okay. I hope you see that.
(Indiscernible). And if they get girlfriend, I say,
Sorry, but you cannot come around; I’m not going to
destroy your relationship with your other -- your
girlfriend. I don’t want to be part of that. My
friends already wen’ use me to do -- destroy mine,
okay. I’m not that kind of person (indiscernible).
If you want destroy your relationship with your
girlfriend, you do it on your own. Don’t do
(indiscernible) on my time.
. . . .
[Exhibit 15, November 6, 2009:] (Indiscernible).
Remember you said that you wanted to purchase? Yeah?
(Indiscernible) [CW], because of you, using my money,
okay. Since when you (indiscernible) concerned?
You’re (indiscernible) gone for two days, okay. Go
hide in Ala Moana Hotel. Go hide in the apartment
(indiscernible). (Indiscernible) you’re a sick
person, I told you.
I’m going to let you know, I’m going to do one
other -- I’m going to contest the TRO again, okay.
I’m also going to contest the Divorce Decree again,
okay. And this time I’m going to let the kids talk in
court. Those are the kids (indiscernible) subpoenaed.
I’m going to subpoena everybody that knows what’s
going on already, okay. I’m also going to bring out
about the bank statements and our deposits and all
those things. (Indiscernible) judge wen’ ask about
what I do, what I did, okay. I didn’t want to talk
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about it because it involves you; but you’re forcing
me to do it, okay. (Indiscernible). (Indiscernible)
aren’t going to help you, okay. At least
(indiscernible) support, [CW]. This is something that
you always talked about to me. Now that I have it,
you don’t want it? Why? Why? Because you fucked up.
Fuck that, you know. Fuck it. If this is the way
you’re going to raise the kids, don’t involve me with
them, okay. Why don’t you go find a father that you
(indiscernible) with them.
. . . .
[Exhibit 14, November 7, 2009:] I’m sorry to say
this, but you turned off your fucking phone on me, on
nobody else, yeah. (Indiscernible), okay.
. . . .
[Exhibit 13, November 8, 2009:] (Indiscernible)?
(Indiscernible), yeah, when you were fucking
(indiscernible). (Indiscernible).
(Internal quotation marks omitted).
CW testified that she also received text messages from
Pecpec on November 6 and November 7, 2009. CW saved these
messages and forwarded them to another cell phone with a larger
screen, and then took digital photographs of the messages and
gave the photographs to the prosecutor’s office. The photographs
were admitted into evidence over defense counsel’s objection as
State’s Exhibits 5 through 12. CW testified that Exhibits 5
through 9 contained text messages she received on November 6,
2009 as follows: Exhibit 5 was received at approximately 9:40
p.m.; Exhibit 6 was received at 9:53 p.m.; Exhibit 7 was received
at 10:21 p.m.; Exhibit 8 was received at 10:33 p.m.; and Exhibit
and 9 was received at 10:47 p.m. CW testified that Exhibits 10
through 12 contained text messages she received on November 7,
2009 as follows: Exhibit 10 was received at 3:36 a.m.; Exhibit 11
was received at 3:47 a.m.; and Exhibit 12 was received at 5:42
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a.m.
The photographs of the text messages were published to
the jury. The text messages read as follows7:
[Exhibit 5, November 6, 2009] FWD: No need look
for me i got u on G P S i also
[Exhibit 6, November 6, 2009] FWD: Must be nice
to see men or lesbians jump to help u with ur problem
using the pussy i ate n fuck. Hard to replace me in
the way i ate n fuck u
[Exhibit 7, November 6, 2009] FWD: How’s the
Shack n the small men mentality cops. I hope the balls
they have can give me a challenge just ask Maribel if
i’m scared
[Exhibit 8, November 6, 2009] FWD: I been doing
my homework. The guy’s u have can’t protect themselves
bcuz i know who they r. N cars they drive n license
plate how’s that. I’m fm. 94 block
[Exhibit 9, November 6, 2009] FWD: U can alway’s
at the bus stop, running, or riding a bike, or riding
in a car tinted next to u. Watching u give head that’s
nuts.
[Exhibit 10, November 7, 2009] FWD: Same
scenerio every week not home to care for the kids yet
she forces them to go home so she can get eaten n fuck
all night. That’s y u did I U D n not get preg
[Exhibit 11, November 7, 2009] FWD: So silly u
think u can handle me but cannot handle me fucking u.
3 am not home doesn’t look good to C P S
[Exhibit 12, November 7, 2009] FWD: I told u i
hope u r not helping to destroy a family by staying
out all night with ur friends bcuz some is not good in
breaking up
CW testified that she did not give Pecpec permission to
contact her by phone or text message on any of the alleged dates.
CW testified that the voicemails she received from Pecpec on
October 19 and 22, 2009 made her feel “[n]ervous.” In response
to these calls, CW called Pecpec because she was concerned that
the voicemails indicated Pecpec knew her whereabouts. CW
7
The prosecution marked each exhibit with the date CW allegedly
received the text message. That date appears in brackets in the passage
quoted above.
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testified that the conversations mostly involved Pecpec “accusing
[her] of something,” and that she “would just listen sometimes
and try to be calm if he sounded agitated.” CW testified that
she told Pecpec to stop calling her “because this is a
violation.” She testified that she contacted Pecpec “because
[she] was scared and [] wanted to say, you know, What is it that
you want?”
CW testified that the voicemails and text messages she
received from Pecpec on November 6, November 7, and November 8,
2009 made her feel “[n]ervous and scared.” CW again contacted
Pecpec during this time frame because “some of the texts entailed
GPS” or other indications that Pecpec knew her whereabouts. CW
testified that she contacted Pecpec to “have him stop calling
[her]” and to “get an idea of where he was.”
On cross-examination, CW testified that Pecpec filed a
motion to dissolve the Order for Protection on May 29, 2009, and
that a hearing on the motion was scheduled for October 19, 2009
at 8:30 a.m. Pecpec did not appear at the hearing. CW could not
recall whether Pecpec called her on October 19, 2009 to ask about
the hearing, but stated that she would not have included those
phone calls in her complaint because “it could have just been
regarding the court.”
Defense counsel asked CW regarding the content of the
voicemails she received on October 19, 2009 that were the subject
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of her complaint. CW stated that she wrote the content of the
voicemails on the statement she made to the police. However,
upon being shown her statement, CW testified that she did not
write the content of the voicemails on her statement.
CW also testified that, around November 6, 2009, she
had a conversation with one of her sons (“AP”) in which she
threatened to call the police because Pecpec was with the
children even though he was prohibited from having contact with
them. On redirect, CW testified that she did not report this
incident to the police because she “didn’t want the kids to see
their dad getting arrested, and they came home[.]”
AP, who is Pecpec and CW’s son, testified as a witness
for the defense. AP testified that, on November 6, 2009, he was
at his grandparents’ house when CW called. CW found out that
Pecpec was also at the house. Pecpec then left the house, but CW
thought Pecpec was still there and told AP to come home. AP told
CW that he did not want to go home, and CW told AP that she would
call the police if he did not come home. AP testified that he
wanted to stay at his grandparents’ house because he wanted to
see his dad. AP did not leave his grandparents’ house and
instead stayed there for several hours. Pecpec eventually
returned and talked with CW on the phone.
Pecpec testified in his own defense. With regard to
October 19, 2009, Pecpec testified that he was late for the
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hearing on his motion to dissolve the Order for Protection and
therefore missed the hearing. Pecpec stated that he called CW
later on October 19, 2009 to discuss the hearing and to explain
that he had missed the hearing because he was suffering from a
kidney stone the previous night. Pecpec testified that the call
lasted approximately 10 to 15 minutes and was solely concerned
with the hearing. After that call, he received a call from CW
but could not answer it because he was on the phone with someone
else. He then left CW three voicemails on October 19, 2009 at
10:14 a.m., 10:24 a.m., and 10:26 a.m., because she had asked him
to call her back. All three of the voicemails concerned the
court hearing. Pecpec testified that CW called him back after
these voicemails. Pecpec denied calling CW on October 19, 2009
at 12:08 p.m. or 12:20 p.m. and stated that he was on the bus at
that time.8 Pecpec also denied calling CW on October 22, 2009.
Pecpec testified regarding an incident at his parents’
house on November 6, 2009. Pecpec’s children came to the house
and, after he said “hi” to them, he left. He then received a
call from his son, AP, who was crying. AP told Pecpec that CW
was going to call the police if the children didn’t go home. At
approximately 1:00 p.m., while still on the phone with AP, Pecpec
8
As noted, CW did not testify to the exact times of the voicemails
she received on October 19, 2009. See supra, p.6. However, the times Pecpec
referred to in his testimony correspond with the times listed in the police
reports concerning the October 19, 2009 violations. See supra, n.4.
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received a call from CW, who asked him to tell the children to go
home. Pecpec testified that he then went “back and forth”
between calls from CW and AP until he got back to the house.
After arriving at the house, CW “kept calling, leaving []
messages to call her back.”
With regard to the November 6, 2009 voicemails, Pecpec
testified that he “might have” left CW a voicemail at 1:16 p.m.,
asking her to “[h]ang on” because he was busy. When asked about
the voicemail contained in Exhibit 22, which defense counsel
identified as allegedly being left on November 6, 2009 at 1:16
p.m., Pecpec testified that he did not leave that voicemail on
November 6, 2009, but “maybe a different time.”9 Pecpec
testified that he called CW at 1:25 p.m. to ask her to let the
children stay at his parents’ house, but she refused. When asked
about the voicemail contained in Exhibit 21, which defense
counsel identified as allegedly being left on November 6, 2009 at
1:25 p.m., Pecpec testified that the voicemail contained in
Exhibit 21 “never happened[.]” Pecpec also testified that the
voicemails contained in Exhibits 19, 18, 17, 16 and 15 were not
9
During Pecpec’s testimony, defense counsel appeared to identify
the conduct described in Exhibit 22 as relating to 1:16 p.m.; Exhibit 21 as
relating to 1:25 p.m.; Exhibit 19 as relating to 1:46 p.m.; Exhibit 18 as
relating to 1:50 p.m.; Exhibit 17 as relating to 1:51 p.m.; Exhibit 16 as
relating to 2:05 p.m.; and Exhibit 15 as relating to 3:40 p.m. However, this
is inconsistent with CW’s testimony regarding the timing of the voicemails.
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made on November 6, 2009.10
Pecpec talked with CW at approximately 9:30 p.m. on
November 6, 2009 after his children returned home. Pecpec
testified that CW stated, “You know what? Fuck you. More better
I look for you myself and shoot you, you fucker.”
Pecpec testified that he did not call CW on November 7,
2009 at 2:15 p.m., and did not have a recollection of the
voicemail contained in Exhibit 14. Pecpec testified that he did
not call CW on November 8, 2009 at 5:15 p.m., and that the
voicemail contained in Exhibit 13 was made at a previous time.
Pecpec also testified that he did not leave the voicemail
contained in Exhibit 23 on October 22, 2009, but rather at a
previous time. Pecpec did not state when these voicemails were
left, but did not testify that he left these voicemails prior to
the September 15, 2008 effective date for the Order for
Protection.
With regard to the text messages on November 6, 2009,
Pecpec testified that he remembered writing the message CW
allegedly received at 9:40 p.m., but did not remember sending it.
The message was written in response to CW’s threatening Pecpec
over the phone. CW responded to the text message by writing,
“Fuck you.” Pecpec also remembered writing the message CW
10
Defense counsel did not question Pecpec regarding the voicemail
contained in Exhibit 20.
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allegedly received at 9:53 p.m., but did not remember sending it.
Pecpec testified that he did not send CW text messages on
November 6, 2009 at 10:21 p.m., 10:33 p.m., or 10:47 p.m., and
that the text messages contained in Exhibits 7 through 9 were
made at a different time.
With regard to the text messages on November 7, 2009,
Pecpec testified that the text message contained in Exhibit 10
was not made on November 7, 2009, but was made the following
week. Pecpec also testified that the text messages contained in
Exhibits 11 and 12 were not made on November 7, 2009.
On cross-examination, Pecpec testified that he received
the Order for Protection and knew that he was prohibited from
contacting or threatening CW. Pecpec confirmed that he left CW
the voicemails that had been played for the jury.
CW was called as a rebuttal witness for the State.
Regarding the incident involving AP, CW testified that she did
not tell Pecpec, “More better I look for you myself and shoot you
myself[.]”
During the settling of jury instructions, neither
Pecpec nor the State requested a specific unanimity
instruction.11 The family court instructed the jury that “[a]
11
Hawai#i Pattern Jury Instructions--Criminal (HAWJIC) provides the
following “generic” unanimity instruction:
The law allows the introduction of evidence for
(continued...)
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verdict must represent the considered judgment of each juror, and
in order to return a verdict, it is necessary that each juror
agree thereto. In other words, your verdict must be unanimous.”
(Emphasis added). The family court also instructed the jury with
regard to the elements of the offense. With regard to Counts 1
through 17, the family court instructed the jury 17 separate
times, as follows, changing only the count number and the date:
As to Count [count number] of the Complaint,
[Pecpec] is charged with the offense of Violation of
An Order for Protection.
A person commits the offense of Violation of An
Order for Protection if he intentionally or knowingly
engages in conduct which is prohibited by an Order for
Protection issued by a Judge of the Family Court that
was then in effect. There are four material elements
of the offense of Violation of An Order for
Protection, each of which the prosecution must prove
beyond a reasonable doubt.
These four elements are:
1. That on or about [date] in the City and
County of Honolulu, State of Hawai#i an Order for
Protection issued by a Judge of the Family Court
pursuant to [c]hapter 586 of the [HRS], was in effect,
prohibiting [Pecpec] from engaging in certain conduct,
namely contacting or threatening [CW], by either
telephone or recorded message; and
2. That on or about [date], in the City and
11
(...continued)
the purpose of showing that there is more than one
[act][omission][item] upon which proof of an element
of an offense may be based. In order for the
prosecution to prove an element, all twelve jurors
must unanimously agree that [the same act][the same
omission][possession of the same item] has been proved
beyond a reasonable doubt.
HAWJIC Instruction 8.02 (brackets in original).
Although the HAWJIC refers to this instruction as a “generic”
unanimity instruction, this type of instruction is referred to as a “specific”
unanimity instruction in our caselaw. See, e.g., State v. Arceo, 84 Hawai#i
1, 33, 928 P.2d 843, 875 (1996) (identifying a “specific” unanimity
instruction as one that “advises the jury that all twelve of its members must
agree that the same underlying criminal conduct has been proved beyond a
reasonable doubt”).
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County of Honolulu, State of Hawai#i, [Pecpec]
intentionally or knowingly engaged in certain conduct,
namely contacting or threatening [CW] by either
telephone or recorded message, which was conduct
prohibited by the Order for Protection; and
3. That [Pecpec] knew, at the time, that such
conduct was prohibited by the Order for Protection;
and
4. That [Pecpec] was given notice of the Order
for Protection prior to engaging in such conduct by
having been personally served with the Order for
Protection.
The prosecution must prove beyond a reasonable
doubt that [Pecpec] acted intentionally or knowingly
as to each element of the offense.
With regard to Counts 18 through 25, the family court
provided the same instruction as for the previous counts, but
replaced the phrase “by either telephone or recorded message”
with the phrase “by text message.” The family court repeated
this instruction 8 separate times, changing the count number and
date.
In instructing the jury regarding the form of its
verdict, the family court repeated the following instruction 25
times, changing the count number with each repetition:
In Count [count number] of the Complaint, as to
Defendant ORLANDO PECPEC, you may bring in either one
of the following verdicts:
1. Not guilty; or
2. Guilty as charged of Violation of An Order
for Protection.
Your verdict must be unanimous.
(Emphasis added).
In closing argument, the State argued that CW’s
testimony was more credible than that of Pecpec regarding the
dates and times of the alleged voicemails and text messages. The
State also connected the charged counts to the dates and exhibits
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as follows:
Now, you have before you 25 counts and numerous
dates of incidents. Let’s go over it quickly to try
to break it down and make it a little easier.
Okay. So we’re talking about 25 counts of
Violation of an Order for Protection. We know that
they fall into two categories -- voice mails and text
messages. The voice mails would be your first 17
counts, Counts [1] to [17]. The text messages would
be your next eight counts, Counts [18] to [25].
Now, let’s look first at the voice mails. The
voice mails are grouped in terms of the dates of
incident. Counts [1] through [6] are from October 19,
2009; Count [7] is from October 22; Counts [8] to [15]
are November 6; Count [16] from November 7; and Count
[17] is from November 8.
Now, you listened to voice mails. These voice
mails are also associated with these dates. Exhibit
23 is the voice mail from October 22; Exhibit[s] 15 to
22 are from November 6; Exhibit 14 is from November 7;
Exhibit 13 is from November 8.
Switching now to the text messages. Counts [18]
to [25], they are also grouped in terms of the dates
of incident. Counts [18] to [22] are from November 6;
Counts [23] to [25] are from November 7. For each of
these text messages there are exhibits. Exhibits 5
through 9 are the text messages from November 6; and
Exhibits 10 to 12 are the text messages from November
7.
Defense counsel argued that the voicemails on
October 19, 2009 concerned the hearing to dissolve the Order for
Protection. Defense counsel also argued that CW was not
credible, and that CW continued to contact Pecpec between
November 6 and November 8, 2009. Defense counsel also pointed
out that CW did not include the date and time stamp on her
recordings of the voicemails, and that Pecpec testified that the
voicemails were from another time.
In rebuttal closing, the State argued:
Ladies and gentlemen, the Order for Protection
prohibits him, prohibits [Pecpec] from contacting
[CW], threatening her. State has shown beyond a
reasonable doubt that he did just that 25 times.
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(Emphasis added).
The jury found Pecpec not guilty on Counts 1 through 6,
i.e., the voicemails on October 19, 2009. The jury found Pecpec
guilty on the remaining 19 counts.
At sentencing, the State recommended that Pecpec be
sentenced to a one-year term of incarceration on each count, with
four of the sentences to run concurrently. The State did not
identify any specific counts for which concurrent sentencing
should be imposed, but stated that it was “looking at a sentence
of five years total[.]” Defense counsel requested only that
Pecpec be given credit for time served. The family court then
inquired regarding the count to which Exhibit 17 related:
THE COURT: Okay. Counsel[ for the State],
Exhibit 17, November 6, 2009, turning your attention
to the transcripts, is that Count [10]?
[STATE]: Exhibit 17 is Count [13].
THE COURT: Exhibit 17 is -- is Count [13]?
[STATE]: Yes, your Honor.
THE COURT: Okay. Do you agree, counsel for
Defense?
[DEFENSE]: I’m sorry. I didn’t bring my
complete file.
THE COURT: Okay. No problem.
Do you wish to have your client address the
[c]ourt at this point?
Pecpec allocuted, and the family court subsequently
reviewed Pecpec’s history of violence against CW, his history of
drug use, his past convictions for harassment and violations of
an order for protection, and the number of convictions in this
case. The family court sentenced Pecpec to a one-year term of
incarceration on each count, to run concurrently, with the
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exception of Count 13 for which the sentence was to run
consecutive to the remaining counts. As to the sentence on Count
13, the court explained:
[T]he [c]ourt takes particular note that
[Pecpec] in this conversation, which is Count [13],
which I believe is Exhibit 17, which was recorded on
11 -- November 6, 2009, [Pecpec] blames the victim for
sending him to jail and that she’s -- and that because
he went to jail because of her it made him stronger.
And then he goes on to indicate to her that there’s a
price to pay for all these things, which the [c]ourt
interprets in its context to be a threat to the
victim’s life. The [c]ourt takes this serious [sic].
The [c]ourt finds in Count [13] that the circumstances
of this case, as well as the facts and circumstances
as the [c]ourt has already indicated [with regard to
Pecpec’s history of violence against CW and his
violations of other protective orders], warrants that
[Pecpec] be sentenced in Count [13] to one year
consecutive to the other counts.
On May 4, 2010, the family court issued a Judgment of
Conviction and Sentence.12 Pecpec filed his Notice of Appeal on
May 13, 2010. On June 4, 2010, the family court issued its
Amended Judgment of Conviction and Sentence, convicting Pecpec on
counts 7 through 25 and sentencing him to a one-year term of
incarceration on each count, to run concurrently, with the
exception of Count 13 for which the sentence was to run
consecutive to the remaining counts.
B. Appeal
In his opening brief, Pecpec argued that the family
court should have given the jury a specific unanimity instruction
because “[t]he State presented evidence of more than one act
12
This judgment did not state whether Pecpec was convicted of any
charges.
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which could support conviction in each count of the complaint,
and its election was not clear on the record.” (Citing Arceo, 84
Hawai#i at 32-33, 928 P.2d at 874-75 (1996)) (holding that, where
the State presents evidence of multiple instances of misconduct
but charges only one, the State must elect which act underlies
the charge or the trial court must issue a specific unanimity
instruction). Pecpec contended that the verdicts “were not
supported by unanimous agreement upon a single act constituting
the offense in each count[,]” and accordingly violated his right
to a unanimous verdict under the United States and Hawai#i
constitutions. Pecpec acknowledged that a Powerpoint
presentation used during the State’s closing argument contained
“slides with [sic] connect Counts of the Complaint to particular
exhibits identified by date and number.” However, Pecpec argued
that the Powerpoint slides “should not be construed as an
election” because they are not “clearly referenced or entered in
the record[.]”13
Pecpec also challenged his consecutive term sentence on
Count 13 on the ground that the jury verdict was not unanimous.
Pecpec stated that the family court “unilaterally assigned to
this particular count[] the conduct portrayed in State’s Exhibit
13
The State did not address the Powerpoint slides, and did not argue
that it elected the specific exhibit that supported each count. Moreover, as
noted by Pecpec, the Powerpoint slides are not contained in the record on
appeal. Accordingly, we do not consider them.
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17.”
In its answering brief, the State asserted that it
“introduced 19 separately identified exhibits that memorialized
19 distinct contacts [Pecpec] made with [CW] as the proof he
committed the 19 different offenses charged” in Counts 7 through
25. Therefore, the State argued, Arceo was inapplicable because
that case dealt with multiple acts underlying a single charged
offense, rather than an equal number of acts and counts. The
State also contended that “any uncertainty with regard to the
unanimity of the jury’s guilty verdicts for the [voicemail]
counts is erased by” Pecpec’s admission on cross that he left the
voicemails that were played in court. As to the consecutive term
sentence on Count 13, the State argued that, because the jury
unanimously found Pecpec guilty of the violation memorialized in
Exhibit 17, and because Pecpec admitted to leaving the voicemail
contained in Exhibit 17, the imposition of a consecutive term
sentence based on that exhibit did not constitute an abuse of
discretion.
Pecpec reiterated in his reply brief, that “each
[count] could [have been] supported by more than one of the acts
alleged” and that the State did not “establish or even contend
that the exhibits of November 6, 2008 are connected to any
specific count in the complaint.” Pecpec further argued that “it
is insufficient to present a number of exhibits to prove the same
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amount of counts, expecting that the jury attributes the
exhibits, in chronological or numerical order, to the counts in
sequence.”
In a summary disposition order signed by Judges
Nakamura and Ginoza, a majority of the Intermediate Court of
Appeals (ICA) held that the family court did not err by not
providing a specific unanimity instruction. Pecpec, 2011 WL
2037679, at *1. Specifically, the majority concluded that:
The jury was afforded sufficient guidance to know what
it had to conclude in order to convict on the multiple
counts asserted against Pecpec, and there is no
genuine possibility of jury confusion given the record
in this case. The prosecution presented evidence and
asserted throughout this case that Pecpec committed a
total of twenty-five acts (voice mails or texts) which
were the basis for the twenty-five counts of violating
a Protective Order that prohibited Pecpec from
contacting the complainant, his ex-wife.
Id.
The majority also noted that Pecpec admitted leaving
the voicemails that were played in court; the family court
instructed the jury in various ways that its verdict must be
unanimous; and there was a one-to-one relationship between the
number of counts and the number of exhibits, which distinguished
this case from Arceo. Id. at *2-5. Finally, the majority noted
that “for Counts 7-25, the jury convicted on all the counts for
dates on which multiple counts were charged. For this to occur,
the jury must have unanimously found that Pecpec engaged in each
of the prohibited contacts reflected in the exhibits.” Id. at
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*5. Accordingly, the ICA held that Pecpec was not entitled to
relief.14 Id.
The majority also rejected Pecpec’s arguments
concerning the consecutive term sentence on Count 13, noting that
the family court conferred with both counsel before relying on
Exhibit 17, and the voicemail contained in Exhibit 17 “was an act
by Pecpec upon which the jury unanimously agreed to convict.”
Id. Accordingly, the majority affirmed the family court’s
judgment. Id.
Judge Reifurth concurred in part and dissented in
part.15 Id. at *5-6. The dissent agreed with the majority that
no specific unanimity instruction was necessary for counts
alleging violations on dates for which there was only one
voicemail or text message, i.e., Count 7 (a voicemail on October
22, 2000), Count 16 (a voicemail on November 7, 2009), and Count
17 (a voicemail on November 8, 2009). Id. at *7. However, the
dissent would have required a specific unanimity instruction for
dates where multiple violations of the same type were charged,
i.e., Counts 8-15 (voicemails on November 6, 2009), Counts 18-22
(text messages on November 6, 2009), and Counts 23-25 (text
14
Despite this holding, the majority noted that, had the State
specified the time or content of the voicemails and text messages for each
count of the complaint, it would have eliminated any issues regarding
unanimity. Id. at *5.
15
For ease of reference, we refer to the concurring and dissenting
opinion as the “dissent.”
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messages on November 7, 2009). Id. The dissent expressed
concern that some of the jurors may have believed that a single
act supported multiple counts of the complaint. Id. The dissent
illustrated this concept as follows:
For example, Juror 1 might conclude that Exhibit
15 (voice mail received November 6, 2009 at 1:00 p.m.)
supports conviction on Count 8 and that Exhibit 16
(voice mail received November 6, 2009 at 1:25 p.m.)
supports conviction on Count 9, while Juror 2 does not
believe that Exhibit 15 supports a conviction at all,
but that Exhibit 16 supports a conviction on both
Counts 8 and 9. Under those circumstances, [Pecpec]
is denied his constitutional right to a unanimous
verdict on Count 8 under article I, sections 5 and 14
of the Hawai#i Constitution.
Id. (footnotes omitted).
Accordingly, the dissent would have vacated the family
court’s judgment as to the convictions on Counts 8-15 and 18-25
and remanded for further proceedings. Id. at *9.
The ICA filed its judgment affirming the family court’s
Amended Judgment of Conviction and Sentence on June 7, 2011.
Pecpec timely filed his application on July 29, 2011, in which he
raises the following questions:
Did the [ICA] err by violating [Pecpec’s] right
to unanimous jury verdict guaranteed under Amendment
VI to the U.S. Constitution and Art. I, §14 of the
Constitution of the State of Hawaii, in affirming
[Pecpec’s] convictions where no Specific Unanimity
Instruction was given to the jury and the State did
not make an election of counts?
Did the ICA err in violating [Pecpec’s] right to
due process Amendment VI to the U.S. Constitution and
Art. I, §14 of the Constitution of the State of
Hawai#i, Equal Protection Under the Law Amendments V
and XIV to the U.S. Constitution and Art. I, §§5 and
14 of the State of Hawaii Constitution and cruel and
unusual punishment Amendment VIII th [sic] the U.S.
Constitution and Art. I, §12 of the Constitution of
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the State of Hawaii by affirming consecutive sentence
predicated on verdicts which were not unanimous?
(Internal brackets omitted).
The State did not file a response.
II. Standards of Review
A. Omission of Jury Instructions
When jury instructions or the omission thereof
are at issue on appeal, the standard of review is
whether, when read and considered as a whole, the
instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading.
Erroneous instructions are presumptively harmful
and are a ground for reversal unless it affirmatively
appears from the record as a whole that the error was
not prejudicial.
Arceo, 84 Hawai#i at 11, 928 P.2d at 853 (internal quotation
marks, brackets, and citations omitted); see also State v.
Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984 (2006) (“[O]nce
instructional error is demonstrated, we will vacate, without
regard to whether timely objection was made, if there is a
reasonable possibility that the error contributed to the
defendant’s conviction, i.e., that the erroneous jury instruction
was not harmless beyond a reasonable doubt.”).
B. Sentencing
A sentencing judge generally has broad
discretion in imposing a sentence. The applicable
standard of review for sentencing or resentencing
matters is whether the court committed plain and
manifest abuse of discretion in its decision. Factors
which indicate a plain and manifest abuse of
discretion are arbitrary or capricious action by the
judge and a rigid refusal to consider the defendant’s
contentions. And, generally, to constitute an abuse
it must appear that the court clearly exceeded the
bounds of reason or disregarded rules or principles of
law or practice to the substantial detriment of a
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party litigant.
State v. Rauch, 94 Hawai#i 315, 322, 13 P.3d 324, 331 (2000)
(internal quotation marks, brackets, and citations omitted).
III. Discussion
Pecpec argues that his convictions on Counts 8-15,
18-22 and 23-25 were obtained in violation of his right to a
unanimous verdict because the State did not elect which exhibits
corresponded to which counts, and the family court did not give
the jury a specific unanimity instruction. Pecpec also argues
that his consecutive sentence on Count 13 violates his
constitutional rights because it was “impossible to know” whether
Exhibit 17 corresponded to Count 13.
As set forth below, this court held in Mundon that a
specific unanimity instruction is required where multiple counts
are supported by the same number of acts, but the jury is not
informed as to which act corresponds with each count. 121
Hawai#i at 354-55, 219 P.3d at 1141-42. The facts in Mundon are
materially similar to those in the instant case. See id. at 354,
219 P.3d at 1141. Accordingly, the family court should have
given a specific unanimity instruction, and its failure to do so
was error. See id. at 354-55, 219 P.3d at 1141-42.
However, this error was harmless beyond a reasonable
doubt because there is no “genuine possibility” that different
jurors relied on different acts to support Pecpec’s convictions.
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Cf. id. As discussed in detail infra, the jury was presented
with 19 exhibits, and convicted Pecpec on 19 counts that
corresponded to the dates on which the conduct in those exhibits
allegedly occurred. The presentation of the evidence, jury
instructions, and arguments of both counsel made clear that there
was a one-to-one relationship between counts and exhibits. Thus,
there is no reasonable possibility that Pecpec was convicted on
less than a unanimous verdict.
Nevertheless, we conclude that the family court abused
its discretion in sentencing Pecpec to a consecutive sentence on
Count 13, because the record does not reflect that the jury found
Pecpec guilty on that count based specifically on the conduct
memorialized in Exhibit 17.
A. Although a specific unanimity instruction was required in
the instant case, the family court’s failure to give such an
instruction was harmless beyond a reasonable doubt
This court has stated that the right of an accused to a
unanimous jury verdict is guaranteed by the sixth amendment to
the United States Constitution16 and article I, sections 5 and
16
The sixth amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defence.
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1417 of the Hawai#i Constitution. Arceo, 84 Hawai#i at 30, 928
P.2d at 872. In Arceo, this court addressed the right to a
unanimous jury verdict, where a single count is supported by
multiple acts. Id. at 32-33, 928 P.2d at 874-75. There, the
defendant was charged with one count of sexual assault in the
third degree (Count 1) and one count of sexual assault in the
first degree (Count 2). Id. at 2-3, 928 P.2d at 844-45. At
trial, the complaining witness testified to multiple acts of
sexual contact in support of Count 1, and multiple acts of sexual
penetration in support of Count 2. Id. at 3, 928 P.2d at 845.
The jury found the defendant guilty on both counts. Id. at 10,
17
Article 1, section 5 of the Hawai#i Constitution provides: “No
person shall be deprived of life, liberty or property without due process of
law, nor be denied the equal protection of the laws, nor be denied the
enjoyment of the person’s civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.”
Article 1, section 14 of the Hawai#i Constitution provides:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial by an
impartial jury of the district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, or of such other
district to which the prosecution may be removed with
the consent of the accused; to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against the accused, provided that
the legislature may provide by law for the
inadmissibility of privileged confidential
communications between an alleged crime victim and the
alleged crime victim’s physician, psychologist,
counselor or licensed mental health professional; to
have compulsory process for obtaining witnesses in the
accused’s favor; and to have the assistance of counsel
for the accused’s defense. Juries, where the crime
charged is serious, shall consist of twelve persons.
The State shall provide counsel for an indigent
defendant charged with an offense punishable by
imprisonment.
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928 P.2d at 852.
On appeal, the defendant argued that the trial court
should have required the prosecution to elect the specific acts
it was relying on in seeking convictions, or should have given
the jury a specific unanimity instruction as to each count. Id.
at 3, 928 P.2d at 845. This court agreed and held that:
when separate and distinct culpable acts are subsumed
within a single count charging a sexual assault—any
one of which could support a conviction thereunder—and
the defendant is ultimately convicted by a jury of the
charged offense, the defendant’s constitutional right
to a unanimous verdict is violated unless one or both
of the following occurs: (1) at or before the close of
its case-in-chief, the prosecution is required to
elect the specific act upon which it is relying to
establish the “conduct” element of the charged
offense; or (2) the trial court gives the jury a
specific unanimity instruction, i.e., an instruction
that advises the jury that all twelve of its members
must agree that the same underlying criminal act has
been proved beyond a reasonable doubt.
Id. at 32-33, 928 P.2d at 874-75 (emphasis added).
Arceo is distinguishable from the instant case, because
the holding was dependent on there being “separate and distinct
culpable acts [] subsumed within a single count[.]” Id. In that
circumstance, there is a “genuine possibility” that the jurors
may not unanimously agree that the defendant committed the same
act for each count. Id. (citation omitted). For instance, given
two acts underlying a single count, some jurors may believe that
the defendant engaged in one act but not the other, while other
jurors may believe the opposite. In such a situation, the jury’s
verdict would not be unanimous as to either alleged act. In
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contrast, in the instant case, the State did not present evidence
of multiple acts that could support conviction under each count.
To the contrary, the 19 counts on which Pecpec was found guilty
were supported at trial by 19 exhibits, with each exhibit
reflecting a single act.
Accordingly, this case is more analogous to Mundon,
where the defendant was charged with two counts of terroristic
threatening in the first degree (TT1) based on two distinct acts,
but the jury found him guilty on only one count. 121 Hawai#i at
354, 219 P.3d at 1141. There, this court noted that a unanimity
instruction would not have been required under Arceo, but
nevertheless recognized that “the jury should be given a specific
unanimity instruction under additional circumstances.” Id. at
353, 219 P.3d at 1140. This court stated its holding as follows:
Because the jury: (1) was not given a specific
unanimity instruction with respect to the offense of
TT1; (2) was never informed which act committed by
Mundon coincided with counts 4 and 26, respectively;
and (3) convicted Mundon of one count of TT1 and
acquitted him of the other, there is a genuine
possibility that different jurors concluded that
Mundon committed different acts. . . . Thus, there
may not have been a unanimous verdict as to Mundon’s
conviction for TT1. Accordingly, we hold that, to
correct any potential confusion in this case, a
specific unanimity instruction should have been given
to ensure that the jury understood its duty to
unanimously agree to a particular set of facts, and
that the trial court plainly erred in failing to
provide such an instruction.
Id. at 354-55, 219 P.3d at 1141-42 (emphasis added) (citation,
quotation marks and brackets omitted).
This court’s holding in Mundon relied in part on the
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jury having acquitted the defendant of one of the charged
counts.18 Accordingly, it could be argued that a unanimity
instruction is required under Mundon only where the defendant is
found guilty on fewer counts than there are acts. However, a
trial court cannot decide to give a unanimity instruction after
the jury returns its verdict. Accordingly, the reasonable
inference from Mundon is that a unanimity instruction is required
in the circumstances of the instant case, i.e., where the number
of acts charged is identical to the number of acts offered in
evidence, but the jury is not informed as to which act coincides
with each count.19
18
The dissent suggests that this court found a genuine possibility
of juror confusion in Mundon solely because “the prosecution did not specify
which act coincided with each count and the court did not give the jury a
specific unanimity instruction.” Dissenting opinion at 17. However, as
noted, this court relied on three factors in concluding that there was a
genuine possibility for juror confusion in Mundon: (1) no unanimity
instruction was given; (2) the jury was not informed as which act corresponded
with each count; and (3) the jury convicted Mundon on one count and acquitted
him on the other. Id. at 354-55, 219 P.3d at 1141-42.
19
In oral argument, the State argued that State v. Keomany, 97
Hawai#i 140, 34 P.3d 1039 (App. 2000), is applicable to the present case. See
Oral Arguments before the Supreme Court (Oct. 6, 2011), available at
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc30500.html.
There, the defendant was indicted for and convicted on three counts of sexual
assault in the first degree based on three distinct acts, and two counts of
sexual assault in the third degree based on two distinct acts. Keomany, 97
Hawai#i at 143-45, 154, 34 P.3d at 1042-44, 1053. The ICA held that, under
those circumstances, a specific unanimity instruction was not required. Id.
at 154, 34 P.3d at 1053. The ICA distinguished Arceo because “there were more
discrete acts than counts” in Arceo, but an equal number of acts and counts in
Keomany. Id. In a concurring opinion, Judge Watanabe recognized that a
specific unanimity instruction was not required under this court’s caselaw,
and opined that, “since the jury returned guilty verdicts as to all of the
sexual assault counts, any error caused by individual jurors considering
different instances of culpable conduct for each count is probably harmless.”
Id. at 155, 34 P.3d at 1054.
The State is correct that, under the rule in Keomany, a specific
unanimity instruction would not be required in the instant case. However,
(continued...)
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In the instant case, the record does not reflect that
the jury was informed of the act that corresponded to each count.
Accordingly, under Mundon, the family court was required to
provide the jury with a specific unanimity instruction, and its
failure to do so constitutes error. 121 Hawai#i at 354-55, 219
P.3d at 1141-42. Erroneous instructions are a ground for
reversal “unless it affirmatively appears from the record as a
whole that the error was not prejudicial.” Id. at 349, 219 P.3d
1136 (quoting Nichols, 111 Hawai#i at 334, 141 P.3d at 981). “In
that context, the real question becomes whether there is a
reasonable possibility that error might have contributed to
conviction. If there is such a reasonable possibility in a
criminal case, then the error is not harmless beyond a reasonable
doubt[.]” Arceo, 84 Hawai#i at 12, 928 P.2d at 854 (citations
omitted).
The purpose of a specific unanimity instruction is to
protect a defendant’s constitutional right to a unanimous
verdict, where jurors otherwise would not know they are required
19
(...continued)
Keomany preceded our decision in Mundon, which held that a specific unanimity
instruction was required under circumstances similar to those presented here.
121 Hawai#i at 355, 219 P.2d at 1142. Accordingly, Keomany is unpersuasive.
In oral argument, the State also argued that State v. Horswill, 75
Haw. 152, 158-59, 857 P.2d 579, 582-83 (1993), stands for the proposition that
a unanimity instruction is not required where there are an equal number of
acts and counts. However, Horswill did not address a defendant’s
constitutional right to a unanimous verdict, id., and in any event, preceded
our decisions in Arceo and Mundon, which identify the circumstances under
which such an instruction is required.
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to unanimously agree that the defendant had committed the same
act. See Mundon, 121 Hawai#i at 354-55, 219 P.3d at 1141-42. In
the circumstances of the instant case, where the number of acts
offered into evidence corresponds to the number of counts, the
instruction guards against a potential lack of unanimity in the
event the defendant is, for example, acquitted on one or more
counts. See id. In the case of an acquittal, the one-to-one
relationship between counts and acts is unclear, and there is
therefore a “‘genuine possibility’ that different jurors
concluded [the defendant] committed different acts.” Mundon, 121
Hawai#i at 354, 219 P.3d at 1141.
However, in the instant case, there is no “reasonable
possibility” that the jurors did not unanimously agree that
Pecpec committed each of the 19 acts represented in the State’s
exhibits. The presentation of evidence, jury instructions, and
arguments of counsel20 made clear that there was a one-to-one
relationship between the State’s exhibits and the charged counts.
Accordingly, each juror must have concluded that Pecpec had
committed each of the acts represented in the exhibits in order
to have found him guilty on 19 counts.
Moreover, the jury was instructed 25 separate times,
20
Although “arguments of counsel are not evidence[,]” State v.
Yamada, 108 Hawai#i 474, 480 n.9, 122 P.3d 254, 260 n.9 (2005), they are
nonetheless relevant to our analysis here. The arguments of counsel were
consistent with the presentation of evidence and the jury instructions, which
reflected a one-to-one relationship between acts and counts.
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i.e., once for each count, as to the elements of the offense.
The jury also was instructed 25 separate times that it was
required to return a verdict of “Not guilty” or “Guilty as
charged of Violation of An Order for Protection” on each count.
Finally, the jury was instructed 25 separate times, “Your verdict
must be unanimous.” Thus, it would have been unreasonable for a
juror to believe that a single exhibit could have satisfied the
State’s burden of proof on more than one count.
Counsels’ arguments reinforced the one-to-one
relationship between acts and counts. In its opening statement,
the State asserted that, “between October 19 and November 8th of
[2009], [Pecpec] left 25 voice mails and text messages total for
the complainant” and that “Pecpec is charged with 25 counts of
Violation of an Order for Protection.” During closing argument,
the State argued:
For each violation of an Order for Protection,
the State needs to prove four things. . . .
. . . .
Now, turning to the third element -- and again,
these apply to each of the 25 charges -- did he
intentionally or knowingly engage in conduct that was
prohibited by the Order for Protection?
. . . .
Well, it wasn’t an accident. He left her 17
voice mails. You heard the voice mails. . . . He
sent her eight text messages. He acknowledged the
text message referring to the GPS. . . .
. . . .
Now, you have before you 25 counts and numerous
dates of incidents. Let’s go over it quickly to try
to break it down and make it a little easier.
Okay. So we’re talking about 25 counts of
Violation of an Order for Protection. We know that
they fall into two categories -- voice mails and text
messages. The voice mails would be your first 17
counts, Counts [1] to [17]. The text messages would
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be your next eight counts, Counts [18] to [25].
Now, let’s look first at the voice mails. The
voice mails are grouped in terms of the dates of
incident. Counts [1] through [6] are from October 19,
2009; Count [7] is from October 22; Counts [8] to [15]
are November 6; Count [16] from November 7; and Count
[17] is from November 8.
Now, you listened to voice mails. These voice
mails are also associated with these dates. Exhibit
23 is the voice mail from October 22; Exhibit[s] 15 to
22 are from November 6; Exhibit 14 is from November 7;
Exhibit 13 is from November 8.
Switching now to the text messages. Counts [18]
to [25], they are also grouped in terms of the dates
of incident. Counts [18] to [22] are from November 6;
Counts [22] to [25] are from November 7. For each of
these text messages there are exhibits. Exhibits 5
through 9 are the text messages from November 6; and
Exhibits 10 to 12 are the text messages from November
7.
Ladies and gentlemen, you heard all the
evidence. You’ve seen the witnesses testify.
Defendant Orlando Pecpec is guilty of 25 counts of
Violation of an Order for Protection.
(Emphasis added).
Likewise, defense’s closing fairly indicated a one-to-
one relationship between the counts and the acts:
Okay. Now, let’s further review the testimony as
to each count.
[CW] admitted to you in court that she knows
that the Order for Protection allowed [Pecpec] to have
limited contact with her regarding attending courtroom
proceedings. You know what? For Count I, October
19th, 2009, at 10:03, that’s exactly what had
happened. [Pecpec] -- we know from (indiscernible)
also, too, that there was a hearing. We know that
[Pecpec] got to court late, at about 9:30. He
testified that he then called [CW] to ask about the
hearing. The time frame of the -- of the call and the
circumstances, that he was late, about the -- that he
-- about the time that the call was made, as [CW]
says, supports [Pecpec’s] testimony. And that’s what
[Pecpec’s] call was about and not as what [CW] would
have you to believe. You know that [CW] lacks
credibility because of the inconsistent --
inconsistencies in her testimony about the lack of
reporting on the October 19th, 2009, messages. I’ve
spoken about this just briefly before. But let me go
into detail.
This has to do with Counts [2], [3], and [4].
She testified, as I said before, touched on it
lightly. She says that -- she testified that the
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reason she did not make the recordings of messages
supposedly left by [Pecpec] on the morning of the 19th
-- October 19th, 2009, at 10:14, 10:24, and 10:26 were
because she had written down whatever the message said
on the statement she gave to police.
(Emphasis added).
And finally, in rebuttal closing, the State again
highlighted the one-to-one relationship between the counts and
the contacts:
Ladies and gentlemen, the Order for Protection
prohibits him, prohibits [Pecpec] from contacting
[CW], threatening her. State has shown beyond a
reasonable doubt that he did just that 25 times.
(Emphasis added).
Because the one-to-one relationship between counts and
acts was made clear to the jury, and the jury found Pecpec guilty
on 19 counts for which 19 exhibits were presented at trial, there
is no “‘genuine possibility’ that different jurors concluded that
[the defendant] committed different acts.”21 Cf. Mundon, 121
21
The dissent, relying on Arceo, suggests that it is “speculation”
to conclude that the jury unanimously found Pecpec had committed each of the
19 acts offered in support of the 19 counts. Dissenting opinion at 24.
However, as stated, Arceo is distinguishable from the instant case, because it
involved “separate and distinct culpable acts [] subsumed within a single
count,” and therefore a “genuine possibility” that the jurors may not have
unanimously agreed that the defendant committed the same act. 84 Hawai#i at
32-33, 928 P.2d at 874-75 (citation omitted). In contrast, in the instant
case, the State did not present evidence of multiple acts that could support
conviction under each count. To the contrary, the 19 counts on which Pecpec
was found guilty were supported at trial by 19 exhibits, with each exhibit
reflecting a single act. Accordingly, there is no reasonable possibility that
Pecpec was convicted on less than a unanimous verdict.
In addition, the ICA dissent opined that some of the jurors may
have relied on one act in order to find Pecpec guilty on more than one count.
Pecpec, 2011 WL 2037679, at *7. Put another way, the ICA dissent was
concerned that some jurors may not have been aware of the one-to-one
relationship between the counts and acts. However, because we conclude that
the one-to-one relationship would have been clear to a reasonable juror, we do
(continued...)
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Hawai#i at 354-55, 219 P.3d at 1141-42 (citation omitted); State
v. Valentine, 93 Hawai#i 199, 208, 998 P.2d 479, 488 (2000)
(holding that no specific unanimity instruction was necessary
because “there was no danger that the jury would be confused
regarding the conduct of which [the defendant] was accused and
that constituted the charged offense”). Accordingly, the family
court’s error in failing to give a unanimity instruction was
harmless beyond a reasonable doubt.
B. The family court abused its discretion in sentencing Pecpec
to a consecutive term on Count 13
Pecpec argues that the family court erred in sentencing
him to a consecutive term on Count 13 based on the act
represented in Exhibit 17 because the verdict on that count was
not unanimous. However, as discussed supra, the jury must have
unanimously concluded that Pecpec committed the act represented
in Exhibit 17 to have found him guilty on all 19 counts.
Nevertheless, Pecpec argues that the sentence was improper
because, “it was impossible to know which acts of 11/6/08
attached to which counts of the indictment [sic.]” Pecpec
contends that “the trial court should not be connecting exhibit
17 to count 13 ‘after conferring with counsel for both the
prosecution and the defense[.]’” (Quoting Pecpec, 2011 WL
2037679, at *5). We agree.
21
(...continued)
not find a genuine possibility for juror confusion in this respect.
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It is axiomatic that a criminal sentence is imposed in
relation to a specific offense upon which a defendant has been
found guilty. See HRS § 706-605 (Supp. 2006) (“Authorized
disposition of convicted defendants”) (emphasis added); HRS
§ 706-605 cmt. (“This section states the various sentencing
alternatives that are available to the court upon conviction of a
defendant for an offense.”) (emphasis added). However, in the
instant case, the record does not reflect that the jury
specifically correlated Exhibit 17 with Count 13. Accordingly,
the family court sentenced Pecpec based on conduct that was not
necessarily linked to Count 13 by the jury.
In addition, although the family court asked both
counsel which count of the complaint reflected the conduct in
Exhibit 17, defense counsel was unable to respond because he
“didn’t bring [his] complete file.” Accordingly, defense counsel
did not affirmatively correlate Exihibit 17 with Count 13.
Finally, we note that the complaint identified specific police
reports as relating to each count. Based on those police
reports, it appears that Exhibit 17, which CW testified was
received on November 6, 2011 at 1:28 p.m., would correspond to
Count 10, rather than Count 13.
In sum, the record does not support an inference that
the jury found Pecpec guilty on Count 13 based specifically on
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the conduct memorialized in Exhibit 17.22 Accordingly, the
family court abused its discretion in sentencing Pecpec to a
consecutive term on that basis.23
IV. Conclusion
For the foregoing reasons, we vacate Pecpec’s sentence
on Count 13 and remand for resentencing. We affirm the family
court’s judgment of conviction and sentence in all other respects.
Stuart N. Fujioka for /s/ Mark E. Recktenwald
petitioner/defendant-
appellant. /s/ Paula A. Nakayama
Keith M. Kaneshiro, /s/ Sabrina S. McKenna
Prosecuting Attorney,
and Donn Fudo, Deputy
Prosecuting Attorney,
for respondent/
plaintiff-appellee.
22
We respectfully disagree with the dissent’s assertion that we have
concluded “that the verdict on Count 13 ‘was not unanimous.’” Dissenting
opinion at 14. Our concern with regard to Count 13 is not based on a
purported lack of unanimity, and is limited to the court’s sentence, rather
than the jury’s verdict. As stated, we vacate the consecutive term sentence
on Count 13 because the record does not reflect that the jury specifically
correlated Exhibit 17 to Count 13. We note that a unanimity instruction would
not cure this defect, as it nonetheless would not be apparent which exhibit
the jury relied on in convicting on Count 13.
23
Based on our resolution of this issue, we do not address Pecpec’s
argument that the consecutive term sentence violated his rights to due
process, equal protection, and against cruel and unusual punishment under the
United States and Hawai#i constitutions.
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