State v. Franco

*830 Utter, J.

(dissenting) — I dissent. While the majority may apply this court's holding in State v. Arndt, 87 Wn.2d 374 , 553 P.2d 1328 (1976) correctly, I feel the foundation upon which Arndt stands is unsuitable. A different analytical structure is needed for determining whether a court should require a jury to unanimously agree upon the elements that compose at least one of the alternative means by which a criminal offense can be committed. Applying this analysis to the case before us, I would require a jury to agree unanimously on at least one of the alternative theories by which a violation of RCW 46.61.502 might occur.

I

The analytical structure set forth in Arndt provides a 4-part approach for determining whether, in the absence of express legislative intent, a criminal statute sets forth a single crime which can be committed by alternative means or a series of separate crimes. That approach is:

[I]n determining the question, there may be many factors that will aid the court, such as [1] the title of the act; [2] whether there is a readily perceivable connection between the various acts set forth; [3] whether the acts are consistent with and not repugnant to each other; [4] and whether the acts may inhere in the same transaction.

State v. Arndt, supra at 379 , quoting from State v. Kosanke, 23 Wn.2d 211, 213 , 160 P.2d 541 (1945). While this test may assist courts in distinguishing single from multiple offenses, it is not always helpful.

More fundamentally, since the Arndt test was devised to determine if a statute represents a single or multiple crime, it does not address all the concerns that are presented by the requirements of a unanimous verdict. The Arndt test derives from cases in which duplicity of a prosecutorial information was at issue. See, e.g., State v. Kosanke, 23 Wn.2d 211 , 160 P.2d 541 (1945); Arndt , at 388 (Brachtenbach, J., dissenting). These duplicity cases did not address *831 concerns for unanimity that continue to exist once a court has decided the statute presents a single crime capable of commission by alternative means.

II

Defendants in the state of Washington have a right to be convicted by a unanimous jury verdict. State v. Stephens, 93 Wn.2d 186 , 607 P.2d 304 (1980); State v. Badda, 63 Wn.2d 176 , 385 P.2d 859 (1963). We indicated in Stephens that the interest in a unanimous criminal verdict is constitutional in nature. That constitutional interest derives from the defendant's right to a jury trial under article 1, section 22 of the Washington State Constitution. While the constitutional nature of the unanimous verdict requirement has been recently questioned, see State v. Hall, 95 Wn.2d 536 , 627 P.2d 101 (1981), we need not resolve the issue for present purposes. 6 Whether constitutional or not, we have always required a unanimous jury verdict in criminal trials.

A second concern, closely related to the requirement of a unanimous verdict, is the prosecution's burden of proving the defendant guilty beyond a reasonable doubt. In In re Winship, 397 U.S. 358 , 25 L. Ed. 2d 368 , 90 S. Ct. 1068 (1970), the United States Supreme Court established the due process clause of the Fourteenth Amendment requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime with which an accused is charged. Id. at 364 ; State v. Hanton, 94 Wn.2d *832 129, 131-32 , 614 P.2d 1280 (1980) (Horowitz, J., dissenting). We in turn have stated, "In our legal system, the burden is always upon the prosecution to establish every element of the crime charged by proof beyond a reasonable doubt.” State v. Roberts, 88 Wn.2d 337, 340 , 562 P.2d 1259 (1977).

Where a unanimous verdict is required, as is the case in our state, the jury must unanimously agree that every element of the crime is established beyond a reasonable doubt for convictions to be valid. Where alternative means exist for the commission of a crime and those means articulate different elements that must be established beyond a reasonable doubt for a verdict of guilty to issue, it is illogical to state a jury can reach a unanimous verdict as to guilt yet fail to reach unanimity as to at least one of the means of commission. It is logically impossible for a jury to agree unanimously on guilt and at the same time fail to reach unanimity on at least one of the set of elements comprising a means to commission of the offense. Such a guilty verdict would be inherently faulty because it would fail to represent a jury's unanimous conclusion that the prosecution had established all the elements of the crime beyond a reasonable doubt, as is constitutionally required by In re Winship, supra. *833 (Footnote omitted.) United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir. 1977).

*832 Like the "reasonable doubt" standard, which was found to be an indispensable element in all criminal trials in In re Winship, 1970, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 , the unanimous jury requirement "impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue". 397 U.S. at 364 , 90 S.Ct. at 1072 , 25 L.Ed.2d at 375 . The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required.

*833 The Arndt test fails to accommodate the constitutional requirements of In re Winship, supra. The anomaly of our recent decision in State v. Green, 94 Wn.2d 216 , 616 P.2d 628 (1980) underscores the inadequacy of the Arndt test. Green was correct in result, yet a departure from the Arndt test.

Ill

Assuming a court can ascertain a statute provides alternative means to the commission of a single offense, it must then determine if unanimity as to the means of commission is required. To say a statute sets forth a single crime capable of commission by alternative means is not to say that the set of elements composing one theory of a means of commission is the same as a set of elements composing another means. The task before us is to establish criteria for distinguishing alternative means that require jury unanimity from those that do not.

First, the court must ascertain what elements are necessary for the commission of the offense: what factors (both mental and physical) must a jury unanimously find established for a constitutional verdict of guilt.

Concentration on the essential elements of a crime is a broader focus than that provided by the Arndt test, which addresses only "acts." That term is not broad enough to cover all the elements the prosecutor must prove beyond a reasonable doubt to establish a crime. Elements of a criminal offense may be both physical and mental; most often, they are both. When the element is a physical act, it is more apparent that unanimity is required. The jury must "be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged." United States v. Gipson, supra at 457-58. It is less obvious that what the defendant "did" includes both his acts and state of mind. For example, in the case of a murder prosecution, there is *834 often no question about what acts the defendant performed, but resolution of the defendant's state of mind will be dispositive of whether the defendant's acts were justified or the basis for the most severe punishment our criminal justice system provides. Without agreement on the litigable mental elements, the jury cannot arrive at a verdict of guilty of murder. See State v. Green, supra; State v. Golladay, 78 Wn.2d 121, 137 , 470 P.2d 191 (1970); People v. Embree, 68 Mich. App. 40 , 241 N.W.2d 753 (1976) (Holbrook, J., dissenting); People v. Olsson, 56 Mich. App. 500 , 224 N.W.2d 691 (1974); Jackson v. State, 92 Wis. 2d 1 , 284 N.W.2d 685 (Ct. App. 1979).

In identifying the necessary Winship elements, the court must look separately at each means and reduce each to the elements necessary to commission under that theory. In reducing each means to its essential Winship elements, the court must be careful not to generalize the elements of the crime to the fact of the crime itself, unless there is truly only one element of the crime and it is equivalent to the crime itself. See People v. Embree, supra at 43 (court considered the only element of crime of murder to be the fact of murder itself and concluded means to commission are only technical or "functionally" the same). If the only element of the crime were the crime itself, the means would always be "technical” and the "elements" analysis of Win-ship would be fruitless.

Once all the essential elements of each means have been identified, the court must determine whether the set of elements for each alternative means are the same: essentially, the court must determine if the alternative means are synonymous. This requires the court to look at the kind of prosecutorial evidence needed to establish the necessary elements of one means as opposed to those of another. If the evidence directed to proof of each means' necessary elements is always the same, the alternative means are synonymous. If not, the means involve distinguishable elements. When the means are distinguishable in this way, the jury must unanimously agree on at least one set of elements *835 that comprise a means of committing the offense.

IV

The statutory context within which this case arises fully tests this analysis.

I agree with the majority that the new statute sets out alternative means by which the offense of DWI can occur. One can say that all the means "measure the effect of alcohol and/or drugs on the individual," 7 Brief of Respondent, at page 23, but the statute sets out a single offense for which an offender can be punished once. All the means have at least two elements in common: (1) driving, and (2) in the state of Washington. All the means are not identical as to all their elements, however. Under section 1 of the statute the prosecutor must in addition prove beyond a reasonable doubt that the defendant's blood alcohol was at least 0.10 percent. Under sections 2 and 3 of the statute, the prosecution must in addition prove the defendant was "affected in some appreciable degree" by the use of alcohol or drugs or their combination. State v. Hurd, 5 Wn.2d 308 , 105 P.2d 59 (1940); State v. Hansen, 15 Wn. App. 95 , 546 P.2d 1242 (1976).

Section 2 of the statute refers to the use of alcohol or drugs; section 3 refers to their combined use. In determining what additional elements of sections 2 and 3 are essential to commission of DWI, I would state that additional element as: (3) the defendant was affected in some appreciable way by some drug. Alcohol, after all, is a drug. Sections 2 and 3 state only that the trier of fact may find a *836 person guilty of DWI if while driving within the state that person was affected appreciably by some drug. The prosecution need not independently establish it was alcohol, another drug, or their combination that caused that effect. 8

Having identified the essential elements of each of the alternative means by which a DWI conviction may be obtained, it is apparent the elements and proof for section 1 are different from those for sections 2 and 3. For example, in this case the prosecutor presented evidence of the Breathalyzer test and its validity to obtain conviction under section 1. Nothing else need be shown to establish section l's distinguishing element and a resulting DWI conviction. Under sections 2 and 3, however, the prosecutor presented different evidence to demonstrate some appreciable effect of alcohol or drugs or their combination. Evidence was presented concerning the defendant's driving ability, his difficulty in negotiating a left-hand turn, the smell of alcohol on his breath, and the speed at which he was driving.

Since the essential elements of section 1 are different from those of sections 2 and 3, the trial court should have required the jury to unanimously agree on at least one of the two alternative theories of committing the offense of DWI.

In conclusion, RCW 46.61.502 sets forth only one crime. Nonetheless, the difference in essential elements contained within each theory dictates a requirement of jury unanimity on at least one of those theories for a valid conviction.

Remand to the trial court should be uniformly required where the trial court has failed to instruct the jury that it must reach unanimity on at least one set of elements necessary to commission of the crime, unless such constitutional error can be termed harmless beyond a reasonable *837 doubt. Chapman v. California, 386 U.S. 18, 24 , 17 L. Ed. 2d 705 , 87 S. Ct. 824 , 24 A.L.R.3d 1065 (1967); State v. Stephens, 93 Wn.2d 186, 191 , 607 P.2d 304 (1980); State v. Badda, 63 Wn.2d 176 , 385 P.2d 859 (1963). Accordingly, the trial court's failure to so instruct in this case was reversible error.

V

While the approach proposed here gives the jury rigorous responsibilities, those responsibilities are no greater than what the constitution mandates. Fears that requirements of jury unanimity on at least one theory by which an offense may be committed will result in undue burdens on the criminal process and acquittals based on technicalities are unfounded.

The unanimity requirement would not increase the prosecution's burden. The prosecution will be forced only to establish each necessary element of a criminal offense to a unanimous jury. But this is a burden to which it is accustomed; Winship established this requirement some time ago.

The court, of course, will need to interpret the statute: first, to determine if it articulates a single or multiple offense; second, to identify the offense's essential Winship elements; and third, to decide whether alternative means to commission of the offense contain the same or different elements. The court has always been required to follow the first two steps, and the third, while additional, is both important to the court's understanding of the statute and essential to ensuring Winship's constitutional mandate is not undermined.

The jury will be forced to "sift through the proofs and reconcile their various perceptions of what facts the prosecution has proved." Note, Constitutional Law — Criminal Procedure — Jury Instructions and the Unanimous Jury Verdict, 1978 Wis. L. Rev. 339 , 349. While prosecutorial proofs may be similar and overlapping, this will not lead to the risk of acquittal based on jury indecision on a "techni *838 cal" matter. The approach proposed here does not require a jury to reach unanimity on only one means of commission; it requires jury unanimity on at least one means of commission. Where means are similar and one prosecutorial set of proof may establish both, juries are free to unanimously agree that the offense has been committed by more than one of the prosecutor's theories. 9

If the jury fails to reach unanimity on the necessary elements of an offense, our system requires acquittal. The test requires no more of jurors and the constitution requires no less.

Brachtenbach, C.J., concurs with Utter, J.

Reconsideration denied March 2, 1982.

The court's questioning of the constitutional nature of this interest in State v. Hall, 95 Wn.2d 536 , 627 P.2d 101 (1981) seems unfounded, especially in the context of a felony charge. There is no reason for us to hesitate to state explicitly that the interest in a unanimous verdict is constitutionally grounded. The United States Supreme Court has long held the unanimity requirement is inherent in the Sixth Amendment right to trial by jury for federal criminal defendants. See Johnson v. Louisiana, 406 U.S. 356, 369-71 , 32 L. Ed. 2d 152 , 92 S. Ct. 1620 (1972); Hawaii v. Mankichi, 190 U.S. 197, 211-12 , 47 L. Ed. 1016 , 23 S. Ct. 787 (1903). Furthermore, the unanimity requirement helps effectuate the closely related reasonable doubt standard made constitutional in In re Winship, 397 U.S. 358 , 25 L. Ed. 2d 368 , 90 S. Ct. 1068 (1970), indicating its constitutional dimensions. See Johnson, supra at 362 ; United States v. Gipson, 553 F.2d 453 , 457 n.7 (5th Cir. 1977). See discussion in text, section II.

The statute at issue underscores the importance of avoiding reduction of the elements of the crime to the crime itself. See discussion in text at section III. One could say, for instance, that the only element of this crime is driving in the state of Washington while under the influence of intoxicating liquor or drugs, the crime itself. This generalization would he easy considering the parallel language of the offense, "under the influence", and of sections 2 and 3 of the statute, "under the influence of or affected". But the language of the offense is a legal conclusion and that of the means is a finding of fact derived from evidence that the defendant was appreciably affected by some drug. Even where the language is the same, it is important to distinguish the crime from its elements.

It would be unreasonable to impute to the legislature a desire that a jury unanimously decide whether a particular drug or a combination of drugs affected appreciably the defendant's driving ability. A jury might sincerely differ on whether it was alcohol, another drug or their combination, but such differences are only technical and all satisfy the additional Winship element of sections 2 and 3, "the defendant was affected in some appreciable way by some drug."

For example, the prosecution might bring alternative theories of murder by premeditation and felony-murder in the commission of a robbery, which are theories with different Winship mental elements. The robbery may very well be part of the premeditated design to kill, so the evidence the prosecution will present to prove premeditation will include the intent to rob; such evidence may very well establish guilt via both theories. Nonetheless, unanimity with respect to at least one of the theories by which the crime may be committed remains the minimum constitutional requirement for conviction.