State v. Voyles

McFarland, C.J.,

concurring: I have grave concerns about some of what is stated in the majority opinion as to how multiple acts cases are to be tried. I also have major problems with what is not said in the majority opinion. I will first discuss what I believe is wrong with what is stated in the opinion. The key holdings of the majority opinion relative to multiple acts cases are summarized in Syllabus ¶¶ 1-5, as follows:

Syllabus ¶ 1. “When a jury unanimity is at issue, the threshold question is whether an appellate court is presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review.”

Syllabus ¶ 2. ‘When jury unanimity is at issue in what has been determined to be a multiple acts case, the second question is whether error was committed. In a multiple acts case, either the State must inform the juiy which act to rely upon in its delib *261 erations or the court must instruct the jury to agree on the specific criminal act. The failure to elect or instruct is error.”

Syllabus ¶ 3. “When in a multiple acts case the State has not informed the jury which act to rely upon in its deliberations and the trial court has failed to instruct the jury to agree on a specific criminal act, the third question is whether that error warrants reversal. The formula previously enunciated in State v. Hill, 271 Kan. 929 , Syl. ¶ 3, 26 P.3d 1267 (2001), is abandoned. The ultimate general test for harmlessness when a unanimity instruction was not requested or given is “clearly erroneous” as articulated by the Kansas Legislature in K.S.A. 2006 Supp. 22-3414(3).”

Syllabus ¶ 4. “When a unanimity instruction was not requested or given and no general denial was presented by the defendant, an appellate court may conclude that the failure to instruct the jury to agree on a specific criminal act warrants reversal under the clearly erroneous standard.”

Syllabus ¶ 5. “When a unanimity instruction was not requested or given but the defendant has made a general denial, error may be reversible when the trial is not merely a credibility contest between the victim and the defendant, e.g., due to inconsistent testimony from the victim.”

Presumably, Syllabus ¶ 5 is intended to set out the majority’s holding, found on pages 16 and 17 of the opinion, as follows:

“The Court of Appeals accurately observed that Kansas appellate courts have held a ‘failure to instruct’ in multiple acts cases to be reversible error except when the defendant presents a unified defense, e.g., a general denial. If there is no unified defense, we do not tolerate verdict uncertainty in these cases. Stated in the language of the clearly erroneous standard of review applicable when no unanimity instruction has been requested, cases not containing a unified defense are reversed because the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given. [Citation omitted.]

“Here, however, we are not dealing with simply a unified defense — in one of its purest forms, a mere credibility contest between the victims and the alleged perpetrator. We have some discrepancies between the girls themselves, some *262 discrepancies between the girls and Miller, and some inconsistencies in C.C.’s statements.”

First, I have a problem with this language from Syllabus ¶ 5: “[E]rror may be reversible when the trial is not merely a credibility contest between the victim and the defendant, e.g., due to inconsistent testimony from the victim.” (Emphasis added.) The statement that a “credibility contest” case is somehow no longer a credibility contest if there are inconsistencies in the victim’s statements and testimony is simply illogical. A victim’s prior inconsistent statements and/or his or her contradictory testimony go to the victim’s credibility. The jury considers evidence of inconsistent statements in determining what weight should be afforded to the victim’s testimony — in other words, the credibility of the victim. So how can the existence of facts that a jury considers in determining credibility render a credibility contest not a credibility contest?

Second, what is meant by the terms “credibility contest” and “general denial” and how are they consistent with one another? Is a “general denial” limited to those cases in which the defendant rests solely on his or her not guilty plea? If the defendant has not provided any version of the events at issue through statements or testimony, choosing instead to put the State to its burden of proof by his or her not guilty plea, how is the case a “credibility contest?” The term “contest” implies that both sides are participating in a competition, i.e., the defendant has offered some version of the events to contradict the victim’s version. This, however, is inconsistent with the idea of a “general denial.”

Concerns with the language of Syllabus ¶ 5 aside, essentially, the court holds that the failure to give a unanimity instruction sua sponte may be reversible error even if the defense was a general denial, if there were inconsistencies in the State’s evidence concerning the various acts. According to the majority, the only “general denial” cases not subject to reversal are the pure “he-said, she-said” credibility contests with no inconsistent victim evidence. Such a holding fails to appreciate the reality that there will almost always be inconsistencies among statements given by victims to police, social workers, relatives and friends, at preliminary hearing, and at *263 trial. Thus, the practical effect of the ruling today is to render reversible all cases involving multiple acts in which the trial court failed to give a unanimity instruction sua sponte.

Additionally, there is no requirement that such inconsistencies must be significant. Particularly, in the area of sex crimes, there are going to be inconsistencies. This is even more true when the victims are young children. Insignificant inconsistencies should not be a basis of reversal.

Lastly, if a “pure” credibility case is one in which there are competing versions of events as told by the victim and the defendant, and inconsistencies in the victim’s version(s) may require reversal in the absence of a multiple acts instruction, how do inconsistencies in the defendant’s version of events factor into the question of clear error?

As Justice Carol A. Beier explained in her article, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275 (2005), in adopting the two-part harmless error test for the failure to give a multiple acts instruction, the court in State v. Hill, 271 Kan. 929 , 26 P.3d 1267 (2001), was seeking to avoid automatic reversal and develop “an analytical pattern to distinguish two subsets of multiple acts cases, those that truly required reversal because of a greater probability of lack of unanimity and those that did not.” Beier, 44 Washburn L.J. at 304. Justice Beier concluded, however, that “[ajlthough [Hill] successfully rejected structural error, it fell far short of its second goal.” 44 Washburn L.J. at 304.

The majority’s holding today also falls short of that goal. Although the opinion purports to distinguish between cases that truly require reversal and those that do not, in reality, there will be no cases in which the sua sponte failure to give a unanimity instruction will not be reversible error.

This brings me to the enormous problems created by what is not said in the majority opinion. There are no exceptions or restrictions in the new rules enunciated by the majority. Such omissions place an impossible burden on trial courts and prosecutors in the trial of cases where multiple indistinguishable acts of sexual abuse of young children are at the heart of the evidence.

*264 The problem was clearly enunciated in then Judge Beier s dissent in State v. Arculeo, 29 Kan. App. 2d 962, 974-75 , 36 P.3d 305 (2001), wherein she stated in part:

“The case at bar demonstrates the difficulty of requiring a specific election or jury agreement where the evidence shows repeated sexual abuse of a young child over a long period of time. M.M.’s description of the alleged abuse offered no distinguishing characteristics identifying any separate and distinct incidents of abuse. Rather, the abuse ‘resulted] in an amalgamation of the crimes in the child’s mind’; thus, ‘the child’s testimony [was] reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.’ People v. Luna, 204 Cal. App. 3d 726, 748 , 250 Cal. Rptr. 878 (1988).

“Arculeo’s due process right to a reasonable opportunity to defend against the charges was not violated. The sole issue was credibility. The generic nature of the evidence did not raise a question as to the sufficiency of that evidence. While the jury was not provided any evidence as to the frequency of the alleged crimes, e.g., once a month for 4 months, none was necessary because the appellant was charged with only one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child. Moreover, M.M. gave sufficiently specific evidence of the sexual acts. The jury could have reasonably concluded from M.M.’s testimony that his account could have come only from personal experience.

“Furthermore, Arculeo’s right to jury unanimity was not endangered. Although the evidence indicated that the incidents of sexual acts occurred more than the one time charged, the evidence in its entirety offered no possibility of jury disagreement regarding Arculeo’s commission of any of these acts. The only issue before the jury was the credibility of M.M.’s account of the repetitive sexual offenses alleged. By the jury’s rejection of Arculeo’s general denial, the appellant has his unanimous jury verdict.”

Justice Beier elaborated on the problem in Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas. She stated in part:

“ ‘A strict elect-or-instruct rule is inappropriate for the truly generic evidence child abuse case. Some exception is necessary to ensure that perpetrators of the most egregious violations upon the most vulnerable of our children are punished. Given the absence of a continuing offense covering child sexual abuse in our criminal code and the inability of the youngest and most traumatized children to recite specifics of tire circumstances surrounding the abuse they have suffered, the rule must be relaxed when credibility is the only genuine issue. It is simply impossible for the prosecutor to elect which among multiple indistinguishable acts •he or she relies upon for conviction, and it is likewise impossible for jurors to select one from a string of undifferentiated incidents to arrive at a verdict. Rigid adherence to the elect-or-instruct rule would disable or derail prosecution alto *265 gether, removing from the reach of the law those whose depredations were so frequent or so long-term or so aimed at the inarticulate that generic testimony is all that can be marshaled against them.’ ” Beier, 44 Washburn L.J. at 324 (quoting Arouleo, 29 Kan. App. 2d at 988 ).

I have concerns with Justice Beier s proposed solution, which she stated as follows:

“Second, for offenses that remain single-act crimes, the courts should adopt a second common law rule to make room for generic evidence cases. If one count is filed for more than one act, jurors would have to be instructed that, to convict on that count, they must unanimously agree the defendant committed all of the alleged acts or any one of them. I described this approach in my Arouleo concurrence, citing an Alabama case:

‘The Alabama court held that, because the statutory scheme at issue did not allow for charging of a continuing offense covering child sexual abuse, a situation Kansas faces as well, see [State v. Wellborn, 27 Kan. App. 2d 393, 395 (2000)], the strict elect-or-instruct rule must be modified:

“ When there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” ’ [R.L.G. Jr., v. State, 712 So. 2d 348, 361 (Ala. Crim. App. 1997)] (quoting People v. Jones, 51 Cal. 3d 294, 322 , 270 Ca. Rptr. 611, 792 P.2d 643 [1990]).” 44 Washburn L.J. at 323-24.

By way of illustration of the problem in such approach, let us assume a 4-year-old child testifies the defendant sexually abused her “lots and lots of times.” The child’s testimony speaks of multiple acts over a long period of time but provides no details from which specific incidents could be differentiated.

PIK Crim. 3d 68.09B states the following pattern instruction:

“The State claims distinct multiple acts which each could separately constitute the crime of__In order for the defendant to be found guilty of-, you must unanimously agree upon the same underlying act.”

How could that instruction be meaningfully modified to fit my hypothetical? How many times is lots and lots: 5? 10? 15? 20? more? What purpose would be served by instructing the jury it could convict the defendant if it found the defendant committed all the alleged acts or any one of them? Would the result of this new procedure be to pressure prosecutors to have the child victim *266 testify to some detail that would differentiate one act? If the child victim says she remembered one time when the defendant smelled bad, should the State be required to elect that the charged crime was the incident where the defendant smelled bad? How would such a requirement serve any legitimate purpose in the trial?

In the generic evidence cases with general denials, the “elect or instruct” requirement breaks down and no election or instruction should be required.

In summary, I have no major problem with the result reached in this case. As previously noted, I believe the majority’s holding as stated in Syllabus ¶ 5 and in the opinion is unduly restrictive and will have the effect of rendering reversible all cases involving multiple acts in which the trial court failed to give a unanimity instruction sua sponte. Additionally, exceptions have to be made for the generic evidence child abuse cases for the well-stated reasons set forth in Justice Beier’s Lurching toward the Light, previously cited herein.

Taking the attitude that the court can sort those problems out when appeals from those cases come before us is most inappropriate. The majority opinion will unnecessarily create massive problems. As prosecutors and trial judges struggle with how to try the generic multiple acts of sexual abuse of children cases under the new rules, errors will be made. Perpetrators of these heinous crimes may go free. The trial of cases involving the sexual abuse of children is an extremely traumatic event for the child victims and their families. A retrial months or years after the original trial can be disastrous for the children and their families trying to put the horror behind them and get on with their lives. I believe the majority opinion establishes bad law in what is said and not said, all as is previously discussed.

Davis and Luckert, JJ., join in the foregoing concurring opinion.