In my view, the Majority ignores Klinge's constitutional right to a unanimous verdict inasmuch as the two distinct mental state requirements described by HRS §§ 707-715(1) and 707-715(2) (1993) with respect to the results of conduct gave rise to two separate crimes. Indeed, the plain language and legislative history of HRS §§ 707-715(1) and 707-715(2) indicate that the legislature intended to create two separate crimes. By virtue of the statutory language, the requisite mental state under HRS §§ 707-715(1) and 707-715(2) is inextricably linked to two distinct results of the prohibited conduct that are statutorily described. Consequently, the prosecution must prove a defendant's requisite mental state not only with respect to the prohibited conduct, but also with respect to the statutorily described results of that conduct. In other words, to commit terroristic threatening, a defendant must act with either the intent or reckless disregard of terrorizing another person or the intent or reckless disregard of causing an evacuation. By adopting an amorphous federal due process test based on history and morality, the Majority effectively relieves the prosecution of its burden to establish Klinge's intent in committing the threatening conduct. Because the Majority escapes the unavoidable conclusion that HRS §§ 707-715(1) and 707-715(2) create two separate crimes, I respectfully dissent from section III.A. of the Majority opinion.
1. The Elements of An Offense
HRS § 702-205 (1993) defines the "elements of an offense" as:
such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction).
Arceo, 84 Hawai`i at 12, 928 P.2d at 855 (citing commentary on HRS § 702-205) (emphases added). In addition, despite the Majority's assertion that "juries need not agree on alternative means of establishing the mental state component possessed by the defendant," HRS § 701-114 requires proof beyond a reasonable doubt of each element of the offense, as well as of the requisite state of mind. State v. Wallace, 80 Hawai`i 382, 412, 910 P.2d 695, 725 (1996) (citing Holbron, 80 Hawai`i at 39, 904 P.2d at 924); see also In re Winship, 397 U.S. 358, 361 (1970) (citations omitted).
Moreover, HRS § 702-204 (1993) provides in relevant part that "a person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies with respect to each element of the offense." . . . . HRS § 702-207 (1993) provides that [when] the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears."
Wallace, 80 Hawai`i at 412, 910 P.2d at 725 (quoting Holbron, 80 Hawai`i at 39, 904 P.2d at 924) (some ellipsis points in original and some added) (brackets in original) (emphases added).
In light of the axiomatic principle that a crime consists of the prohibited conduct together with the requisite mental state, the Majority's assertion that "[t]he threatening conduct is what the law prohibits" is misguided. (1) Majority at 31. Instead, HRS § 707-715 prohibits threatening conduct that is done with the requisite intent.
Although the Majority concedes that HRS § 707-715 "describes two alternative . . . states of mind applicable to that conduct[,]" the Majority maintains that "[e]ither intent gives rise to the same conduct and, therefore, the same crime." Majority at 19 & 31. With this approach, I cannot agree. A review of the language of HRS §§ 707-715(1) and 707-715(2) reveals that the requisite mental states with respect to the distinct results described are so disparate as to give rise to separate crimes.
Under HRS § 707-715 (1993), a person commits the offense of terroristic threatening
if the person threatens, by word or conduct, to cause bodily injury to another person or serious damage to property of another or to commit a felony:
(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person; or
(2) With intent to cause, or in reckless disregard of the risk of causing evacuation of a building, place of assembly, or facility of public transportation.
(Emphases added.) Based upon the language of HRS §§ 707-715 and 707-716, the requisite state of mind with respect to the result of the prohibited conduct accompanying the offense of terroristic threatening in the first degree requires either: (1) under HRS § 707-715(1), intent to terrorize or reckless disregard of the risk of terrorizing another person; or (2) under HRS § 707-715(2), intent to cause or reckless disregard of the risk of causing the evacuation of a building. Therefore, HRS § 707-715 establishes separate and distinct means through which the prosecution can establish a defendant's requisite state of mind in committing the prohibited act.
To support a conviction based on HRS § 707-715(1), the prosecution must establish that the defendant had the intent to "terrorize" or recklessly disregarded the risk of terrorizing another person. Although the Hawai`i Penal Code (HPC) does not specifically define the term "terrorize," it is the verb form of the word "terror," which in turn is commonly understood as:
Alarm; fright; dread; the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger.
Black's Law Dictionary 1473 (6th ed. 1990). Therefore, under HRS § 707-715(1), a person commits the offense of terroristic threatening if he or she engages in the prohibited conduct (2) with the attendant requisite state of mind to terrorize another person.
On the other hand, to support a conviction based on HRS § 707-715(2), the prosecution must establish that the defendant committed the prohibited conduct and that he or she did so with the intent to cause, or in reckless disregard of the risk of causing, evacuation of a building, place of assembly, or facility of public transportation. An "evacuation" is commonly understood as "any organized withdrawal or removal of persons from a place or area[,] especially as a protective measure[.]" Webster's Third New International Dictionary 786 (1961). HRS § 707-715(2) does not require that another person be placed in fear or apprehension.
Although the requisite states of mind requirements under HRS § 707-715 are not mutually exclusive, there is no doubt that their foci are distinct. Compare HRS § 707-720(1)(b) (1993) (requiring that the defendant kidnap with the intent to "use that person as a shield or hostage") with HRS § 707-720(1)(e) (1993) (requiring that the defendant kidnap with the intent to "terrorize that person or a third person"). While HRS § 707-715(1) requires an intent to cause, or a reckless disregard of the risk of causing, terror in another person, HRS § 707-715(2) merely requires an intent to cause, or a reckless disregard of the risk of causing, an evacuation of an enumerated place, regardless of any perceived fear.
Indeed, the Majority concedes "that not all evacuees experience fear in response to a command to evacuate." (3) Majority at 29 n.7. Similarly, not all threats made with the intent or reckless disregard of causing an evacuation are made with the intent or reckless disregard of causing fear. Had the legislature intended to create a single offense as opposed to separate offenses, the legislature would not have enacted HRS § 707-715(2) as a separate subsection. Ironically, although the legislature must have realized that "the evacuation of a building in almost all situations involves fear on the part of at least some of the evacuees," the legislature created a separate subsection for defendants who did not possess the intent to terrorize another person but who possessed the intent to cause an evacuation. (4) Because we must presume that the legislature was aware that the two alternatives will, in many cases, be coextensive, we must read HRS § 707-715 to give effect to all parts of the statute, including the two statutory alternatives described by HRS §§ 707-715(1) and (2). See, e.g., In re Doe, 90 Hawai`i 246, 250, 978 P.2d 684, 688 (1999) (citations omitted) ("[C]ourts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.") Because the Majority ignores the legislative intent to create two separate offenses, the Majority's position renders HRS § 707-715(2) superfluous. Therefore, I am led to the inescapable conclusion that the legislature intended to create two separate crimes by promulgating a separate subsection for threats made with the intent or reckless disregard of causing an evacuation.
3. The Legislative History Reveals Two Separate and Distinct Concerns Underlying HRS §§ 707-715(1) and 707-715(2)
The Majority also acknowledges that the legislature had different reasons for enacting two separate provisions setting forth two separate mental states that are inextricably linked to the statutorily described results of conduct. Yet, the Majority ignores the distinct concerns associated with the enactment of the two distinct requisite mental states by reasoning that "[t]he threatening conduct is what the law prohibits." With this approach, I emphatically disagree. In my view, the legislative history of HRS § 707-715 compels the conclusion that the legislature intended to create two separate crimes by creating two distinct requisite mental states.
Undoubtedly, the legislature enacted HRS § 717-715 for two distinct reasons. First, HRS § 707-715(1) addresses conduct causing serious alarm for personal safety. See Commentary to HRS § 707-715. The legislature recognized this danger for two reasons.
(1) It is easily seen that people who are attempting to avoid what they believe to be a serious harm may often take action so precipitous as to harm themselves. Where the actual harm occurs, the threatener may be guilty of a more serious offense. But where the harm does not occur, this section permits conviction for the inchoate threat.
(2) The civil law has come to recognize the validity of psychological trauma; recovery may now be had for the intentional infliction of such injury even though the conduct of the offender had no physical connection with the victim. If such conduct constitutes a recognized substantial danger, it follows that a penal sanction may appropriately be imposed for conduct which intentionally or recklessly creates the danger.
Id. Based upon this language, the harm, i.e., the result of conduct, sought to be prevented by HRS § 707-715(1) is the psychological trauma of the victim of a terroristic threat. Therefore, under HRS § 707-715(1), the offense of terroristic threatening is "an offense against the individual of substantial magnitude and danger, even allowing for the lack of any actual harm." Id. (emphasis added).
In contrast, HRS § 707-715(2) addresses conduct disrupting public services or activities. See Commentary to HRS § 707-715. With regard to HRS § 707-715(2), the legislature intended to discourage activities that would result in the evacuation of a place or building by imposing penal sanctions. Id. In so doing, the legislature recognized "the magnitude of the inconvenience and attendant dangers involved in the disruption of public services." Id. (emphasis added). Therefore, unlike HRS § 707-715(1), which seeks to address a victim's psychological trauma that results from a threat intended to terrorize, HRS § 707-715(2) seeks to address the public inconvenience that results from an evacuation regardless of the reason for the threat.
Given the different purposes for which HRS §§ 707-715(1) and 707-715(2) were enacted, it is unmistakable that the legislature intended to address distinct concerns in enacting HRS §§ 707-715(1) and 707-715(2). A fortiori, HRS §§ 707-715(1) and 707-715(2) plainly describe distinct results of the prohibited conduct. Given the distinct concerns underlying HRS §§ 707-715(1) and 707-715(2), the legislature enacted HRS § 707-715(2) to prevent the disruption of public services and to address threats that involve public safety, such as what is commonly known as a "bomb threat." In contrast, given that the legislature enacted HRS § 707-715(1) to prohibit threats against individuals, HRS § 707-715(1) implicitly addresses threats that are more personal in nature, such as threats of harm directed towards individuals as opposed to the public.
Based upon a reading of the statutory language together with the legislative history, HRS §§ 707-715(1) and 707-715(2) prohibit the making of a threat with the intent to cause a specified result of the threat. In other words, HRS §§ 707-715(1) and 707-715(2) prohibit not only a certain course of conduct but also the intent to cause a certain result of the prohibited conduct. A mere threat that is made without the requisite mental state does not constitute a crime. By virtue of the statutory language, the requisite mental state for the offense of terroristic threatening is inextricably linked to two distinct results of the prohibited conduct. The prosecution must prove the requisite mental state not only with respect to the prohibited conduct, but also with respect to the defendant's intent to bring about the statutorily described results of that conduct. Because HRS §§ 707-715(1) and 707-715(2) inextricably links the requisite mental state with the intent to cause two distinct results, HRS §§ 707-715(1) and 707-715(2) create two distinct offenses. Accordingly, the mental states with respect to the result of the prohibited conduct under HRS §§ 707-715(1) and 707-715(2) give rise to separate and distinct criminal offenses.
The Majority relies on the axiomatic principles that "the offender need not cause a result" and that actual terrorization or an actual evacuation is not a material element of the offense. Majority at 20. The Majority, however, fails to note that the defendant must possess the requisite intent at the time he or she engages in threatening conduct. In other words, a defendant who intentionally, knowingly, or recklessly engages in threatening conduct without the intent to terrorize or to cause an evacuation cannot be guilty of the offense. The defendant must intend to bring about a result -- either to "terrorize" or to "cause evacuation." Because the statute connects the requisite mental state together with the intent to cause one of two distinct and separate results (i.e., to terrorize or to cause an evacuation), I can only conclude that HRS §§ 707-715(1) and 707-715(2) give rise to separate and distinct criminal offenses. (5)
B. The Right to a Unanimous Verdict as to Each Separate Criminal Offense and the Constitutional Mandate Requiring a Unanimous Verdict as to the Crime Committed
Given that HRS §§ 707-715(1) and 707-715(2) create two distinct criminal offenses upon which the jury can convict an accused of terroristic threatening, I fail to see why the jury instructions should not require the jury to agree on one of the alternative crimes. We have previously held that "the right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, sections 5 and 14 of the Hawai`i Constitution." Arceo, 84 Hawai`i at 30, 928 P.2d at 872 (citation omitted). Despite Klinge's constitutional right to a unanimous verdict with respect to the crime he committed, the Majority applies the analysis and reasoning of the plurality opinion of the United States Supreme Court in Schad v. Arizona, 501 U.S. 624 (1991). (6) However, Schad did not involve the issue of whether the jury must unanimously agree on the crime committed by a defendant.
Instead, Schad involved the single crime of murder with two alternative states of mind, i.e., premeditated murder and felony murder as first-degree murder. Schad was prosecuted and convicted in Arizona for first-degree murder, based upon premeditated murder and felony murder theories, and sentenced to death. Id. at 629. On appeal, the Arizona Supreme Court affirmed the conviction and rejected Schad's contention that the jury was required to agree on a single theory of first-degree murder. Id.
The United States Supreme Court granted certiorari and affirmed the conviction. Id. at 648. A plurality of the Court framed the issue as whether it was permissible under the due process clause of the fourteenth amendment to the United States Constitution for the State of Arizona to define both premeditated murder and felony murder as first-degree murder. Id. at 630-31. The Schad Court began with the general rule that decisions as to whether facts are material, and thus must be proved individually as essential elements, or immaterial, serving only as the means of satisfying an essential element, are decisions that are most appropriately left to the states. Id. at 636 (citing Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975)). The plurality then recognized that the Court did not have the authority to substitute its construction of a state statute for that of the Arizona Supreme Court and noted:
by determining that a general verdict as to first-degree murder is permissible under Arizona law, the Arizona Supreme Court has effectively decided that, under state law, premeditation and the commission of a felony are not independent elements of the crime, but rather mere means of satisfying a single mens rea element. The issue in this case therefore is not whether "the State must be held to its choice," . . . for the Arizona Supreme Court has authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime, but rather whether Arizona's choice is unconstitutional.
Id. at 637 (emphasis added). Nevertheless, the plurality recognized that there was a point beyond which a state cannot, consistent with the due process clause, relieve itself of the burden of proving certain facts. Id. at 636-37. According to the plurality, the appropriate test under the due process clause measures the state action against the due process requirement of fundamental fairness, as evidenced both by historical and current practice, and by a sense of culpability. Id. at 637.
In the Schad plurality's opinion, equating premeditation with the commission of a felony as mental states of comparable culpability for first-degree murder found "substantial historical and contemporary echoes." Id. at 640. On this basis, the plurality noted that Arizona's practice of equating the two means was presumptively likely to meet the criterion of fundamental fairness. Id. at 642 (citing Patterson v. New York, 432 U.S. 197, 202 (1977)).
Although the plurality was unwilling to establish a bright-line test for determining whether alternative means of satisfying a mens rea element are materially different, it noted that the alternative mental states had to "reasonably reflect notions of equivalent blameworthiness or culpability." Id. at 643. Using this standard, the plurality determined that, because robbery-murder and premeditated murder could be considered equivalently culpable, Arizona's practice satisfied the due process requirements. Id. at 644. However, the plurality conceded that, although greater jury specificity was probably a sound idea, "the Constitution did not command such a practice on the facts of this case." Id. at 645. (7)
Schad is inapposite to this case. The Schad plurality based its analysis on the Arizona Supreme Court's authoritative determination that "premeditation and the commission of a felony are not independent elements of . . . [first-degree murder], but rather are mere means of satisfying a single [requisite mental state]." Id. at 637. Given the Arizona Supreme Court's determination, the Schad plurality reasoned that the jury did not need to reach agreement between premeditation and the commission of a felony because it was merely a preliminary factual issue underlying the verdict (i.e., the same crime). In contrast, the issue in this case does not involve whether a state can constitutionally define both premeditated murder and felony murder as the same crime, but rather whether a jury must agree on whether a defendant committed the same crime.
As discussed, the statutorily described results of the prohibited conduct set forth by HRS §§ 707-715(1) and 707-715(2) are separate and distinct. In contrast, because the end result in Schad was the death of a person, the plurality recognized that it was confronted with the issue of "alternative mental states." In this case, we are not faced with the "alternative mental states" issue involving the same crime, but rather the issue of two separate crimes each with distinct statutorily described results of the prohibited conduct.
Indeed, the differences between the intent to cause terror in another person and the intent to cause an evacuation preclude the conclusion that the mental states in HRS §§ 707-715(1) and 707-715(2) are mere means of satisfying a single mental state requirement. In other words, inasmuch as HRS §§ 707-715(1) and 707-715(2) each describe a different result of the prohibited conduct, the mental state with respect to that result must be proved to have accompanied the prohibited conduct as an essential element. HRS § 702-207 ("[when] the definition of an offense specifies the state of mind sufficient for the commission of that offense, . . ., the specified state of mind shall apply to all elements of the offense[.]").
Given that the requisite mental states with respect to the result of the prohibited conduct created by HRS §§ 707-715(1) and 707-715(2) essentially result in two separate crimes, the issue in this case does not involve, as it did in Schad, "preliminary" facts that serve only as the means of satisfying an essential element. Instead, the issue in this case is whether a criminal defendant has been afforded the protection of article I, sections 5 and 14 of the Hawai`i Constitution, which guarantees a unanimous verdict in a criminal prosecution, where there is a possibility that a jury can return a guilty verdict on two separate crimes. Therefore, I find the analysis and reasoning of the plurality opinion in Schad simply inapplicable to this case. (8)
C. Election of Specific Mental State and the "Specific Unanimity" Instruction
The Majority's approach in this case is inconsistent with this court's decision in Arceo, supra, in which we recognized a criminal defendant's right to a unanimous verdict with respect to the prohibited conduct element of the charged offense. 84 Hawai`i at 14, 928 P.2d at 856 (quoting Wallace, 80 Hawai`i at 412, 910 P.2d at 725 (quoting Holbron, 80 Hawai`i at 39, 904 P.2d at 924); see also Richardson v. United States, 119 S.Ct. 1707, 1710 (1999) (noting that "crimes are made up of factual elements, which are ordinarily listed in the statute that defines the crime. . . . Calling a particular kind of fact an 'element' carries certain legal consequences. The consequence that matters for this case is that a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element" (citations omitted)); Andres v. United States, 333 U.S. 740, 748 (1948) (holding that "[i]n criminal cases[,] this requirement of unanimity extends to all issues . . . which are left to the jury"). Arceo was charged with one count of sexual assault in the third degree and one count of sexual assault in the first degree for acts occurring between August 16, 1989 and May 4, 1990. Arceo, 84 Hawai`i at 4-5, 928 P.2d at 846-47. The complaining witness alleged two specific acts of sexual contact and five specific acts of sexual penetration as the bases of the charges. Id. at 7-9, 928 P.2d at 849-51. Arceo was convicted of both counts and appealed. Id. at 10, 928 P.2d at 852.
This court vacated Arceo's convictions on the grounds 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.
In contrast to the present case, which involves the requisite state of mind with respect to the statutorily described results of the prohibited conduct, Arceo addressed a situation involving separate and distinct culpable acts subsumed within a single count. However, given that a criminal defendant is guaranteed a unanimous verdict as to each element of the crime, I see no reason why the principles discussed in Arceo should not apply to this case. As the Oregon Supreme Court observed:
There is no basis for distinguishing between jury agreement on the act required for criminal liability and on the mental element that makes the act culpable. The act and the culpable mental state are equally essential for any crime that requires a culpable mental state. Of course jurors cannot convict a defendant if they unanimously agree that he intended to kill a person but only half believe he did so. No more can they convict if they unanimously agree that a defendant's act caused a person's death but only half believe that he acted intentionally. The same is true if jurors agree that a defendant's act caused a person's death but do not agree that the defendant committed a felony, or vice versa.
Oregon v. Boots, 780 P.2d 725, 728 (Or. 1989) (en banc) (emphasis added) (citations omitted). (9)
As in Arceo, where the prosecution set out to obtain a conviction through separate and distinct culpable acts subsumed in a single count, the prosecution in this case set out to convict Klinge of terroristic threatening in the first degree by either of two different paths: (1) that Klinge intended to terrorize or recklessly disregarded the risk of terrorizing; or (2) that Klinge intended to cause or recklessly disregarded the risk of causing an evacuation. Therefore, I would hold that a criminal defendant's constitutional right to a unanimous verdict is violated where the requisite mental states with respect to the result of the prohibited conduct are so disparate as to constitute separate and distinct crimes, unless the circuit court either: (1) requires the prosecution, at the end of its case-in-chief, to elect the specific mental state with respect to the particular result of the prohibited conduct upon which it is relying; or (2) gives a specific unanimity instruction with regard to the defendant's requisite state of mind as to the result of the prohibited conduct.
Turning to the present case, the circuit court instructed the jury with regard to the offense of terroristic threatening in the first degree as follows:
A person commits the offense of terroristic threatening in the first degree, if with intent to terrorize, or in reckless disregard of the risk of terrorizing another person, and/or with intent to cause or in reckless disregard of the risk of causing the evacuation of a building, place of assembly, or facility of public transportation by threats made in a common scheme against different persons, he did threaten by word or conduct to cause bodily injury to another person or serious damage to the property of another.
There are five material elements of the offense of terroristic threatening in the first degree each of which the prosecution must prove beyond a reasonable doubt.
These five elements are:
1. That during or about the period of March 21, 1997, through April 7, 1997;
2. In the County of Maui, State of Hawaii;
3. [Defendant] . . .;
4. In a common scheme against different persons[;]
5. Threatened, by word or conduct, to cause bodily injury to another person or serious damage to property of another:
(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person [HRS 707-715(1)]; or
(2) With intent to cause, or in reckless disregard of the risk of causing evacuation of a building, place of assembly, or facility of public transportation [HRS 707-715(2)].
(Emphases added.) Based upon the language of this instruction, the circuit court gave the jury a choice between two separate and distinct crimes inasmuch as the requisite mental state element is inextricably linked to the two distinct statutorily described results of the prohibited conduct. Specifically, to convict Klinge, the jury would have had to agree either: (1) that Klinge acted with the intent to terrorize or recklessly disregarded the risk of terrorizing another person; or (2) that Klinge acted with the intent to cause or recklessly disregarded the risk of causing the evacuation of a building. (10)
Because the prosecution can rely on either statutorily described result of conduct to establish the mental element of the offense, HRS § 707-715 creates the possibility of "patchwork" jury agreement. In other words, because the jury was given the choice between two distinct results of conduct with respect to the mental state element, either of which could have resulted in a guilty verdict, it is unclear whether the jury in this case was in unanimous agreement as to which crime Klinge allegedly committed. Based upon the record in this case, it is impossible to determine whether the jury was in unanimous agreement regarding the crime Klinge allegedly committed. It is possible that six of the twelve jurors believed that Klinge committed the crime of threatening with the intent to terrorize or recklessly disregarded the risk of terrorizing another person, while the other six jurors believed that Klinge committed the crime of threatening with the intent to cause an evacuation or recklessly disregarded the risk of causing an evacuation.
The Majority asserts that "either intent results in the
same conduct and the same crime" because "[t]he threatening
conduct is what the law prohibits." (11)
I find this proposition
untenable. The prosecution must prove beyond a reasonable doubt
the requisite mental state not only with respect to the
prohibited conduct, but also with respect to the statutorily
described results of that conduct. In this regard, HRS §§ 707-715(1) and 707-715(2) describe distinct results of the prohibited
conduct with which the requisite state of mind component of the
crime is inextricably linked. Therefore, HRS §§ 707-715(1) and
707-715(2) describe two distinct offenses. In this case, to convict Klinge, the jury needed to
agree not only that Klinge committed a threat, but also that
Klinge committed the threat with the requisite intent. Because
the statute describes the requisite mental state with respect to
distinct results of conduct, HRS § 707-715 creates two separate
crimes: (1) a threat made with the intent or reckless disregard
of the risk to terrorize another person; and (2) a threat made
with the intent or reckless disregard to cause an evacuation.
The only common element between the two alternatives is a threat.
Although the two alternatives may, in some cases, share a common
prohibited act, it does not follow that they constitute the same
offense for purposes of article I, sections 5 and 14 of the
Hawai`i Constitution. Because the requisite mental state with
respect to the result of the prohibited conduct is an equally
important component of the crime, the two alternatives must share
in common the same elements (i.e., the same prohibited act and
mental state with respect to the result of the act) to constitute
a single crime. Given Klinge's constitutional right to a unanimous
verdict, I would hold that Klinge was entitled to know whether
the jury found that he committed the acts charged with either:
(1) the intent to terrorize or reckless disregard of the risk of
terrorizing another person; or (2) the intent to cause or
reckless disregard of the risk of causing an evacuation. Indeed,
as one commentator has noted: A patchwork jury will, of course, always agree on the legal conclusion that
the statute has been violated, and, if the patchwork verdict is arguably
proper, one will always find that the jury has also agreed on at least one
concrete historical fact relating to the crime. Thus the [prohibited
conduct] and corpus delicti requirements will be formally satisfied.
However, such minimal compliance does not satisfy the reasonable doubt
standard. The jury is valued not only as a community buffer between the
accused citizen and oppressive overzealous law enforcers, but also as a
guarantor that the stigma of conviction will not be attached except on clear
proof of specific conduct. Hayden J. Trubitt, Patchwork Verdicts, Different-Jurors Verdicts,
and American Jury Theory: Whether Verdicts Are Invalidated by
Juror Disagreement on Issues, 36 Okla. L. Rev. 473, 530-31
(1983). Because patchwork jury agreement does not guarantee a
criminal defendant's constitutional right to a unanimous verdict,
I believe that the circuit court erred in giving an instruction
that allowed a choice between what essentially were two separate
crimes. (12) For the reasons discussed above, I respectfully dissent
from section III.A. of the Majority opinion.
1. The Majority notes that "state of mind is not an 'element'
of a criminal offense." Majority at 17 n.3 (citing HRS § 702-205). As the above discussion illustrates, however, although
state of mind is not an "element" of an offense, HRS § 702-207
provides that when "the definition of an offense specifies the
state of mind sufficient for the commission of that
offense . . ., the specified state of mind shall apply to all
elements of the offense." I therefore emphatically disagree that
"Klinge's approach 'rests on the erroneous assumption that any
statutory alternatives are ipso facto independent elements
defining independent crimes . . . and [are] therefore subject to
the axiomatic principle that the prosecution must prove
independently every element of the crime.'" Majority at 24.
Although a defendant's requisite state of mind is not an actual
"element" of a crime pursuant to HRS § 702-205, HRS §§ 701-114
and 702-207 mandate that the prosecution prove the existence of
the specified state of mind with respect to each and every
element of the charged offense. Indeed, a mere threat that is
made without the intent or reckless disregard to terrorize or the
intent or reckless disregard to cause an evacuation cannot
constitute a crime.
2. The conduct prohibited required by HRS § 707-715
encompasses threatening, by word or conduct, to (1) cause bodily
injury to another person, (2) cause serious damage to property of
another, or (3) commit a felony.
3. Although the distinct mental states created by HRS §§ 707-715(1) and (2) are not mutually exclusive (i.e., a defendant may
simultaneously intend to terrorize a person and to cause an
evacuation), it does not follow that a defendant who intends to
cause an evacuation would necessarily intend to terrorize a
person, or vice versa. Indeed, a person evacuating an area may
have done so because he or she was ordered to do so and may not
even know the reason why he or she is being ordered to evacuate.
Therefore, I cannot agree with the prosecution's argument and the
Majority's suggestion that the mental state in HRS § 707-715(2)
(to cause an evacuation) is subsumed in HRS § 707-715(1) (to
terrorize another person).
4. Certainly, I see no other reason why the legislature would
divide the two alternatives into separate subsections. Indeed,
the Majority fails to address this issue.
5. In United States v. UCO Oil Co., 546 F.2d 833 (9th Cir.
1976), cert. denied, 430 U.S. 966 (1977), the United States Court
of Appeals for the Ninth Circuit considered the issue whether a
criminal statute describes a single offense or multiple offenses.
See also State v. James, 698 P.2d 1161, 1165 (Alaska 1985), and
United States v. Shorter, 608 F. Supp. 871, 877 (D.C. Cir. 1985)
(adopting the test in UCO Oil). In so doing, the Ninth Circuit
articulated the following four factors: (1) the language of the
statute; (2) the legislative history; (3) the nature of the
proscribed conduct; and (4) the appropriateness of multiple
punishment for the conduct charged in the indictment. In this
case, as discussed above, at least three of the four UCO Oil
factors (i.e., the statutory language, the legislative history,
and the nature of the misconduct) clearly indicate that HRS §§
707-715(1) and (2) describe two separate offenses. Without
explanation, however, the Majority refuses to apply the UCO Oil
test. Instead, the Majority adopts an amorphous test based upon
historical practice and the degree of moral blameworthiness and
culpability.
6. The Court's decision in Schad with respect to the issue of
a defendant's right to a unanimous verdict was split 4-1-4.
Justice Souter, joined by Chief Justice Rehnquist, and Justices
O'Connor and Kennedy, authored the plurality opinion. Justice
Scalia concurred in the plurality's result but used a
substantially different analysis than that used by the plurality.
Id. at 648-52. Justice White, joined by Justices Marshall,
Blackmun, and Stevens, dissented. Schad, 501 U.S. at 652-62.
Therefore, the Majority's adoption of the Schad test is an
adoption of a test approved by only four members of the United
States Supreme Court. In any event, the test set forth in Schad
is inapplicable inasmuch as the Schad Court did not consider the
question whether felony murder and premeditated murder are so
disparate as to constitute separate crimes.
7. In a dissenting opinion, four of the Justices expressed
disagreement with the plurality's framing of the issue. 501 U.S.
at 652. According to the dissent, the plurality mischaracterized
the constitutional issue by focusing on whether premeditated
murder and felony murder were permissibly alternative ways of
establishing first-degree murder. Id. at 653-54. The true
issue, the dissent argued, was whether it is permissible for a
jury to convict a defendant of one crime on alternative theories
"possessing no [essential] elements in common except the fact of
a murder." Id. at 654-55. Conviction on these alternative
theories, the dissent concluded, would allow an impermissible
mixing and matching of essential elements. Id. According to the
dissent, the plurality's holding would allow a defendant to be
convicted of first-degree murder by a jury in which six jurors
are convinced that the elements of felony murder have been
proved, and six are convinced that the elements of premeditated
murder have been proved. Id.
8. Notwithstanding that HRS §§ 707-715(1) and 707-715(2) set
forth two distinct criminal offenses, the Majority is content in
adopting the amorphous standard based upon "notions of equivalent
blameworthiness or culpability" and "history and wide practice as
guides to fundamental values" that was applied in Schad.
Majority at 23-24. The Majority fails to note, however, that the
plurality in Schad gave great deference to the Arizona Supreme
Court in defining the elements of a crime enacted by the Arizona
legislature. As the Schad plurality observed, It goes without saying that preventing and dealing with
crime is much more the business of the States than it
is of the Federal Government . . . and that we should
not lightly construe the [United States] Constitution
so as to intrude upon the administration of justice by
the individual States. Id. at 638 (quoting Patterson v. New York, 432 U.S. 197, 201
(1977)) (brackets added) (citation omitted). In contrast, we are under no duty to give deference in
interpreting the Hawai`i Constitution. See, e.g., Arceo, 84
Hawai`i at 11, 928 P.2d at 853 (citations omitted) (noting that
"we review questions of constitutional law 'by exercising our own
independent constitutional judgment'" (quoting Trainor, 83
Hawai`i at 255, 925 P.2d at 823, and Lee 83 Hawai`i at 273, 925
P.2d at 1097) (emphasis added)). Unlike Schad, which focused on
the limits of a state's power to define a crime, we are faced
with the issue whether a generic verdict that could have been
based on separate and distinct crimes violated Klinge's right to
a unanimous verdict as guaranteed under article I, sections 5 and
14 of the Hawai`i Constitution. As we have long recognized, this
court, "as the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawai`i
Constitution," is under no duty to accord deference to the United
States Supreme Court in matters calling for the interpretation of
the Hawai`i Constitution. See Arceo, 84 Hawai`i at 28, 928 P.2d
at 870 (citations omitted). Given these well settled principles, I fail to see how the
"analysis and reasoning" of Schad, which the dissent acknowledges
is not controlling, can be "particularly persuasive here,"
especially in light of the following: (1) the statute that was
examined in Schad is unlike our terroristic threatening statute;
and (2) even the Schad plurality conceded that greater jury
specificity was desirable, although, in the Schad plurality's
view, the federal constitution "did not command such a practice
on the facts" in light of a state's power to define a crime.
Majority at 23.
9. The Supreme Court of Washington has also rejected the
Schad rationale. In State v. Golladay, 470 P.2d 191 (Wash.
1970), the defendant was charged with first-degree murder
committed either with premeditation or in the course of a felony.
Id. at 193. The court first declared that the two "means of
committing the crime [were] but alternative constituents of the
same statutory offense; they [did] not constitute separate and
distinct offenses." Id. at 200. Nevertheless, the court held
that the jury instructions "must clearly distinguish the
alternative theories and require the necessity for a unanimous
verdict on either of the alternatives." Id. at 201. See also
State v. Murray, 782 P.2d 157 (Or. 1989). In any event, no court
has addressed the issue of whether the disparate mental state
elements give rise to separate crimes with respect to terroristic
threatening.
10. Although the circuit court gave to the jury a unanimity
instruction with regard to the prohibited conduct allegedly
committed by Klinge, the language of the instruction failed to
instruct the jury that all twelve jurors must unanimously agree
that the requisite mental state with respect to the same
statutorily described result had been proven beyond a reasonable
doubt. The unanimity instruction read as follows: "All 12
jurors must unanimously agree that the same underlying criminal
act or acts have been proven beyond a reasonable doubt." Because
the jury in this case was not instructed that it had to
unanimously agree on the requisite mental state with respect to
the same statutorily described result, we cannot assume that the
jury unanimously agreed on Klinge's mental state.
11. As discussed, HRS §§ 707-715(1) and (2) contemplate
different results of conduct and address different types of
threats (i.e., different types of prohibited conduct). Suppose,
for example, that a threat of personal harm is made to an
individual who is outdoors with no buildings, places of assembly,
or facilities of public transportation in the vicinity. In such
a case, it would be extremely difficult to infer that the person
making the threat intended to cause an evacuation. Yet, a
generic verdict under HRS § 707-715 that was based on
instructions with no unanimity instructions would, in effect, be
a conclusion that the person making the threat could have had
intended to cause an evacuation. In such a case, it would be
critical to know whether the person making the threat intended to
cause terror in another person or an evacuation because it would
be unlikely that a finding that the person intended to cause an
evacuation could be upheld in such a case. It is therefore
erroneous to assume that HRS §§ 707-715(1) and (2) address the
same prohibited results of conduct. 12. I do not suggest that "the jury . . . should have been
required to unanimously find one of each of the following
alternatives: "that Klinge threatened by 'word or conduct, to
cause bodily injury to another person or serious damage to
property of another or to commit a felony,' and that Klinge
performed the act 'with the intent to terrorize or in reckless
disregard of the risk of terrorizing,' or 'with intent to cause
or in reckless disregard of the risk of causing evacuation.'"
Majority at 29-30 (emphases in original). By focusing on the
mere presence of the word "or" in a statute, the Majority
misconstrues the dispositive issue in this case. It is
elementary that the mere presence of the word "or" in a statute
would not, in and of itself, implicate a criminal defendant's
right to a unanimous verdict. I merely suggest that a criminal
defendant's constitutional right to a unanimous verdict is
implicated where a statute describes separate and distinct crimes
inasmuch as the jury would need to unanimously agree as to which
crime was committed. Therefore, I would hold that a criminal
defendant's constitutional right to a unanimous verdict is
violated where the requisite mental state with respect to the
result of the prohibited conduct are so disparate as to
constitute separate and distinct crimes, unless the circuit court
either: (1) requires the prosecution, at the end of its case-in-chief, to elect the specific mental state with respect to the
particular result of the prohibited conduct upon which it is
relying; or (2) gives a specific unanimity instruction with
regard to the defendant's requisite state of mind as to the
result of the prohibited conduct.