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273.10 Juror Unanimity: Specific Offenses

    273.10.11 Jury Unanimity: Possession Offenses

    273.10.11.1 Jury Unanimity: Multiple Units Of Contraband
    273.10.11.2 Jury Unanimity: Multiple Acts Or Incidents Of Possession Of Illegal Drugs
    273.10.11.3 Jury Unanimity: Alternative Varieties Of Contraband
    273.10.11.4 Jury Unanimity: Firearm/Weapon Possession Offenses

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    273.10.11.1    Jury Unanimity: Multiple Units Of Contraband

PRACTICE NOTE: In possession offenses, a special unanimity instruction should be given when the possession is based upon two or more individual units of contraband reasonably distinguishable by separation in time and/or space.  (See People v. Castaneda (CA 1997) 55 CA4th 1067, 1070-71 [64 CR2d 395] [failure to give instruction prejudicial where conviction could have been based upon two separate possessions of heroin]; see also People v. King (CA 1991) 231 CA3d 493, 499-502 [282 CR 402]; People v. Crawford (CA 1982) 131 CA3d 591, 599 [182 CR 536]; Hill v. State (FL 1998) 712 So2d 463, 464 [double jeopardy precludes more than one conviction for possession, at the same time, of multiple firearms by a convicted felon; but see conflicting decisions cited in Hill].)

    See also FORECITE National™ 274.4 [Multiple Counts Or Offenses: Multiple Possessions].

OPINION AVAILABLE: Click here. [Opinion Bank # O-124].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    273.10.11.2    Jury Unanimity: Multiple Acts Or Incidents Of Possession Of Illegal Drugs

PRACTICE NOTE: Failure to give a unanimity instruction as to multiple incidents of narcotic possession may be reversible error. (See e.g., Davis v. U.S. (DC 1982) 448 A2d 242, 244; see also State v. Stempf (MN 2001) 627 NW2d 352, 357 [jury may consider different theories or means of committing a single act of possession (e.g., constructive or actual possession) but  may not consider alternative acts of possession charged in a single count]; State v. Brown (TN 1991) 823 SW2d 576, 583 [court erred by failing to adequately instruct jury as to its need to achieve unanimity as to what particular act constituted possession of cocaine]; State v. King (WA 1994) 878 P2d 466, 469 [lack of unanimity instruction was reversible error where evidence tended to show two distinct instances of possession occurring at different times].)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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 VOLUME 13 - CHAPTER 273

    273.10.11.3    Jury Unanimity: Alternative Varieties Of Contraband

PRACTICE NOTE: See People v. Wesley (CA 1986) 177 CA3d 397, 402 [223 CR 9] [failure to instruct jurors that all must agree unanimously as to whether the defendant possessed cocaine or heroin was reversible error]; see also State v. Owens (MD 1990) 579 A.2d 766, 768; Cunningham v. State (MD 1989) 567 A2d 126, 131; State v. Simpson (MD 1989) 567 A2d 132, 133 [for examples of when courts treat possession of mixed substances as a single, as opposed to a separate offense].

    See also FORECITE National™ 273.11.2 [Special Verdict Forms: Multiple Penalties].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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RATIONALE: When there is evidence that the defendant was in possession of two or more illegal weapons the possession of which was separated either in terms of time or space, the jury may need an explanatory instruction to understand the necessity of making a unanimous determination as to which possession constitutes the offense.

POINTS AND AUTHORITIES: Unanimity may be required as to simultaneous possession of multiple weapons. (See United States v. Theodoropoulos (3d Cir.1989) 866 F2d 587, 597; U.S. v. Correa (5th Cir. 1993) 6 F3d 1070, 1082-1083 [unanimity instruction is proper, but it is not constitutionally mandated]; People v. Crawford (CA 1982) 131 CA3d 591, 595-00 [182 CR536] [failure to specially instruct was reversible error]; Hill v. State (FL 1998) 712 So2d 463 [double jeopardy precludes more than one conviction for possession, at the same time, of multiple firearms by a convicted felon]; but see conflicting decisions cited in Hill].)

    For example, in U.S. v. Perez (9th Cir. 1993) 989 F2d 1111, 1115 the Ninth Circuit held that a special verdict should require jury unanimity as to which firearm, of several at defendant’s disposal, defendant actually used, in order to convict under a weapons violation statute. (See also U.S. v. Alerta (9th Cir. 1996) 96 F3d 1230, 1235-36.)

    Similarly, unanimity is required if there is evidence of possession on multiple occasions.  (See United States v. Garcia-Rivera (9th Cir. 2003) 353 F3d 788 [instructions violated the defendant’s right to a unanimous jury verdict because the jury could have concluded that it had to agree unanimously only that the possession occurred during any of three occasions, not that it had to agree unanimously on one of the three dates of possession].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 12.2].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

    The defendant is accused of having committed the crime of ________ [in Count __________].  The defendant may be found guilty if the prosecution has proved beyond a reasonable doubt that the defendant committed the charged crime based on one or more different acts of possession. However, to return a verdict of guilty [to Count ________], all jurors must agree that the defendant committed the same possession or possessions. 

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.01 [Verdict May Be Based On One Of A Number Of Unlawful Acts] (West, 6th Ed. 1996).]

    We, the jury, find defendant (name) __________________ (guilty/not guilty) of the of a firearm during and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ]. If you find defendant "guilty," you must answer the following:

    Which of the following firearms do you find were used by defendant?

    _____ A 9mm semi-automatic pistol.

    _____ An M-16 fully automatic rifle.

    _____ A short-barreled 12-gauge shotgun.

    (Check each firearm which the jury unanimously agrees defendant used.)

____________________________________
Foreperson

____________________
(Date)

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 11.03 [Sample Special Verdict Form (Interrogatories To Follow Finding Of Guilt)] (2000).]