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State v. Lotches12/29/2000
eteness of counsel's arguments concerning that evidence is a substitute for the sufficiency of the instructions. As is usually the case, the trial court cautioned the jury that what the lawyers argue is not evidence and that it is the court's function to instruct the jury as to the law."
In the present case as well, the prosecutor's arguments were not a legally sufficient substitute for necessary jury instructions. The state's principal argument is that the present case is distinguishable fromBoots. The state acknowledges thatBootsrequires jury unanimity on all material facts. It argues, however, that the names of the victims or the other details of the underlying felonies in the aggravated murder charges in the present case are not material facts and, therefore, need not be identified to the jury. The state contends that
"this is not a situation where there was any possibility that any of the jurors could have found that defendant by different acts in a different location at a different time committed an attempted robbery and kidnapping and then murdered Hall in relation to those crimes. The facts establish only asingleattempted robbery and attempted kidnapping that occurred at a discrete time and place by a single series of acts. The same is true for the attempted murder, particularly given the jury's acquittal of defendant on the second charge [that defendant attempted to murder Riley]."
Implicit in the state's argument is the notion that, if thereisa possibility of jury confusion, the identity of the victim or the circumstances of the underlying felonyisinformation that is material and for which jury unanimity is required. The state merely assumes that it proved adequately the underlying felonies and that there was no way that the jury could have been confused as to what was being referred to as the underlying felony in each count. As our discussion ofBootsindicates, we agree with the state's premise. As the discussion that follows will explain, however, we disagree with the state's assertion that no juror confusion was likely.
We turn to an examination of each of the three aggravated murder counts, to determine whether there was a substantial likelihood of jury confusion as to the underlying felony that was applicable to each count. The first aggravated murder count was based on defendant's intentional murder of Hall in connection with his attempt to commit the crime of first- degree robbery. The state argues that the underlying felony charged in this count refers to the robbery that occurred when defendant tried to force Keaton to drive him away from the scene, immediately before killing Hall. That robbery was not charged separately. However, as noted, defendantwascharged with (and convicted of) robbery based on his hijacking of the pickup truck immediately after he killed Hall. In the absence of instructions clarifying the circumstances of the particular robbery referred to, it is impossible to determine whether, in convicting defendant on the first count, the individual jurors believed that defendant committed robbery with respect to Keaton or with respect to the pickup truck.
The second aggravated murder count was based on the intentional murder of Hall in connection with the crime of attempted kidnaping. As to that felony charge, both Keaton and her grandson were possible victims. The kidnaping also was not charged separately. Again, in the absence of explicit jury instructions, jury unanimity on a particular attempted kidnaping victim was not ensured.
Finally, the third aggravated murder count was based on the intentional killing of Hall to conceal defendant's identity as the perpetrator of attempted murder. As noted, defendant was
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