June 15, 2003, 19:33
JimbeauxKitchens and enhancements
If the State alleges two habitual offender notices, is a unanimous verdict required for each (one) individually? Or can some think he did one prior and rest think he did another?
June 15, 2003, 22:21
Quiet ManThis is an interesting question, but I don't think the
Kitchens rule works for enhancements because there are not alternative manners and means of having a prior conviction. Two separate priors would be analogous to two separate crimes alleged in one indictment, a situation that requires a unanimous verdict on each.
June 16, 2003, 08:57
JimbeauxAnd after I posted, it occurred to me that a defendant probably has a right to a separate unanimous verdict on each plea that he makes. Two enhancement notices, two pleas, therefore two verdicts.
I guess.
June 16, 2003, 10:22
Martin PetersonPresumably you are referring to the situation where the state has three or more convictions available to prove that a defendant has been twice previously convicted of state jail felonies under sec. 12.42(a)(1) or two or more convictions for 3g offenses under sec. 12.35(c)(2) or two or more convictions available under sec. 12.42(a)(3), 12.42(b)(e), 12.42(c)(1). It would be my position that such multiple convictions are pleaded in the alternative to show a single fact, e.g., "that defendant has been once before convicted of a felony". See
Carter, 676 S.W.2d at 355 fn. 3;
Read, 955 S.W.2d 435. Hence, it would not be necessary for all jurors to agree on which conviction(s) satisfied the pleaded fact. But, the court should not submit an option not supported by sufficient evidence and if it did, you would run into a
Bagheri type problem. Furthermore,
Jimenez, 981 S.W.2d at 396 holds that you might have to prove all the convictions as alleged (i.e., that you do not get an alternative submission in the charge).
June 16, 2003, 11:19
JimbeauxKinda the same. This one has two separate habitual offender notices. But the defendant pled not true to each one separately. Then the prosecutor made the non-unanimity argument ("y'all don't gotta agree on which habitual notice is true" or some such thing). I don't see any way to argue that these are different manners of achieving the "status" of prior felon when we alleged that he was, in effect, guilty of having two separate "statuses", if you will.
(Not a giant deal -- the argument is harmless because the verdict form separated the habituals and they were both separately checked off by the jury.)