“By Unlawful Means” and Jury Instructions

 

 

In State v. Purcell, 884 S.E.2d 181 (N.C. App. 2023) (Zachary, J.),[1] in a discussion about jury instructions, the North Carolina Court of Appeals explained:

 

Finally, Defendant maintains that the trial court erred in its conspiracy instruction because the “instruction allowed the jury to convict [Defendant] of conspiracy based on one of two different victims, in violation of the unanimity requirement” for jury verdicts. This argument is also inapt.

Our State Constitution provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court[.]” N.C. Const. art. I, § 24. “To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged.” State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). A “disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.” State v. Lyons, 330 N.C. 298, 302–03, 412 S.E.2d 308, 312 (1991). However, “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” Id. at 303, 412 S.E.2d at 312.

Here, the trial court’s instructions allowed the jury to find Defendant guilty of conspiracy to commit robbery with a dangerous weapon if it found that he conspired to rob either Mr. Locklear or Mr. Strong with a dangerous weapon. Because either of these alternative acts established the elements of a conspiracy—that is, “an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means[,]” Cox, 375 N.C. at 169, 846 S.E.2d at 485—the requirement of jury unanimity was satisfied, see Lyons, 330 N.C. at 303, 412 S.E.2d at 312. In that the jury was able to return a unanimous guilty verdict regarding “each and every essential element of the [conspiracy] charged[,]” Jordan, 305 N.C. at 279, 287 S.E.2d at 831, this argument is overruled.

 Id (bold added) (italics in the original). 

Judge Merchan’s jury instructions are not consistent with the Purcell standard. Judge Merchan has permitted the jury to convict based on a violation of N.Y. Election Law Section 17-152. See Judge Merchan, Jury Instructions at 43, <https://tinyurl.com/3c923hsb>. Conviction under Section 17-152 requires a predicate violation: a violation of other law, that is, so-called “unlawful means.” Merchan’s jury instructions state:

 

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

 

Judge Merchan, Jury Instructions at 44. It seems: Merchan’s jury instructions do exactly what the North Carolina appellate court forbade. Here, the disjunctive elements are themselves individual legal violations, and so, each such alleged violation separately requires unanimity. 

Does anyone know any positive law or case law, controlling or persuasive, supporting Merchan’s jury instructions? See generally U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977); State v. Edwards, 10 Conn. App. 503, 512–13 (Conn. App. 1987) (“The defendant claims that this situation required the court specifically to instruct the jurors that they had to agree unanimously on which, if either, of the acts was committed by the defendant. . . . Such a charge is required if (1) a jury is instructed that the commission of any one of several alternative actions would subject the defendant to criminal liability, (2) the actions are conceptually different and (3) the state has presented evidence on each of the alternatives.” (citing Gipson, supra) (footnote omitted) (bold and italics added).

 

Seth Barrett Tillman, ‘“By Unlawful Means” and Jury Instructions,’ New Reform Club (May 30, 2024, 6:02 AM), <https://reformclub.blogspot.com/2024/05/by-unlawful-means-and-jury-instructions.html>.

Glenn Reynolds, ‘SETH BARRETT TILLMAN: “By Unlawful Means” and Jury Instructions,’ Instapundit (May 30, 2024, 8:58 AM), <https://instapundit.com/650592/>. 

 

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[1] See N.C. R.A.P Rule 30(e)(3).