State v. Gardner recap
The defendant goes to a house, gets into an argument with the homeowner, breaks down the door, then assaults the homeowner, points a gun at him, and threatens to kill him. Those are the (substantially) stripped down facts in State v. Gardner, decided yesterday by the Supreme Court.
Here's the problem it addresses: to convict of aggravated burglary, the jury had to find that the defendant entered the house with the intent to commit some criminal offense. Since the judge gave the jury no instructions on what that "some criminal offense" was in this case, the jury was left to figure that out on its own. A guilty verdict could have resulted from four jurors concluding that the defendant had committed an assault (the beating), four others concluding that he'd committed a felonious assault (pointing the gun), and four others concluding that he'd committed menacing (the threat). What happened to the requirement that a jury verdict be unanimous?
That's not as big a problem as it might appear. As I pointed out when I previewed Gardner after the oral argument in January, the aggravated burglary statute also requires that the defendant enter the premises by "force, stealth, or deception," and no court has ever held that all jurors must agree on which of those three the defendant used. It certainly wasn't a problem for the Supreme Court, which reversed the 2nd District and reinstated the defendant's conviction. For a variety of reasons, though, the decision provides less guidance for attorneys and the lower courts than it otherwise might have.
One of the reasons for that is that there isn't a majority opinion: the court split 3-1-3 on the case, with Judge O'Donnell concurring in the judgment. Another reason is that there'd been no objection to the failure of the trial court to amplify its instructions on what offenses the defendant was actually accused of committing. Reviewing the question on a plain error analysis went a long way toward the ultimate result, as might be expected.
On top of that, both the journey and the destination in Gardner aren't as clear as one might have hoped. The opinion begins by drawing a distinction between elements and means: while the jury has to conclude that each element of the crime has been proven beyond a reasonable doubt, it doesn't have to necessarily agree on the means by which that element was committed.
There's ample precedent to support that, in Ohio, on the Federal level, and in many other jurisdictions, but the primary reliance was on Schad v. Arizona, a 1991 case in which the Supreme Court dealt with an Arizona statute which defined first-degree murder as a crime that could be committed either with premeditation or during the perpetration of certain other offenses. The Court concluded that although the statute posed the possibility that a defendant could be convicted of aggravated murder, even though the juror disagreed as to the exact means, this didn't pose a due process problem.
Had the court stopped there, it would have at least laid down a rule that had the virtue of precision. It didn't, though:
We do agree, however, that the state must prove the defendant's intent to commit a crime - "any criminal offense" - beyond a reasonable doubt. The breadth of the phrase "any criminal offense" is such that in some cases, it may invite a fatally "patchwork" verdict based on conceptually distinct groupings of crimes or on multiple acts. We believe that in such cases, due process requires that the jurors must be instructed as to the specific criminal act(s) that the defendant intended to commit inside the premises.
Then, having spent 22 pages explaining why judges didn't have to charge on the different criminal offenses that might underly a burglary prosecution, the court pivots 180 degrees:
We think that it is preferable for the trial judge to instruct the jury in all aggravated-burglary cases as to which criminal offense the defendant is alleged to have intended to commit once inside the premises and the elements of that offense. [My emphasis.]
So the judge should instruct the jury on not only the underlying offenses, but the elements of those offenses, right? Well, no;
We do not require this instruction in every case. Prudence may strongly suggest such a precaution, but we are not persuaded that it is appropriate in all ircumstances.
So when is it appropriate? Well, that's up to the trial judge.
My philosophy is that the major function of an appellate court is to lay down clear rules of law for the lower courts to follow. That can't always be done: a definitive statement of law which leaves no flexibility is no better than an ironclad sentencing provision which leaves no room for discretion. But if the appellate court does allow flexibility in the imposition of the rule it decrees, it should at least provide some guideposts for the exercise of that flexibility. Gardner's real failing is that it doesn't: it doesn't give a trial judge any clear idea of when he should charge the jury on the offenses that might constitute an aggravated burglary and when he shouldn't. Given this, and given the vote breakdown on the opinion, it's clear that Gardner isn't the last word on this subject.