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Alternate means

You client is convicted of burglary:  trespassing in an occupied structure by "force, stealth, or deception" with the intent of committing a felony.  But what if six jurors decided the trespass was by force, three by stealth, and three by deception?  That's not a unanimous jury verdict.

Good luck with that argument.  Back in 2008, in State v. Gardner, the Ohio Supreme Court confronted that very scenario, and held that in an "alternate means" case - where the statute contains alternate means of committing the crime - jury unanimity is not required as to each specific method.

There's one catch with that:

Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.

That leads to a rare reversal of a death sentence in last week's Supreme Court decision in State v. Adams.  

There wasn't much question that Adams killed Gina Tenney, a 20-year-old college sophomore who lived in his apartment building.  There wasn't much question that he raped her, either; his DNA turned up in a semen sample found in Tenney.  Or that he kidnapped her, at least under the Ohio legislature's definition of that crime:  he restrained her liberty for purposes of raping her.  He'd robbed her, too; her television set was found in his apartment.

But here's the problem:  the death sentence was based upon the specification that Adams killed Tenney in the course of committing the crimes of aggravated robbery, rape, kidnapping, or aggravated burglary, and five members of the court agreed that there wasn't sufficient evidence of the aggravated burglary.  Go back to the emphasized portion of the Gardner quote, and that leads to this from Adams:

When an appellate court reviews the sufficiency of the evidence pursuant to R.C. 2929.05(A) as to the R.C. 2929.04(A)(7) aggravating circumstance in an aggravated-murder case in which more than one predicate offense is alleged but the jury has not made a finding as to which predicate offense was committed and determines that the state proved some but not all of the alleged alternative means that could establish the aggravating circumstance, the evidence is, as a matter of law, insufficient to support a death sentence and the death sentence must be vacated.

There's some logic to that; you don't want someone executed if some (or all) of the jurors' death sentence was based on legally insufficient evidence.  But there are some problems with it, too.

First, it is by no means a clear-cut argument.  The United States Supreme Court, in several cases, has held that a verdict in an alternate-means case can be upheld as long as there's sufficient evidence to support any of the means, and numerous other states have adopted that test as well.  In fact, the Adams majority doesn't even try to distinguish the SCOTUS cases, instead devoting about four pages of the opinion to explaining why those cases are "illogical." 

Second, as three justices note, if the evidence was insufficient to support the death sentence, it was also insufficient to support the aggravated murder conviction; the crime itself, as well as the death specification, requires proof that the killing was committed in the course of aggravated robbery, rape, kidnapping, or aggravated burglary.  The reasons cited by the majority for this is that Adams' lawyers never raised a claim that the evidence was insufficient; the court raised that as part of its "independent" review of the sentence.

The ramifications of Adams is very profound for Adams himself:  his case is remanded for resentencing, but the court holds that since insufficient evidence existed to support the death sentence, double jeopardy bars the State from seeking that on remand.  And Adams certainly clarifies how appellate courts (and lawyers) have to approach the "alternate means" cases:  if the evidence is insufficient as to any of the means, the whole case gets vacated.  And it doesn't go back for retrial; again, a finding that the evidence is insufficient means the Double Jeopardy Clause gives the defendant a get-out-of-jail-free card.  This might have been one of the reasons the court chose to deal with it solely on the penalty aspect.  One wonders what might have happened if Adams' attorney did raise the sufficiency argument; would the court have been willing to vacate Adams' aggravated murder conviction and preclude retrial on that count?

In any event, courts (and, again, attorneys) need to take a harder look at alternative means cases.  And I'd be willing to be that in the future, any aggravated murder trial will be accompanied by jury specifications asking them to find which particular means they agree one.  Keep in mind that the court came to the result in Adams because it was possible that several of the jurors found Adams guilty of only the aggravated burglary specification; if it was clear that jury unanimously agreed on at least one of the specifications, it doesn't matter what they agreed about on anything else.


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