On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by O'Hern, J. Chief Justice Wilentz and Justices Handler, Garibaldi, and Stein join in Justice O'Hern's opinion. Justice Pollock has filed a separate dissenting opinion in which Justice Clifford joins.
Defendant contends that her conviction of official misconduct as a teacher should be reversed because the trial court's instructions did not ensure a unanimous jury verdict. She argues that because the indictment charged multiple instances of misconduct and the jury did not convict her of each of the specifically-charged acts of sexual assault and endangerment, the jurors may have reached a compromise verdict on the official-misconduct count, with some believing that she had committed certain of the acts charged and some believing that she had committed others of the acts charged, but none unanimously agreeing on the specific acts committed. Defendant also questions whether the actions attributed to her qualify as official misconduct.
We disagree with her contentions and affirm the conviction. We believe that the jury instructions adequately conveyed to the jury the requirement that it must unanimously agree beyond a reasonable doubt that defendant had engaged in specific conduct that violated the official-misconduct statute. We also believe that her actions could constitute official misconduct.
For the specifics of this case, we draw on the facts stated in defendant's brief to the Appellate Division.
On February 19, 1986, two school administrators entered and searched defendant's classroom at the Robert Fulton School in North Bergen. Defendant taught a class of perceptually-impaired children ranging in age from ten to twelve years. The administrators decided to search defendant's classroom in response to a parental complaint they had received about her. In the course of their search, the administrators discovered in defendant's closet a bottle of rum and an envelope containing sexually-explicit magazines. After the search and discovery, the administrators suspended defendant from teaching and conducted interviews with the students in her class.
Either in those interviews, before the grand jury, or at trial, various students testified that defendant had touched them or others in their "private parts." In addition, several of the young witnesses testified that defendant had shown them the sexually-explicit magazines that had been found in the classroom. They said that defendant would have them "draw on or cut out the private parts of people in the magazine, and sometimes make cutouts herself, to be pasted in a book." One student stated that defendant had brought the bottle of rum into the classroom and that students had tasted it while defendant was out. Various students testified that defendant had told them about her "wacky" friend who was a "lesbian"; another said that she had told them that she wanted to "sleep with" a school administrator. One student testified that defendant
had said that she wanted to marry and "do bad things" with the school administrator; another stated that defendant had said that she was "going out" with the administrator and wanted to marry two other male teachers; and yet another student could remember defendant saying only that she "liked" the administrator but added that defendant had told the class that "the gym teacher was a lesbian" and that "the art teacher was taking drugs." Others described bizarre disciplinary methods that included "being put in a box" and writing words and phrases one hundred times.
A grand jury indicted defendant, charging her with eleven counts of criminal conduct. It charged her with four counts of sexual assault through committing acts of sexual contact on individual students, one count of attempted sexual assault on another student, five counts of endangering the welfare of children, and one count of official misconduct, contrary to the provisions of N.J.S.A. 2C:30-2a, in that she had engaged "in a continuing course of conduct which sexually abused, humiliated and otherwise endangered the welfare of children while [she] had a legal duty to care for the children and had assumed responsibility for their care."
At trial, some students admitted that they had fabricated parts of the stories. One admitted that he had brought the bottle of rum into the classroom. Others testified that a student had brought in the magazines; others said that defendant had found the magazines on the floor. Some admitted testifying falsely before the grand jury about having witnessed sexual contact or otherwise having told the grand jury untrue stories. All in all, when the witnesses were subjected to cross-examination in the courtroom, they wavered in many specifics.
The jury convicted defendant of official misconduct but acquitted her of three counts of sexual assault. On the remaining counts, the jury was unable to reach a verdict.
The Appellate Division affirmed the conviction, but one member of the panel dissented, finding that the trial court's failure
to give the jury specific instructions that they all had to agree on the particular act that constituted official misconduct violated defendant's right to a unanimous jury verdict. Defendant appealed to us as of right. R. 2:2-1(a). We also granted defendant's petition for certification on the issue of whether the acts of wrongdoing alleged by the State in defendant's indictment constituted official misconduct under N.J.S.A. 2C:30-2a. 122 N.J. 381 (1990).
Like the "reasonable doubt" standard that was found to be an indispensable element at all criminal trials in In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375 (1970), "the unanimous jury requirement 'impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.'" United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977) (quoting In re Winship, supra, 397 U.S. at 364, 25 L. Ed. 2d at 375). Our Constitution presupposes a requirement of a unanimous jury verdict in criminal cases. N.J. Const. art. I, para. 9. Our Rules require that the "verdict shall be unanimous in all criminal actions." R. 1:8-9. Although the requirement of unanimity is self-evident, the meaning of the expression "facts in issue" is not as clear. See Schad v. Arizona, 59 U.S.L.W. 4762, 4764 (U.S. June 18, 1991) ("Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 108 L. Ed. 2d 369, 385 (1990) (Blackmun, J., concurring))). For example, the court in United States v. Peterson, 768 F.2d 64 (2d Cir.), cert. denied, 474 U.S. 923, 88 L. Ed. 2d 264 (1985), found that a jury does not have to agree unanimously on whether an actor's criminal role is that of a principal or an accomplice. See also United States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990) ("The jury found Horton guilty of one crime -- first degree murder. The fact that the jurors may have
taken different routes [viewing Horton as accomplice or as principal] to this conclusion provides no grounds to reverse."), cert. denied, U.S.L.W. (U.S. June 24, 1991) (No. 90-7539). State jurisdictions have reached the same conclusion: in a case involving possible accessory liability, the jury should be regarded as unanimous even if some jurors believe that the defendant was an aider or an abettor, while other jurors believe that the defendant was a principal. See, e.g., State v. Smith, 212 Conn. 593, 563 A.2d 671 (1989). In those cases each juror has found the defendant guilty of the substantive crime whether it be as a principal or as an accessory. Although all jurors may not find the same facts, the facts that they find are not "conceptually distinct." See State v. Johnson, 46 Ohio. St. 3d 96, , 545 N.E.2d 636, 645 (1989) (where "the alternatives presented to the jury and charged in the specifications were not conceptually distinct * * * a 'patchwork' or less than unanimous verdict was not possible"), cert. denied, U.S. , 108 L. Ed. 2d 639 (1990).
Another example of non-unanimity on facts arises in cases involving continuing courses of criminal conduct. In the case of sexual misconduct, young children are often unable to testify with respect to any specific date on which sexual contact had occurred. Rather, they will describe such events as having occurred over a period of time. Yet, as the court held in State v. Altgilbers, 109 N.M. 453, 786 P.2d 680 (Ct. App. 1989), if the evidence could convince a reasonable person beyond a reasonable doubt that the defendant committed the charged offense during the span of time, "no juror need have a precise day in his or her own mind in order to vote for conviction." Id. at , 786 P.2d at 698; see also Note, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson, 91 Harv. L. Rev. 499, 502 (1977) ("only common sense and intuition can define the specificity with which the jury must describe the defendant's conduct before it may convict").
Some jurisdictions are of the view that unanimity is not required when a statute states a single offense but provides for
various modes of commission of the offense. For example, Maryland's consolidated theft statute, which groups the various aspects of stealing goods and of receiving stolen goods into a single offense, does not require jury unanimity on which specific aspect of the offense occurred. Rice v. State, 311 Md. 116, 532 A.2d 1357 (1987); see also United States v. MMR Corp. (LA), 907 F.2d 489 (5th Cir. 1990) (because indictment charged defendants with joining conspiracy involving only one bid-rigging agreement, government did not have to prove precise obligations of each conspirator under the agreement, e.g., high bid or no bid, but only that defendants did agree to join in the conspiracy; thus, general unanimity instruction was sufficient), cert. denied, U.S. , 113 L. Ed. 2d 445 (1991); United States v. UCO Oil Co., 546 F.2d 833 (9th Cir. 1976) (jury unanimity on specifics not required in conviction for making false statements and concealing material fact by trick, scheme, or device in relation to gasoline service-station business), cert. denied, 430 U.S. 966, 52 L. Ed. 2d 357 (1977). See generally Annotation, Requirement of Jury Unanimity as to Mode of Committing Crime under Statute Setting Forth the Various Modes by which Offense May Be Committed, 75 A.L.R.4th 91 (1990).
In some circumstances, however, a general charge on jury unanimity will not suffice. That is so when, for example, "a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and [when] the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory." People v. Melendez, 224 Cal. App. 3d 1420, 1433-34, 274 Cal. Rptr. 599, 608 (1990). The leading case for that proposition is United States v. Gipson, supra, 553 F.2d 453. There, the government presented a case of improper disposal of automobiles based on what the appeals court viewed as "two distinct conceptual groupings," the housing and the marketing of stolen vehicles. Id. at 458. Reasoning
that some jurors might have concluded that Gipson had committed acts in the first grouping while others concluded that he had committed acts in the second grouping, the court held that the possibility of "significant disagreement among the jurors as to what he did" barred his conviction. Id. at 458-59; see also United States v. Payseno, 782 F.2d 832, 836 (9th Cir. 1986) ("'[When] there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice.'" (quoting United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983))). Obviously, use of the expression "distinct conceptual groupings" is more of a conclusion than a predicate to decision. Schad v. Arizona, supra, 59 U.S.L.W. at 4765. In Gipson, as in many such cases, there was a tangible indication of jury confusion: the jury requested additional instructions on the issue, but the trial court instructed the jury that it need not be unanimous on the basis for guilt. Thus, the circumstances in which a general charge on jury unanimity will not suffice may include
where the facts are exceptionally complex, see Payseno, 782 F.2d at 836-37, or where the allegations in a single count are either contradictory or only marginally related to one another, id., or where there is a variance between the indictment and the proof at trial, United States v. Echeverry, 698 F.2d 375, 377, modified, 719 F.2d 974 (9th Cir. 1983), United States v. Mastelotto, 717 F.2d 1238, 1250 (9th Cir. 1983), or where there is a tangible indication of jury ...