Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Judge ALLARD.
Mary E. Hicks was convicted of felony driving under the influence.1 At Hicks's trial, the State presented evidence that Hicks committed this offense twice on the same evening: first when she drove her husband's truck to a friend's house, and then, again, when she later left her friend's house and restarted the truck.2 In the closing argument, the prosecutor told the jury that it could find Hicks guilty based on either of these two distinct incidents. The jury was never instructed that it had to be unanimous as to the incident (or incidents) for which it was convicting Hicks.3
In our first decision in Hicks's appeal, we held that the superior court's failure to give a factual unanimity instruction in these circumstances was obvious error.4 But we nevertheless held that Hicks had not established plain error — because she had not shown that her trial attorney did not make a tactical decision to forgo a jury unanimity instruction.5 (Although no tactical reason for forgoing a jury unanimity instruction was plainly obvious from the record, the State advanced several possible tactical reasons, and Hicks failed to rebut them).
In Moreno v. State, the Alaska Supreme Court reversed our decision in Hicks and remanded this case to our Court for further consideration.6 The supreme court identified two errors in our analysis of Hicks's case: (1) we erroneously placed the burden on Hicks to show that her trial attorney's failure to object was not the result of a tactical decision; and (2) we erroneously applied a presumption that Hicks's attorney had a tactical reason to not object.7 The supreme court explained that a trial attorney's tactical decision not to object, or intelligent waiver of an opportunity to object, should not be presumed from a silent or ambiguous record, but instead "must be plainly obvious from the record."8
After the supreme court remanded Hicks to this Court, we asked the parties to submit supplemental briefing on the question of whether the superior court committed plain error by failing to instruct Hicks's jury on the need for factual unanimity in its verdict. In response to our order, Hicks filed a supplemental brief. The State did not.
In her supplemental brief, Hicks argues that the superior court's failure to provide a jury unanimity instruction was plain error. For the reasons explained below, we agree.
Under the Alaska Supreme Court's decisions in Moreno and Adams v. State,9 a party claiming plain error must establish: (1) that an error was committed that would have been obvious to any competent judge or lawyer, (2) that the record does not obviously demonstrate that the party's lawyer made a tactical decision not to object to the error, (3) that the error involved the substantial rights of the party, and (4) that the party was in fact prejudiced by this error.10
In our first decision in this case, we held that the superior court's failure to give a jury unanimity instruction was obvious error.11 We also implicitly found, and the supreme court later explicitly found, that the record of Hicks's case did not plainly reveal that Hicks's attorney had an obvious tactical reason for failing to object.12 Moreover, under the Alaska Constitution a defendant has a right to a unanimous jury verdict; the denial of that right therefore affected Hicks's substantial rights.13
The only remaining question under Adams and Moreno is whether Hicks was prejudiced by the court's failure to give a jury unanimity instruction. Because this was a constitutional error, the question is whether the trial court's error was harmless beyond a reasonable doubt.14
As already explained, the prosecutor told the jury it could convict Hicks of driving under the influence based on Hicks's conduct in either of two separate incidents: (1) driving her husband's truck to her friend's house or (2) later operating the truck when she left her friend's house, got in the truck, and started the engine. Hicks's defense was that she was not intoxicated when she drove to her friend's house and she was not operating the truck when she left the friend's house — instead, she was only momentarily in the truck to get her cigarettes.
Hicks argues that, given the evidence presented at trial and the arguments of the parties, some jurors may have accepted one part of Hicks's defense but not accepted the other. That is, some jurors may have found Hicks guilty of driving while under the influence based on the first incident but believed that there was reasonable doubt as to whether she was operating the truck in the second incident. Conversely, some jurors may have believed that there was reasonable doubt as to whether Hicks was intoxicated when she drove to her friend's house but believed that there was no reasonable doubt that her actions in the second incident constituted operating.
We agree with Hicks that, given the current record, we cannot say beyond a reasonable doubt that the court's failure to instruct the jury on the requirement of a factually unanimous verdict did not affect the outcome of Hicks's case. The superior court's failure to give that instruction was therefore plain error.
We REVERSE Hicks's conviction.
