CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000009; CR. NO. 11-1-0608).
Summer M.M. Kupau, for petitioner
James M. Anderson, for respondent.
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
Petitioner/Defendant-Appellant Chad Getz (Getz) appeals from the April 17, 2013 Judgment on Appeal of the Intermediate Court of Appeals (ICA), affirming the Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (circuit court) on December 7, 2011. For the reasons stated herein, we hold that the circuit court erred by failing to give a specific unanimity instruction and that this error was not harmless beyond a reasonable doubt. Accordingly, we vacate the ICA and circuit court judgments and remand the case for a new trial.
On May 2, 2011, Respondent/Plaintiff-Appellee State of Hawai'i (State) charged Getz with committing the offense of Robbery in the Second Degree in violation of Hawai'i Revised Statutes (HRS) § 708-841 (1) (a) . The State's Complaint charged:
On or about the 21st day of April, 2011, in the City and County of Honolulu, State of Hawai'i, CHAD GETZ, while in the course of committing a theft from Nordstrom, Inc., did use force against Angela Rueber and/or Jessie Saffery, a person who was present, with intent to overcome Angela Rueber's and/or Jessie Saffery's physical resistance or physical power of resistance, thereby committing the offense of Robbery in the Second Degree[.]
Getz's jury trial commenced on September 26, 2011.The State called two witnesses to testify: Nordstrom loss prevention manager Angela Rueber (Rueber) and Nordstrom loss prevention agent Jessie Saffery (Saffery).
Around 9 p.m. on April 21, 2011, Rueber and Saffery were in the Loss Prevention office, located on Nordstrom's first floor, conducting routine surveillance of the store using the store's closed-circuit television system. Rueber and Saffery observed Getz enter the store and walk down the escalator carrying an Old Navy shopping bag. They watched as Getz selected a Coach handbag and walked away from the handbag department. At that point, Rueber left the security office to pursue Getz, while Saffery remained in the office and continued watching the monitor. Rueber and Saffery maintained communication using two-way radios with concealed ear pieces.
After Getz selected the handbag, he placed it on his shoulder with the Old Navy shopping bag. Saffery informed Rueber that Getz had walked past the cash register. Rueber caught sight of Getz heading in the direction of the exit towards the parking garage. Rueber testified that Getz "look[ed] back a couple of times" and "put the handbag over his shoulder" so that it was "sandwiched" between the shopping bag and his back. As Rueber followed Getz out of the exit, she had a Nordstrom salesperson accompany her. The salesperson was "approximately five feet behind" Rueber as they proceeded to the exit.
Saffery testified that after she saw Getz exit the store, she also left the Loss Prevention office and ran to assist Rueber in apprehending Getz.
Rueber testified that after Getz exited the store, he walked towards the stairwell. Rueber caught up to Getz at the entrance to the stairs and told him that she was with Nordstrom Loss Prevention and that he needed to come back into the store with her. Getz turned to face her and responded, "[N]o, I'm not going anywhere with you, " then turned away and continued walking. Rueber grabbed the handbag. Getz did not let go of the bag and began walking down the stairs, as Rueber continued to hold on to the strap of the handbag. Rueber testified, " [W] e were playing tug-of-war with [the strap of the handbag] and he continued to walk down and I went down the stairs with him , cause I didn't let go of the bag."
Rueber then tried to stop Getz from going down the stairs by holding on to the bag with her right hand, putting her left arm out in front of Getz, and grabbing the handrail with her left hand. Getz slowed down momentarily but "broke through" her arm with his "body weight" and continued down the stairs. Getz and Rueber continued to hold on to the bag down three flights of stairs, for approximately two minutes. Rueber testified that Getz did not run down the stairs.
While Rueber and Getz walked down the stairs, Rueber tried unsuccessfully to pin Getz against the rail and to sweep him off his feet by wrapping her legs between his legs to make him lose balance. Getz "used his weight to push through [Rueber] and continue down the stairs, " but did not punch or kick Rueber, try to throw her off of him, or verbally threaten her.
At some point, Saffery caught up to Rueber and Getz on the stairwell. Rueber could not remember when Saffery arrived on the stairs. Saffery testified that she arrived when Rueber and Getz were on the first flight of stairs. Saffery stated that upon catching up to Rueber and Getz, she "tried to stop [Getz] along with [Rueber], but we just kept going down the next flight of stairs."
Rueber testified that "somewhere between the second landing and the third flight of stairs, " she "ripped out" the handbag from Getz's grip "either by my force or I pulled it away." She then put Getz's hand behind his back. However, she testified that Getz did not stop walking at that point, and they "continued down to the third landing where it stopped."
According to Rueber, they stopped on the third landing when "[Saffery] arrived and [Getz] said he was going to jump over the railing, so I grabbed onto his shirt and there was a police officer that showed up and shouted that he better listen to me. And that's when he all of a sudden became compliant."
Rueber explained that Saffery helped her pull Getz's arms behind his back and recovered her handcuffs, which she had dropped on the stairs just before Getz stopped on the third landing. Rueber testified that she and Saffery "were trying to get [Getz's] arms behind his back . . . but he was obviously resisting. And then he stopped resisting once the officer was there." She stated that the police officer stood "at the top of the third flight of stairs." However, the officer did not become physically involved in the incident and "did not have any involvement after that."
According to Saffery, Getz was "detained" on the third landing when they "actually stopped." Saffery explained that she, Rueber and Corpuz "ended up getting [Getz] against the corner of the rail, " with Rueber on one side, and the salesperson "holding [Getz's] other arm." After Getz was cornered, ...