SPECIAL INTERROGATORY ON INTRINSIC AGGRAVATING

SPECIAL INTERROGATORY ON INTRINSIC AGGRAVATING CIRCUMSTANCE WHEN AN ACCOMPLICE INSTRUCTION IS GIVEN Did the prosecution prove beyond a reasonable doubt that the Defendant actually [constructively] possessed, used, or threatened to use (specify type of firearm) during the commission of the (identify underlying crime)? Your answer to this question must be unanimous. Yes ____ No ____ Commentary In Garringer v. State, 80 Hawai`i 327, 909 P.2d 1142 (1996), the Hawai`i Supreme Court held that HRS § 706-660.1 precludes imposition of enhanced sentencing where the defendant did not personally possess, threaten to use, or use a firearm while engaged in the commission of a felony. Thus, when an accomplice liability instruction is given upon the underlying offense, “the circuit court should instruct the jury, by special verdict interrogatories, to make any and all findings relevant to the imposition of enhanced sentences where the requisite aggravating circumstances are intrinsic to the commission of the crime charged.” Garringer, 80 Hawai`i at 335, 909 P.2d at 1150. The jury’s answer to an interrogatory of this type, whether affirmative or negative, must be unanimous, See State v. Peralto, 95 Hawai`i 1, 18 P.3d 203 (2001); see also State v. Yamada, 99 Hawai`i 542, 57 P.3d 467 (2002).