Wednesday, October 31, 2007

When Priors An Element, Don't Stip w/o Colloquy

State v. Murray (HSC Oct. 29, 2007)

Background. The State charged Murray with Abuse of a Household or Family Member in violation of HRS § 709-906, which requires the defendant to be charged as a class C felony when the charged offense occurs within two years of the 2d or subsequent conviction. At trial, the defense counsel stipulated to Murray's prior abuse convictions. The stipulation was read into evidence to the jury w/o a limiting instruction. The jury found Murray guilty as charged. The ICA affirmed.

Prior Convictions are “Elements” to the Offense as a Felony. Because HRS § 709-906(7) mandates the State to charge as class C felony based on prior convictions of the same statute made w/in two years, (first-time convictions under this statute are misdemeanors), the HSC held that the prior convictions were essential elements that must be proven by the State beyond a reasonable doubt. See HRS § 702-205; State v. Aiwohi, 109 Hawai'i 115, 123 P.3d 1210 (2005) (essential elements are the conduct, results of the conduct, and the attendant circumstances—that is, “any circumstances defined in the offense that are neither conduct nor the result of conduct[.]”). Thus, the HSC held that it is a defense to the Abuse of Household Member Felony by asserting that the offense was not the defendant's “third of any subsequent offenses . . . occur[ring] within two years of a 2d or subsequent conviction.”

As Proving the Prior-Convictions Element is a Fundamental Right, there must first be a Knowing and Voluntary Waiver by the Deft. To Stipulate. Having held that prior convictions are essential elements in felony prosecutions of HRS § 709-906, the HSC reasoned it too, like all other essential elements, must be proven by the State beyond a reasonable doubt. Nevertheless, the right to having elements proven BRD can be knowingly and voluntarily waived “directly from the defendant.”

The HSC held that based on State v. Ibuos, 75 Haw. 118, 857 P.2d 576 (1993), and State v. Tachibana, 79 Haw. 226, 900 P.2d 1293 (1995), the defendant cannot waive his or her fundamental right unless the trial court “first engage[] in a personal on-the-record colloquy with the defendant to ensure such rights are voluntarily and knowingly waived.” Here, Murray did not waive his right to have the priors proven by the State.

Is Failing to Object is NOT Waiver Here. The HSC rejected the State's contention that Murray's failure to raise the issue and thus waived his fundamental right. The HSC explained that many defendants are unaware of the fact that they have a fundamental right to have all the elements proven BRD by the State or that “an objection with respect to waiver or stipulation of an element by defense counsel must be objected to during trial or the right to object may be lost.” Therefore the only way to truly ensure that the defendant understood that a stipulation to a prior satisfied the State's burden of proof for that element is the Tachibana colloquy.

Upon Stipulation to the Prior and Colloquy, the Ct. Must Issue a Limiting Instruction. Finally, the HSC held that the family court erred in failing to give a limiting instruction to the jury about the stipulation. Thus, when the defendant seeks to stipulate to prior convictions, the trial court must accept them, but only after ensuring that the defendant is knowingly and voluntarily waiving the right to have them proven BRD by engaging in an on-the-record colloquy. Once accepted, the court must instruct the jury that (1) felony convictions for violating HRS § 709-906(7) require the State to prove that the defendant has at least two prior convictions w/in two years of the charged offense (the instruction must not indicate that the two priors were for the same statute); (2) defendant has stipulated to at least two misdemeanor convictions; (3) the stip is evidence of the prior-conviction element; (4) this element of the charged offense must be taken as conclusively proven; (5) the jury cannot speculate about those priors; and (6) the jury cannot consider the priors for any other purpose.

Justice Nakayama's Dissent. Justice Nakayama was the sole dissenter. She believed that Tachibana was misapplied. Specifically, Justice Nakayama believed that the majority erroneously rejected the State's contention that the Defendant's failure to object arose to waiver of his rights. Tachibana and the colloquy was inapplicable to Murray because, unlike Tachibana, there was no evidence that Murray's counsel deprived him of his fundamental right. (Tachibana's defense team, over objection by Tachibana, made the strategic decision to refuse to let him testify in his own defense.) In this case, Justice Nakayama described the stipulation as “a clever show of gamesmanship, which . . . implicated the defendant's constitutional right[.]” Justice Nakayama, however, did agree with the majority that a limiting instruction should have been given.

In Sum: Abuse as a Felony v. Abuse as a Misdemeanor and Waiver of Fund. Rts. The first time a person violates HRS § 709-906, he or she is guilty of a misdemeanor. When there are two or more convictions under the same statute, however, the 3d conviction “shall be charged with a class C felony.” The HSC has held that the prior convictions are an essential element that must be proven BRD, and that, if the defendant stipulates, the family court is required to engage in a Tachibana-like colloquy. If a jury has been empanelled, then the court must give particular limiting instructions. This begs the question: what happens if the state fails to prove this element? The language in HRS § 709-906(7) requires the State to charge it as a class C. The legislature has taken away prosecutorial discretion, and has mandated that it is a felony. This strict language suggests acquittal, and suggests that the option to charge the offense as a misdemeanor as a lesser-included is unavailable.

The HSC has also read Tachibana broadly. The case suggests that the best way to ensure that the waiver of a fundamental right is done by the defendant knowingly and voluntarily, the trial court must engage in an on-the-record colloquy. Justice Nakayama is concerned that this broad interpretation may overcome the well-established rule that the failure to object constitutes waiver. Then again, the HSC's rationale for overcoming the failure-to-object-constitutes-waiver rule is that defendants in some circumstances are unaware that they have certain fundamental rights (such as the right to have the state prove essential elements BRD). Should a circumstance arise where the defendant either is made aware of a fundamental right or it is commonly known that certain rights exist (like the right to have a jury perhaps?), but fails to object anyway, then the rationale here would not fit this holding would be inapplicable.

Further Reading. Reading this case reminded me of the US Sup. Ct's split decision: Alamandarez-Torres v. United States, 523 U.S. 224, (1998). In that case, the issue was whether the prior convictons in a federal criminal statute were factors used by the sentencing court to enhance a sentence or elements of the crime that must be proven by the jury. The plurality held that they were part of the latter and thus, need not be proven BRD by a jury. This conclusion later developed into the prior-convictions exception to Apprendi.

The HSC came to the opposite conclusion and held that prior convictions are elements needed to be proven BRD. Granted, these are different statutes, but similarities in the issue are intriguing. Could this be the start of the much-anticipated erosion of the prior-convictions exception to Apprendi? It's too early to tell.

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