Thursday, January 3, 2008

No Jury Instructions are Perfect, Even Less are Reversible.

Whitaker v. State (ICA December 31, 2007)

Background. Whitaker was indicted for Insurance Fraud (HRS § 431:10C-307.7(a)(1) and (b)(2)) and Attempted Theft in the 2d (HRS § 708-831(1)(b) and HRS § 705-500). According to Whitaker, he called AIG, his insurance carrier, to report that vandals and damaged his car and make a claim. AIG instructed him to call the police first for a report. Whitaker drove the car to the station in Wahiawa, where an officer inspected the damages and reported scratches on the sides, hood, and trunk. He then drove to HNL to AIG for an inspection. Whitaker claimed extensive damage. AIG found it suspicious that there were fragile paint markings on the car after it had been driven from Wahiawa to HNL. AIG suspected that Whitaker was claiming that pre-existing damage was part of the vandalism. Whitaker testified at trial that he had told AIG about the pre-existing damages. Whitaker was found guilty as charged.

No Error for Denying Unanimity Instruction. When several acts are alleged and any one of them can establish the charged offense, the State must pick one of the particular acts for which it will rely upon for conviction, or the court must instruct the jurors that all of them must agree that the same underlying criminal act has been proved beyond reasonable doubt. State v. Shinyama, 101 Hawai’i 389, 399, 69 P.3d 517, 527 (2003). Unanimity is not required when the charged offense is based on a single incident, when the offense is a continuing offense, or when the offense can be committed in more than one way. See State v. Valentine, 93 Hawai’i 199, 208-09, 998 P.2d 479, 488-89 (2000); State v. Rabago, 103 Hawai’i 236, 250, 81 P.3d 1151, 1165 (2003).

Whitaker was charged with Insurance Fraud and Attempted Theft of State Property by Deception. The ICA held that the first offense is based on a single incident—submitting a fraudulent claim to AIG—requiring a single plan or impulse. The 2d offense has already been held by the HSC to be a continuous offense. State. Arceo, 84 Hawai’i 1, 18-19, 928 P.2d 843, 860-61 (1996).

“Assuming” v. “Inferring” is Harmless Error. During deliberation, the jury asked the court whether it could assume that Whitaker knew his claim exceeded $300, the amount necessary to find liability. The circuit court, over objection, failed to clarify that the jury cannot assume such facts. The ICA appears to have agreed that it is more correct for the jury to infer facts circumstantially rather than assume them. Nevertheless, the instructions, when read as a whole, the failure to make this distinction “at most, harmless.”

The Ins. Fraud Instruction. Insurance Fraud arises when a person acts w/ the intent to obtain benefits/recovery for services by knowingly presenting any false information on a claim. HRS § 431:10C-307.7. For it to be a Class C Felony, the claim must exceed $300. Id. Whitaker argued on appeal that the court's instructions on false information and the valuation were erroneous.

No Plain Error for False Info. and the ICA Rewrite. The trial court instructed the jury that one of the elements of Ins. Fraud was that Whitaker “did knowingly present . . . false information on a claim[.]” Whitaker argues that this sentence did not indicate that the jury must find that Whitaker knew the information was false. False information, after all, is an attendant circumstance that must be proven with the requisite state of mind in a criminal case. HRS § 702-204 and 702-205.

Although Whitaker objected to this instruction on other grounds (the valuation element), the ICA reviewed this issue for plain error and found none. This shows that a general objection to a jury instruction is insufficient—at least when the rejected instruction does not reflect the issue raised on appeal. It does raise an interesting question. What if Whitaker’s proposed instruction reflected both the false information error and the valuation error? Would it have been sufficient to then make a general objection on the ground that it misstates the law? Surely a lawyer (and perhaps the trial court) would certainly hope so lest we see an era of involved and specific objections to jury instructions.

In spite of the failure to preserve the issue on appeal, the ICA proposed a better formulation of the first element of the instruction for future guidance: “Whitaker did knowingly present . . . information on a claim to AIG that Whitaker knew was false.”

You Gotta Believe (or Know). The issue that was preserved for appeal went to valuation. The court instructed the jury that it had to find that Whitaker “believed that the value of the benefits exceeded $300.” Whitaker wanted “knows” rather than “believes.” Generally, a person acts intentionally for attendant circumstances elements when the person, inter alia, “believes or hopes [the circumstances] exist.” HRS § 702-206. Moreover, when valuation is an element in an offense, HRS § 708-801(4) and (5) equate “knowing” w/ “believing.” Thus, the ICA found no error. Whitaker made the same argument for the Attempted Theft 2 instruction and got the same result from the ICA.

Common Terms Get No Special Treatment. The ICA curtly rejected Whitaker’s contention that there was error in failing to instruct the jury on the word “defense.” Courts needn’t define “common terms that are readily understandable[.]” According to the ICA, the “legal understanding of the term [‘defense’] is not significantly different from the common understanding of the term.”

Untimely Requests for Lessers Need Rational Basis for Acquittal. It is reversible error to deny a defendant’s timely request for an instruction on lesser-included offenses. State v. Kinnane, 79 Hawai’i 46, 49-50, 897 P.2d 973, 976-77 (1995). For an untimely request, however, the trial court should not give the instruction at all unless there is a “rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him [or her] of the [lesser.]” Id. Where there is a rational basis, it is plain error. The ICA found no basis here.

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