Former Clients and Phantom Jury Instructions

State v. Mark (HSC May 12, 2010)

Background. Mark, with others present, met with Paikai and Piko in a parking lot. There was a dispute over a camera. Paikai had a box which supposedly had the camera. At that point, Mark produced a gun and fired shots above Piko's head. Mark also fired a shot at Paikai and hit her in the leg. Mark later testified that he intended on shooting her in the leg and did not aim for her head or body. About a month later, two plain-clothes officers responded to a tip that Mark was at a Baskin Robbins in Kapolei. Officers Gaspar and Sung were going to arrest Mark pursuant to a warrant. When they got there, Mark was there with his girlfriend and his daughter; he struggled with the officers and Mark fired three shots. Officer Gaspar died from the gunshot wounds. Two indictments came down against Mark. They were consolidated for trial.

Mark raised self-defense and defense of others in both cases. A defense-of-others instruction was given for the Baskin Robbins case. The jury was hung on the murder charge related to Piko and found Mark guilty of attempted assault in the 2d with regard to Paikai. The jury also found Mark guilty of murder in the first for the death of Officer Gaspar, but hung on attempted murder in the 1st with regard to Officer Sung. The hung verdicts were set for retrial. In the middle of the 2d trial, it became apparent to Mark's lawyer--a public defender--that Piko was in custody for a probation revocation and resentencing. At that probation revocation, Piko was represented by a public defender. Fearing a violation of the rules of professional conduct, Mark's attorney moved for a mistrial because she believed that she could not cross-examine Piko, who had been represented at the probation revocation hearing. The motion was denied. The trial resumed. The jury was still hung. At sentencing, the circuit court granted the State's motion for extended sentences with regard murder in the 1st. Mark was sentenced to life in prison without the possibility of parole. The ICA affirmed his conviction.

Without an Objection at Trial, Jury Instructions Reviewed for Plain Error. Mark challenged the defense-of-others instruction given at his trial relating to the police officers. "Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." State v. Gomes, 97 Hawai'i 299, 302, 36 P.3d 1269, 1272 (2001). When there is no objection, instructions "will be reviewed only for plain error." State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998). There was no objection to it at trial. The HSC stated that it reviewed Marks' challenges for plain error.

Defense-of-Others Instruction Fine on one Point . . . Use of force is a defense when the actor (1) "[u]nder the circumstances as the actor believes them to be, the person whom the actor seeks to protect would be justified in using such protective force" and (2) the actor believes the force is "necessary for the protection of the other person." HRS § 703-305(1). The circuit court's instruction was almost identical to the pattern jury instruction, HAWJIC 7.02. Mark contended that the instruction erroneously told the jury that even if the actor mistakenly believed the third party was in danger, it did not matter if the third party could not have reasonably believed that force was necessary to protect himself or herself. The HSC rejected this argument. In another paragraph of the instruction, the circuit court stated that the use of force is justified when viewed "[u]nder the circumstances as the Defendant reasonably believed them to be, the third person would have been justified in using such force[.]"

. . . But Erroneously Mixed Self-Defense with Protection of Others. The other objection came from this instruction, which is again identical to HAWJIC 7.02:

The use of deadly force is not justifiable if the Defendant, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter, or if the Defendant knows that he can avoid the necessity of using such force with complete safety by retreating.

The HSC noted that this language comes directly from HRS § 703-304(5), which pertains only to self-defense, not defense of others. This is problematic. Under the defense-of-others statute, the defendant is not required to retreat in this way. "When the actor would be obliged under section 703-304 to retreat, . . . the actor is not obliged to do so before using force for the protection of another person[.]" HRS § 703-302(2)(a). There is no explanation in the comments on the pattern jury instructions as to why this mixing of defenses takes place. According to the HSC, this mixing is an erroneous statement on the law and it was error to give it to the jury (even if it was from the pattern instructions).

And it was not Harmless . . . The HSC held that in the first trial--relating to the parking lot-- the erroneous instruction was harmless. There was no evidence, according to the HSC, suggesting that Mark provoked the use of force or that he knew he could have retreated. However, in the 2d trial relating to Baskin Robbins, there was evidence that suggested a jury could have found that Mark provoked the use of force against the officers. Thus, the jury's conclusion would have been, as the HSC put it, "legally infirm."

. . . But it Should not have even been Given the in First Place. The HSC went further, however, and held that the defense-of-others instruction should have never been given in the first place for the Baskin-Robbins trial. According to the HSC, there was no evidence of any force being directed toward Mark's girlfriend or daughter; let alone anything that would justify deadly force. Mark himself testified that he did not notice the officers until they grabbed him and that he thought they were going to take him and kill him--rather than his family. Thus, according to the HSC, even though the instruction was erroneous and even though it was not harmless, it still did not prejudice Mark because it should not have been given.

Preserving the Standard: Defense Instruction Calls only for a Rational Basis. The HSC here took pains to note that the standard for giving an instruction hasn't changed. A "defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence." State v. Cabrera, 90 Hawai'i 359, 370, 978 P.2d 797, 808 (1999). Here, however, the HSC held that there was simply "no rational basis on which the jury could conclude that [Mark] was justified in using force for the protection of others." See State v. Kupihea, 98 Hawai'i 196, 206, 46 P.3d 498, 508 (2002).

But what About Nichols? Mark did not object to the protection-of-others instruction. In State v. Nichols, 111 Hawai'i 327, 335, 141 P.3d 974, 982 (2006), the HSC held that the plain error and harmless error standards merged when it came to jury instructions. The standard is the same: "once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction[.]" Id. That said, it seems strange that HSC stated it reviewed the decision for plain error. Does that put Nichols in question? Probably not. When you step back, it appears that the HSC reviewed the challenged instructions for some kind of "instructional error" (i.e. prejudice). Having found defects in the instruction, but defects that did not contribute to Mark's conviction, it did not reverse. That is consistent with Nichols. So why did it insist on saying that it was reviewing the record for plain error?

A moot Point? The analysis by the HSC here is interesting. It takes up the challenges raised by Mark. First it holds that there was no error with one part of the instruction, then holds there was error with the other part and that error was not harmless beyond a reasonable doubt. However, in the end, it holds that the instruction should not have been given in the first place. If that is the case, then was it necessary to examine the instruction at all? Are the earlier portions, then, dicta?

Concurrent Representation Problem. A conflict of interest arises to ineffective assistance of counsel when the attorney-client relationship gives rise to a conflict and either there is an adverse effect on counsel's performance or no consent was obtained. State v. Richie, 88 Hawai'i 19, 44, 960 P.2d 1227, 1252 (1998). There are different standards depending on the kind of attorney-client relationship. Fragiao v. State, 95 Hawai'i 9, 18, 18 P.3d 871, 880 (2001). Under Hawai'i Rules of Professional Conduct (HRPC) Rule 1.7, clients that are defendants and the prosecution's witness would arise to concurrent representation and are simply impermissible. However, if the witness is a former client, HRPC Rule 1.9 would apply and it would be permitted so long as they are not in "the same or a substantially related matter" and the lawyer does not "use information relating to representation to the disadvantage of the former client[.]" HRPC Rule 1.9.

According to the HSC, Piko was a former client of the public defender's office and that HRPC Rule 1.9 applied. By the time Mark went to his 2d trial, the probation revocation and resentencing of Piko was over and the public defender's office considered the case "closed." Thus, under HRPC Rule 1.9, there was no conflict. However, the HSC did correct the ICA's conclusion that there was no showing of an adverse effect on counsel's performance. According to the HSC, there is no need to show prejudice. Richie departs from federal standards of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). When there is no consent given and there is a conflict, no prejudice need be shown.

The Other Issues. The HSC rejected Mark's other contentions relating to trial publicity, a tainted jury, and prosecutorial misconduct.

The Sentencing Issue. Mark and the State agreed the extended term was unconstitutional in light of State v. Maugaotega, 115 Hawai'i 432, 434, 168 P.3d 562, 564 (2007). Mark argued that upon remanded, there should be no extended-term sentence because it was pending appeal when Maugaotega came down. The HSC disagreed. The special legislation from Act 1 of the 2007 legislature allows sentencing courts to empanel a jury to make the necessary findings for extended term sentencing. See also State v. Jess, 117 Hawai'i 381, 413 P.3d 133 (2008). Upon remand, the State is free to file for extended terms and the circuit court may empanel a sentencing jury.