Evidence from Juvie Proceedings Inadmissible, Calling Jury Instructions Mumbo Jumbo is Misconduct
State
v. Schnabel (HSC May 11, 2012)
Background. Less Allen Schnabel was charged with manslaughter
(HRS § 707-702(1)) and unauthorized entry into a motor vehicle in the first
degree (HRS § 708-836.5). The charges arose out of the death of Christopher
Reuther at Zablan Beach Park in Nanakuli in 2007. Schnabel apparently punched
Reuther once in the face, which caused his death. The prosecution gave notice
that it intended to use at trial evidence that in 2002, a man, who was trying
to shake Schnabel's hand, was punched in the face. He fell to the ground and
was kicked several times. Schnabel was prosecuted as a juvenile and at the
juvenile proceedings, an expert witness testified about how an orbital fracture
could cause "subdural hematoma in the brain," which is a substantial
risk of death. According to the prosecution, this evidence was admissible
because it would prove that Schnabel was on notice that similar acts in the
future could cause serious injuries. Schnabel filed a motion in limine to
exclude this evidence. The motion was granted, but the prosecution moved to
reconsider the ruling. The trial court did not reconsider the matter, but noted
that if Schnabel testified, the prosecution would be able to cross-examine him
about the incident. Schnabel did not testify. He specifically stated that he
did not testify because he did not want to expose himself or the jury to the
facts in the juvenile proceedings.
After the trial court instructed the jury, the
prosecutor made its closing argument. During the argument, the prosecutor told
the jurors to use common sense.
"Do not get too caught up in the mumbo jumbo
of all the words but use your common sense . . . [D]ig deep down inside and ask
yourself, deep down inside, you know, the gut feeling we talk about deep down
inside. Put aside those words. . . . And then you reach down deep inside, deep
down inside: Is he guilty? And if you can say that, that's your common
sense."
Schnabel immediately objected. At a bench
conference, Schnabel argued that the prosecutor urged the jurors to disregard
the necessity of proof beyond a reasonable doubt and the instructions. The
court overruled the objection and cautioned that jury that "pity, passion
and prejudice have no play, I'll allow you to argue that basically as an
illustration of your take on common sense." Two days later the court, sua
sponte, gave the jury an instruction on reasonable doubt. Schnabel was
found guilty of manslaughter and was sentenced to twenty years of imprisonment.
He appealed, and the ICA affirmed.
Judicial Notice
of the Law. The HSC--without
being noted by either party--took judicial notice of HRS § 571-84(h). See
Life of the Land, Inc. v. City Council of City and County of Honolulu,
61 Haw. 390, 419, 606 P.2d 866, 885 (1980); HRE Rule 202(b) ("The court shall
take judicial notice of the constitutions and statutes of . . . every
state."). The HSC also observed that the applicable law is not evidence
that must be admitted by a party. "It is axiomatic that a court must
'know' the law within its jurisdiction; hence a court is required to 'notice'
applicable law and to instruct the jury thereon[.]" State v. West, 95
Hawai'i 22, 26-27, 18 P.3d 884, 888-89 (2001).
Evidence from
Juvenile Proceedings are Inadmissible . . . Any evidence from juvenile proceedings "shall ot in any civil,
criminal, or other cause be lawful or proper evidence against the minor therein
involved for any purpose whatever[.]" HRS § 571-84(h). Here, the
prosecution was permitted to use an expert's testimony from a juvenile
proceeding in Schnabel's very adult criminal trial. The plain language in HRS §
571-84(h) prohibited it from coming in at all. Here, the trial court should have
been alerted to the fact that the juvenile proceedings were inadmissible at
trial for any purpose--impeachment or otherwise. The HSC held that the trial
court plainly erred in ruling that the evidence would be admissible for the
purpose of impeaching Schnabel if he were to testify.
(. . . but
Sentencing is O.K.) The HSC confirmed
the key distinction between trial and sentencing hearings. In State v.
Nobriga, CITE, the HSC already held that the statute prohibiting any evidence
to come in at trial did not stop the same evidence from being used at a sentencing
hearing. HRS § 571-84, according to the HSC, is designed to "prohibit the
use of evidence against the child or minor involved in an adversary proceeding
in any court other than Family Court" it is not "a blanket
prohibition banning the use of juvenile records in a nonadversary proceeding,
that is, at the sentencing state." Id. at 78-79, 527 P.2d at
1271-72.
The Error is not
Harmless. The HSC rolled out the earliest
formulation of Hawai'i's harmless error standard:
Error is not viewed in isolation and considered
purely in the abstract. It must be examined in light of the entire proceedings
and given the effect to which the whole record shows it to be entitled. In that
context, the real question becomes whether there is a reasonable possibility
that error might have contributed to conviction.
State v. Duncan, 101 Hawai'i 269, 278, 67 P.3d 768, 777 (2003) (quoting State v.
Heard, 64 Haw. 193, 194, 638 P.2d 307, 308 (1981)).
Schnabel stated plainly on the record that the only
reason why he was not testifying was due to the fact that he could have been
impeached with the juvenile proceedings. According to the HSC, this is an error
that infringes on the constitutional right to testify. See Tachibana
v. State, 79 Hawai'i 226, 331, 900 P.2d 1293, 1298 (1995). When an error "infringes
upon a basic right of the accused" it cannot be considered harmless. State
v. Cuevas, 53 Haw. 110, 115, 488 P.2d 322, 325 (1971).
Despite this standard from Cuevas and Tachibana,
the HSC examined whether the error might have contributed to Schnabel's
conviction. It held that it did because Schnabel's testimony would have negated
a reckless state of mind and the exposure of the juvenile proceedings evidence
preclude the jury from hearing that testimony. Schnabel's testimony--that he
did not know that a single punch could kill a man--was corroborated by the medical
examiner who testified that that fact is not well known and unique. Additionally,
Schnabel was the only witness that would have been able to provide evidence of
self-defense. Thus, the erroneous ruling might have contributed to the
conviction. It was unnecessary to prove that the jury would have believed
Schnabel.
The Elusive Harmless
Error Standard. The HSC has unrolled
two different standards to the harmless error test. The first--and older
one--comes from State v. Heard, supra, and is a well-known
standard: is there a reasonable possibility that the error might have
contributed to the conviction? In other words, actual prejudice is not
required. Rather, the court examines if it is reasonable to assume that but for
the error, there might not have been a conviction at all. This standard--viewed
in the abstract--would seem easy to prove. But harmless error is not cakewalk.
Often times, the HSC or the ICA will find error, but hold that the overwhelming
evidence of guilt renders it harmless (whether this is a true application ofthe Heard standard is questionable).
That leads to this second formulation of harmless
error. Apparently, if the error infringes on a basic right, it cannot be
considered harmless. Arguably, this would be a bypass around prejudice all
together. It would seem that if the error infringed upon a basic right, then
the court need not determine if the error might have contributed to the
conviction. In other words, if it infringes upon a basic right, the question of
prejudice--actual or possible--is utterly irrelevant. But that's not what the
HSC did here. Perhaps some other time.
Calling Jury
Instructions "Mumbo Jumbo" was Prosecutorial Misconduct. The HSC held
that the prosecutor's urging to not get caught up in the "mumbo
jumbo" of the jury instructions was prosecutorial misconduct. The
prosecutor's argument implied that the jury could simply ignore the law that
was instructed to them and go with its gut feeling. The HSC also noted that
telling jurors that they can determine guilt based on a "gut feeling"
is a clear misstatement of the law. The trial court erred in equating "gut
feelings" with "common sense." The prosecutor invited "the
jury to base its verdict on considerations other than the evidence in the case[.]"
State v. Mars, 116 Hawai'i 125, 143, 170 P.3d 861, 879 (App. 2007). This
was improper conduct. State v. Cardus, 86 Hawai'i 426, 433, 439, 949
P.2d 1047, 1054, 1060 (App. 1997) (urging jury to ignore instructions and follow
"common sense" was improper).
This too, was
not Harmless. Having determined
that the comments were indeed prosecutorial misconduct, the HSC moved on to
determine whether it was harmless beyond a reasonable doubt. Again, it unfurled
the reasonable-possibility-that-it-might-have-contributed-to-the-conviction
standard. State v. Mainaaupo, 117 Hawai'i 235, 247, 178 P.3d 1, 13
(2008). However, in the area of prosecutorial misconduct, the court relies on three
factors "(1) the nature of the conduct; (2) the promptness of a curative instruction;
and (3) the strength or weakness of the evidence against the defendant." Id.
at 252, 178 P.3d at 18.
According to the HSC, all three factors weighed
against harmlessness. First, the comments urged jurors to disregard the
cornerstone of the criminal justice system: proof beyond a reasonable doubt.
Second, there was no curative instruction. Nothing got around the fact that
Schnabel's objection was overruled. By overruling the objection, the court,
"at least tacitly, placed its imprimatur upon the DPA's [improper remarks]."
State v. Pacheco, 96 Hawai'i 83, 96, 26 P.3d 572, 585 (2001). For the
HSC, the two unexplained instructions on reasonable doubt did not cure the lack
of a curative instruction. They did not address the impropriety of the prosecutor's
comments. Finally, the evidence was not so overwhelming that the misconduct was
neutralized or rendered harmless.
Chief Justice
Recktenwald's Dissent. Chief Justice
Recktenwald took issue with the fact that no one objected on the grounds that
the juvenile proceedings could not be used at trial. That meant that the
majority found plain error. Furthermore, the majority relied upon a statute that
was not part of the discussion or analysis below. For the Chief Justice, the
issue was simply not before the court. Moreover, Chief Justice Recktenwald disagreed
with the merits of the argument. Schnabel did not testify. That much is clear.
But it was unclear for the Chief Justice if the court's ruling caused Schnabel
to stay off the witness stand. He stated that the ruling was one of the factors
underlying his decision to not testify. Furthermore, Schnabel did not make an
offer of proof as to what his testimony would have been and so the entire issue
of whether the error--if it was error--was plain enough to warrant a new trial
was too speculative for the Chief Justice.
As for the applicability of HRS § 571-84(h), Chief
Justice Recktenwald wrote that the plain language prohibits evidence from
juvenile proceedings only if the minor was adjudicated. Without an
adjudication, the prohibition from using that evidence does not apply. Here,
Schnabel was not adjudicated in the proceedings. Thus, it could have been used
against him if he were to testify.
As for the prosecutorial misconduct claim, Chief
Justice Recktenwald agreed that the prosecutor's comments could be viewed as an
invitation for jurors to disregard the law. However, he believed that a
curative instruction had been given with the immediate instruction. Thus, it
was unnecessary to asses the third prong--the strength of the case against Schnabel.
Justice Nakayama joined.
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