Thursday, May 17, 2012

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.

Editor's Note. It appears that the practice of identifying police officers and trial court judges by the ICA and the HSC has been abandoned.

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