Saturday, December 14, 2013

Failure to Instruct on Lesser-Included Offenses not Harmless even when jury Convicts on Greater or Charged Offense

State v. Flores (HSC November 29, 2013)
Background. Shane Flores along with Floyd Orsborn were indicted with, inter alia, one count of kidnapping Aaron Taum. Specifically, they were charged with “intentionally or knowingly restrain[ing Taum] with intent to terrorize him or a third person.” Another co-defendant on other charges was Robert Lodgson. At trial, the prosecution presented evidence that Taum and three others were at a picnic table outside a house in Wahiawa when Flores and Orsborn came onto the property. They covered their faces and had guns. One of the men had a gun in his hand. The man with the gun ordered them to get into the house. Everyone went inside. The men separated Taum from his group and took him upstairs. Taum scuffled with the men and he fell down the stairs. A shootout erupted later on when Taum’s girlfriend showed up with a gun.

Orsborn testified that earlier that day he got together with Flores. They wanted to get some marijuana for a party and Flores said that he knew where to get some. They met with Lodgson and the three of them went to Wahiawa. Flores explained that he was ripped off from an earlier drug deal and wanted to beat up a guy because he owed him money. They went to the house and Flores pulled out a gun. Orsborn said he only had a baton. Then came the scuffle followed by the firefight. Taum was shot, but not killed.

The circuit court denied Flores’ request to instruct the jury about unlawful imprisonment as a lesser-included offense to the kidnapping charge. Flores was found guilty of kidnapping and he appealed to the ICA. The ICA affirmed on the grounds that any error about lesser-included offenses was harmless in light of State v. Haanio, infra. Flores petitioned for cert and got it.

Unlawful Imprisonment is a Lesser-Included Offense for Kidnapping with Intent to Terrorize. The HSC examined whether kidnapping with intent to terrorize has a lesser-included offense of unlawful imprisonment. Kidnapping arises when the person “intentionally or knowingly restrains another person with intent to . . . [t]errorize that person or a third person[.]” HRS § 707-720(1)(e). This offense is a class A felony unless the defendant “voluntarily released the victim, alive and not suffering from serious or substantial bodily injury, in a safe place prior to trial[,]” in which case it becomes a class B felony. Id.

Unlawful imprisonment, on the other hand, arises when the person “knowingly restrains another person under circumstances which expose the person to the risk of serious bodily injury.” The offense is a class C felony. HRS § 707-721.

Lesser-included offenses arise when “a less serious injury or risk of injury to the same, person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.” HRS § 701-109(c). The HSC held that the offense of unlawful imprisonment met this definition and held that it is a lesser-included offense for kidnapping. Unlawful imprisonment carries “a differing state of mind indicating lesser degree of culpability.” The unlawful-imprisonment statute does not require proof of the specific intent to terrorize like the way kidnapping does. The specific intent in kidnapping is far more serious in nature. In other words, the unlawful-imprisonment statute’s state of mind is less culpable. According to the HSC, the unlawful-imprisonment statute is a lesser-included offense.

Now that it is a Lesser-Included Offense, the Trial Court Erred in Failing to Instruct the Jury about it. The prosecution’s theory of the case was that Flores and Orsborn kidnapped Taum when they came onto the property with their guns visible to others and ordered everyone at the picnic table to get into the house. In doing so, Flores and Orsborn restrained Taum. The prosecution also argued that they had the intention to terrorize the group because they covered their faces and at least one was holding a gun.

This evidence, according to the HSC, was enough for a jury to either convict Flores of kidnapping as charged or acquit him of that, but convict him of unlawful imprisonment—restraining Taum under circumstances exposing him or others to the risk of serious bodily injury (without the specific intention to terrorize). Flores presented some evidence that Flores went to the Wahiawa house because someone owed him money from a drug deal, which is arguably not the requisite intention to simply terrorize. See State v. Pukahi, 70 Haw. 456, 457, 776 P.2d 392, 393 (1989) (“A jury could believe . . . that the threat, by appellant, to give the recipient black eyes, unless he paid a sum of money within a specified time, was made with the intent to require the recipient to pay over the money” rather than intention to terrorize); State v. Alston, 75 Haw. 517, 536, 865 P.2d 157, 167 (1994) (“a person could threaten another for the purpose of inducing that person’s absence from an official proceeding without necessarily intending to terrorize or recklessly disregarding the risk of terrorizing, the person.”).

And so in this case, a jury could have found that Flores did not have the intention to terrorize Taum. Instead, a jury could have convicted Flores of unlawful restraint. Thus, the trial court erred in failing to give the lesser-included instruction because there was a “rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” State v. Haanio 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001).

And now for the Big Finale: Haanio’s Harmless Error Analysis Reconsidered. Haanio held that once a defendant is convicted of the charged offense “or of an included offense greater than the included offense erroneously omitted from the instructions”, the failure to give instructions or failure to provide the lesser is an academic point and is harmless. Id. at 415, 16 P.3d at 256. Given the presumption that juries followed all of their instructions, the rationale for this rule is that the jury did not even consider the erroneous or omitted instructions. Id. at 415-16, 16 P.3d at 256-57. So in applying that rule, because Flores was found guilty of kidnapping, the fact that the jury should have been instructed about the lesser-included offense is harmless.

Twelve years have passed since Haanio and in that time, the HSC noted that the harmless-error analysis has turned the rule upside down. Before Haanio, the trial court had the discretion in deciding whether to give the jury instructions on lesser-included offenses. Id. at 412-13, 16 P.3d at 253-54. The HSC departed from precedent and held that “trial courts must instruct juries as to any included offenses when there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” Id. at 413, 16 P.3d at 254. The rationale for taking the discretion away from the trial court was based on public policy:

Acceding to an “all or nothing” strategy, albeit in limited circumstances, forecloses the determination of criminal liability where it may in fact exist. Thus, elevating a “winner take all” approach over such a determination is detrimental to the broader interests served by the criminal justice system.

Id. at 414, 16 P.3d at 255.

According to the HSC, the harmless-error rule has really brought us back to the all-or-nothing approach. Holding these kinds of errors harmless “perpetuates the risk that the jury in any given case did not actually reach the result that best conforms with the facts, because the jury was only presented two options—guilty of the charged offense or not guilty[.]” And so, the Haanio harmless error analysis is simply unworkable and was overruled.


The new Remedy for Failing to Give a Lesser-Included Instruction. Generally speaking, “when jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.” State v. Sawyer, 88 Hawai'i 325, 329, 966 P.2d 637, 641 (1998). Under that standard, the instructions here were insufficient because they failed to include the unlawful-imprisonment-as-a-lesser-included-offense instruction. And so, the HSC vacated the kidnapping conviction and remanded for new trial.

Monday, December 2, 2013

Wheeler Doesn't Apply to your Rule 40 Petition

Christian v. State (ICA November 27, 2013)
Background. In early 2008, Edmund Christian was charged with a single count of operating a vehicle while under the influence of an intoxicant under both theories—having over 0.08 or more grams of alcohol per 210 liters of breath and having an amount sufficient to impair his normal mental faculties and guard against casualty—as well as disobeying a police officer. The DUI charge did not explicitly allege that Christian was operating on a “public way, street, road, or highway” as defined in HRS § 291E-1. Months later, Christian took a plea deal and the second count was dismissed in exchange for pleading no contest to the DUI charge. He was fined $700 with fees and “assessments.” He did not challenge the sufficiency of the charge appeal.

Almost two years later, in 2010, Christian filed a petition pursuant to Hawaii Rules of Penal Procedure Rule 40 that collaterally attacked the conviction. In the petition, Christian argued that the failure to allege the essential element of operating on a public way, street, road, or highway rendered the charge defective and the conviction improper. Of course, Christian was relying on State v. Wheeler, 121 Hawaii 383, 219 P.3d 1170 (2009), which came down about a year after the conviction was entered. The petition was denied. Christian appealed.

The Wheeler Rule. The term “operate” for the DUI statute means “to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway.” HRS § 291E-1. The HSC held that this term departs from the ordinary meaning of the word and, thus, its statutory definition must be included in the charging instrument. Wheeler, 121 Hawaii at 391-95, 219 P.3d at 1178-82. Thus, after Wheeler, any charge for DUI has to include this statutory definition.

The Argument Here . . . Christian argued that his charging instrument failed to include the statutory definition of “operate” and is, therefore, deficient. He also argued that this deficiency is a jurisdictional defect that no conviction can sustain. The prosecution concedes that the charge would be deficient after Wheeler, and argued that the Wheeler rule cannot be applied retroactively to cases on collateral attack.

Wheeler is a New Rule. First, the ICA held that the Wheeler rule is a “new rule.” According to the ICA, prior to Wheeler, the HSC had held in the past that it was perfectly reasonable to construe HRS § 291E-61 to simply track the language of the statute. State v. Ruggeiro, 114 Hawaii 227, 160 P.3d 703 (2007); State v. Kekuewa, 114 Hawaii 411, 163 P.3d 1148 (2007). Moreover, the HSC itself noted that Wheeler marked a change in the way the prosecution charges DUI. State v. Walker, 126 Hawaii 475, 273 P.3d 1161 (2012).

Going Retro. In deciding if a new rule should be given full retroactive effect (i.e., applying to cases that were not on appeal at the time it came down), the court must “weigh the merits and demerits of retroactive application of the particular rule in light of (a) the purpose of the newly announced rule, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” State v. Jess, 117 Hawaii 381, 401-02, 184 P.3d 133, 153-54 (2008).

The ICA applied all three factors and held that Wheeler should not be given retroactive effect. The purpose of Wheeler is to provide fair notice to the defendant about all of the elements in the offense. According to the ICA, there is no “compelling need” to apply Wheeler to cases that are already final. “It would be unusual for an OVUII prosecution to arise from the operation of a vehicle on a non-public road.” Moreover, the ICA stated that there was no indication in the pre-Wheeler days that the parties were “generally unaware of the State’s obligation to prove the public-road element[.]” As for the second factor, the ICA concluded that the prosecution relied heavily on the old rule of not including that language. The prosecution “routinely charged in the language of the offense statute without specifically alleging the public-road element.” Finally, the ICA agreed with the prosecution that the retroactive effect would open the unforeseen possibility of vacating all convictions for DUI for the last 11 years, when the statute went into effect.

The Jurisdictional Problem isn’t a Problem at all. The ICA then tackled the elephant in the room: the jurisdictional hook. According to the ICA, even if Christian characterized the issue as a jurisdictional defect in charging him, it still would not require vacating his conviction. The ICA relied extensively on federal precedent and “principles of finality and fundamental fairness[.]”United States v. Cuch, 79 F.3d 987, 990-91 (10th Cir. 1996). See also United States v. Richardson, 687 F.2d 952, 962 (7th Cir. 1982) (“the tardier the challenge, the more liberally and aggressively have indictments been construed so as to save them.”). Thus, on collateral attack, the ICA held that there was simply not enough exceptional circumstances to overcome the judiciary’s need for finality in judgments.


A Showdown in the Works. The ICA’s ruling on this issue comes at an interesting time. The HSC has been consistently holding this month that OUI charges have to allege a state of mind—even though it’s not an element of the offense—because it is a violation of due process to not include it. It doesn’t matter if it was never raised before trial court and it may not even matter if it wasn’tincluded in an Opening Brief. The HSC majority seems to suggest that this is a jurisdictional matter that can be raised at any time. Now, the ICA has attempted to put a check on this issue and keep things prospective. Of course, Wheeler is different from Nesmith, but the implication is pretty strong. Is this holding consistent with the very string of HSC cases? Stay tuned.

Sunday, December 1, 2013

To Reiterate: You Gotta Include Mens Rea in the DUI Charge

State v. Maharaj (HSC November 18, 2013)
Background. Peter Maharaj was charged with a single count of operating a vehicle while under the influence of an intoxicant, better known as driving under the influence. Specifically, the charge was in violation of HRS § 291E-61(a)(1), which requires proof that Maharaj was operating a vehicle while under the influence of “alcohol in an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty[.]” Maharaj was orally charged in the district court. The charge did not include a state of mind. He was ultimately convicted at trial and then appealed to the ICA. The ICA affirmed after it noted that a transcript for the motion to suppress was never included in the record.

Then, the HSC issued its decision in State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). Maharaj filed a motion for reconsideration on the grounds that the oral charge was defective ala Nesmith. Maharaj argued that the defective charge was a jurisdictional problem that was “not waivable.” The ICA denied the motion and noted that it was simply unclear if this was a jurisdictional issue. Maharaj petitioned for certiorari.

Challenging the Sufficiency of a Charging Instrument. When the defendant challenges the sufficiency of the charge for the first time on appeal, the defendant must “show prejudice or that the indictment cannot within reason be construed to charge a crime.” State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983). Here, the oral charge did not allege a state of mind and it cannot be construed to be a crime. State v. Elliot, 77 Hawaii, 309, 313, 884 P.2d 372, 376 (1994). The analysis was largely based on the precedent in State v. Nesmith, supra, and State v. Apollonio. Accordingly, the case must be dismissed without prejudice. Moreover, the failure to include this “essential fact” renders the charge deficient pursuant to Hawaii Rules of Penal Procedure Rule 7(d).

Chief Justice Recktenwald’s Dissent. The CJ dissented for the exact same reasons he dissented in Apollonio. Justice Nakayama joined (presumably for the exact same reasons she joined in Apollonio.).

Saturday, November 30, 2013

Two Complainants + One Charge = Unanimity Instruction

State v. Getz (HSC November 8, 2013)
Background. Chad Getz was charged with a single count of robbery in the second degree. The charging document alleged that Getz used force against “Angela Rueber and/or Jessie Saffery” and had the “intent to overcome Angela Rueber’s and/or Jessie Saffery’s physical resistance.” At his jury trial, two witnesses testified for the prosecution. Rueber and Saffery were loss prevention personnel at Nordstrum. One night, they saw on the surveillance cameras, Getz walk into the store with an Old Navy bag, take a coach purse and walk out of the “handbag department.” Rueber left the office to confront Getz and remained in contact with Saffery by radio. Rueber saw Getz walking toward the exit doors of Nordstrum. Rueber and a salesperson pursued him. Saffery saw what was happening on the video cameras and went to help Rueber and the salesperson. Getz left the store, and was walking toward a stairwell.

Rueber followed him and identified herself. She also ordered him to come back into the store. Getz turned to her and said “no, I’m not going anywhere with you” and turned and continued walking away. Rueber grabbed the purse, but Getz didn’t let go and kept walking down the stairs. They were playing a tug-of-war with the bag. Rueber positioned herself so that she had one hand on the bag with her other arm blocking the stairwell so Getz couldn’t go through. However, Getz “broke through” by pushing his weight and continued down the stairs. This struggle continued through three flights of stairs. Rueber kept trying to sweep Getz’s feet to make him lose balance, but Getz did not fall. He kept walking. He never punched, kicked, or threatened her. Saffery testified that she caught up to the pair and tried to help Rueber. Eventually, a police officer showed up and ordered Getz to stand down. He was compliant and was arrested at the scene. Saffery testified that before the officer arrived, Getz grabbed her arm, but was not clear when that happened.

The Trial Court Leaves out the Unanimity Instruction. The circuit court instructed the jury that one of the elements it must find beyond a reasonable doubt in robbery was that while committing a theft, the defendant “used his force against Angela Rueber and/or Jessie Saffery, a person who was present, with intent to overcome Angela Rueber and/or Jessie Saffery’s physical resistance[.]” The instruction was given by agreement.

During the settling of the instructions, the circuit court withdrew the following standard jury instruction regarding unanimity:

The law allows the introduction of evidence for the purpose of showing that there is more than one [act] [omission] [item] upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that [the same act] [the same omission] [possession of the same item] has been proved beyond a reasonable doubt.

Getz objected to the withdrawal, but the circuit court explained that “no Arceo is necessary” given these facts. The jury was never instructed that it had to agree unanimously as whom Getz used force against. At closing, the prosecution did not single out Saffery or Rueber. Instead, it simply referred to them collectively. The prosecution even focused on the either-or language in the instructions. The jury found Getz guilty as charged and the circuit court sentenced Getz to ten years prison, but reduced the mandatory minimum (he was a repeat offender) from ten to four years. Getz appealed on the grounds that there was insufficient evidence. The ICA affirmed.

The Right to a Unanimous Guilty Verdict. “[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, sections 5 and 14 of the Hawai'i Constitution.” State v. Arceo, 84 Hawaii 1, 30, 928 P.2d 843, 872 (1996). “[U]nanimity extends to all issues which are left to the jury.” Id. Thus, “an accused in a criminal case can only be convicted upon proof by the prosecution of every material element of the crime charged beyond a reasonable doubt, the constitutional precept also implicates the defendant’s right to due process of law[.]” Id.

And the Instructions that Protect that Right. In Arceo, the HSC held that “when separate and distinct culpable acts are subsumed within a single count . . . any one of which could support a conviction . . . and the defendant is ultimately convicted by a jury of the charged offense, the defendant’s constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the ‘conduct’ element of the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” Id. at 32-33, 928 P.2d at 874-75.

This second requirement has evolved into the Arceo instruction and has been made part of the standard pattern jury instructions. It is intended “to eliminate any ambiguity that might infect the jury’s deliberations respecting the particular conduct in which the defendant is accused of engaging and allegedly constitutes the charged offense.” State v. Valentine, 93 Hawaii 199, 208, 998 P.2d 479, 488 (2000). So the instruction is needed when the prosecution fails to make the election, the prosecution presents proof of two or more separate and distinct culpable acts, and it submits to the jury only one offense was committed. Id.

The Circuit Court Erred in Withdrawing the Instruction. The HSC held that there was a single count of robbery. The charge and the elements for the offense referred to “Rueber and/or Saffery.” There was no election by the prosecution. At closing, the prosecution referred to both of them and treated them collectively. Thus, it is quite possible that some jurors believed that Getz committed the offense against Rueber, while others figured it was Saffery, there might have even been a third group that believed the offense was committed against both of them. This case, according to the HSC, called for the Arceo instruction.

Not a Harmless Error. “[W]hen jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading.” State v. Mark, 123 Hawaii 205, 219, 231 P.3d 478, 492 (2010). The HSC must also consider if “there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.” Arceo, 84 Hawaii at 12, 928 P.2d at 854.

Here, Getz objected to the withdrawal of the unanimity instruction, but did not raise the issue before the ICA. However, the failure to give a required unanimity instruction is considered plain error. Id. at 33, 928 P.2d at 875. The HSC followed suit and found a reasonable possibility that the omission of this instruction contributed to the conviction. The error was not harmless beyond a reasonable doubt and it vacated the judgment and remanded for new trial.

Waiving your Rights is Tougher than you Think

State v. Gomez-Lobato (HSC October 30, 2013)
Background. Luis Gomez-Lobato was charged with a single count of abuse of a family or household member. At his arraignment, Gomez-Lobato was represented by a lawyer and had the assistance of a Spanish interpreter. Gomez-Lobato pleaded not guilty. Counsel requested a recess in order to go over the jury waiver form with the interpreter. After a recess, the family court had a colloquy with Gomez-Lobato through the interpreter. The family court received the form and asked if the initials on it were his? He said yes. The family court asked if he understood what he was doing and signing before initialing the form? He said yes. The family court asked if the form was explained to him in Spanish? Yes. The family court inquired if he discussed this with his attorney. Yes. And Gomez-Lobato had no questions for the judge. Based on those answers, the family court concluded that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a jury trial.

The prosecution served an amended complaint that changed the date of the alleged incident from Sept. 23, to September 25, 2013. No waiver of jury trial took place. After a one-day bench trial, the family court convicted Gomez-Lobato and sentenced him to probation for two years. He appealed and the ICA affirmed. Gomez-Lobato petitioned for certiorari. The prosecution did not respond.

The Right to a Jury Trial and Waiver of it. A criminal defendant has the right to a trial by jury when the potential penalty is imprisonment for at least six months. HRS § 806-60. And—like most rights—the right to a jury trial can be waived. State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). “[W]aiver shall be either by written consent filed in court or by oral consent in open court entered on the record.” Hawaii Rules of Penal Procedure Rule 23(a). In addition to the rule, the court is still obligated to ensure a knowing, intelligent, and voluntary waiver through an on-the-record colloquy. Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293 (1995); State v. Ibuos, 75 Haw. at 121, 857 P.2d at 578.

“Where it appears from the record that a defendant has voluntarily waived a constitutional right to a jury trial, the defendant carries the burden of demonstrating by a preponderance of the evidence that his/her waiver was involuntary.” State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000).

The Rejection of the Ninth Circuit’s Four-Part Colloquy (Again). The Ninth Circuit has held that  when conducting a colloquy about waiving the right to a jury trial, the trial court must inform the defendant that the right to a jury trial encompasses the selection of twelve members of the community, that the defendant may take part in jury selection, a unanimous verdict, and that when there is a waiver of this right, the court alone decides guilt. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997).

The HSC has rejected this as a mandatory part of the colloquy, and held that these four points are not “constitutionally required.” State v. Friedman, 93 Hawaii at 69, 996 P.2d at 274. According to the HSC, the appellate court must simply assess the “totality of the circumstances surrounding the case, taking into account the defendant’s background, experience, and conduct.” Id. at 70, 996 P.2d at 275. The HSC cautioned trial courts and “advised” that these elements be made part of the colloquy, but it has never required it. State v. Myers, 108 Hawaii 300, 307, 119 P.3d 608, 615 (App. 2005); State v. Mitchell, 94 Hawaii 388, 395, 15 P.3d 314, 321 (App. 200).

The Totality-of-the-Circumstances Reigns Supreme . . . Like Friedman, Gomez-Lobato has argued the need to adopt the bright-line rule by the 9th Circuit. The HSC made it clear that this was not the real issue on appeal. The waiver form included the four elements from Duarte-Higareda. The issue, according to the HSC, was whether the combined effect of the colloquy and the form was enough to show a knowing, voluntary, and intelligent waiver. It wasn’t.

. . . and Here Something More was Needed. The HSC explained that the waiver form was interpreted for Gomez-Lobato and the court communicated to him through an interpreter. The language barrier was significant enough to give the family court notice that his waiver “might be less than knowing and intelligent.” Duarte-Higareda, 113 F.3d at 1003. It should have prompted the family court to ask additional questions “to verify that Gomez-Lobato understood the right he was waiving.” Despite the colloquy and the interpreter, the family court’s questions—do you know what you’re “doing and signing?”—were simply too vague to arise to a voluntary, intelligent, and knowing waiver. The family court did not ask Gomze-Lobato if he “truly” understood the right he was waiving. This is only exacerbated by the fact that the record is void of any information about Gomez-Lobato’s background, experience, and conduct. Thus, the HSC vacated the conviction and remanded for a new trial.

A Very Curious Footnote. The HSC noted that in some cases, a defendant may get a jury trial even when the punishment is less than six months. When the maximum penalty does not exceed 30 days, it is presumed to be a petty misdemeanor and there is no jury trial right. State v. Lindsey, 77 Hawaii 162, 165, 883 P.2d 83, 86 (1994). To overcome the presumption, the court must consider (1) the treatment of the offense at common law, (2) the gravity of the offense, and (3) the authorized penalty for the offense and find that the offense “unequivocally demonstrates that society demands that persons charged with the offense at issue be afforded the right to a jury trial.” Id. If the penalty is more than 30 days, but less than 180 days, then no presumption applies, but the three factors still have to be considered. Id. at 86 n. 5, 883 P.2d at 165 n. 5. Has this intriguing little test has probably been applied to perhaps the most feared of all petty misdemeanors—operating under the influence of an intoxicant?

Justice Acoba’s Concurrence. Justice Acoba wrote separately because he believed that under the constitutional right to a jury trial pursuant to Haw. Const. Art. I, Sec. 14, the right can only be waived when the trial court engages in an on-the-record colloquy that includes notice to the defendant of the four elements from Duarte-Higareda.

Monday, November 4, 2013

The Raw Materials of a Defense

State v. Scott (HSC October 16, 2013)
Background. Kevin Scott and his brother Jefferson Scott were indicted separately out of the same incident involving Leif Martin and Kerry Martin. Jefferson Scott was indicted first and convicted of some of the offenses. Months later, Kevin was indicted for committing assault in the second degree upon Leif, two counts of terroristic threatening in the first upon Leif and Kerry and one count of terroristic threatening in the first degree by a common scheme. Kevin demanded a jury trial.

Scott Requests Transcripts, Audio, and Video Records from his Brother’s Trial . . . Before trial, the prosecution filed notice of its intention to use evidence that Jefferson assisted Kevin after Kevin got into a dispute with the Martins. Kevin filed a motion to continue the trial on the grounds that he needed more time to get transcripts from Jefferson’s trial. The transcripts would assist him in his defense. Kevin’s counsel explained that the reason for not getting the transcripts sooner was caused by plea negotiations that fell through. In addition to the motion to continue, Kevin submitted a request for transcripts of Jefferson’s jury trial proceedings, a pretrial motion hearing, and the sentencing hearing. He later requested an audio disc of the same proceedings.

The prosecution objected to the motion and argued that Kevin failed to show that the requested transcripts were necessary to the defense. The circuit court denied the motion to continue on the grounds that Kevin failed to show a need for the transcripts. The request for the transcripts and audio discs were also denied. The administrative judge wrote that Kevin had no constitutional right to free audio or video in this case.

At trial, Kevin was found guilty of assault in the second degree, terroristic threatening in the second degree, and terroristic threatening in the first degree. The circuit court sentenced him to five years prison. The ICA affirmed the conviction.

The Right to a Transcript in Your Prior Proceedings . . . A criminal defendant has the “right to transcripts of prior proceedings.” State v. Mundon, 121 Hawaii 339, 357, 219 P.3d 1126, 1144 (2009). The government “must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.” Britt v. North Carolina, 404 U.S. 226, 227 (1971). The SCOTUS identified two factors in determining this need: (1) the value of the transcript to the defendant; and (2) the availability of alternatives that would fulfill the same function. Id. at 227-28. Then, with regard to the first factor, the SCOTUS held that there is a great value in transcripts of prior proceedings and the defense is not required to establish “need tailoring to the facts of the particular case.” Id. at 228. The HSC applied this test in Mundon and elaborated on the first factor. It held that “there is innate value to a criminal defendant in being able to review transcripts for trial preparation and impeachment purposes such that a defendant need not show a particularized need for such transcripts.” Mundon, 121 Hawaii at 358, 219 P.3d at 1145.

Once Britten . . . Here, the HSC applied this two-part Britt test to his brother’s trial. The HSC specified that the issue pertained to the transcript of the “co-defendant,” which is defined as the “defendants sued in the same litigation or charged with the same crime.” Black’s Law Dictionary 293 (9th ed. 2009). The HSC first explained that the need for these transcripts is worthy and of great value. The same witnesses testified, the charges were similar, and the underlying incident was the same. Moreover, the prosecution had the advantage of prosecuting Jefferson and had the benefit of examining the witnesses and knew about which areas in the testimony were open for impeachment. In light of this innate value, Kevin did not have to show a particularized need for the transcripts or the DVDs from his brother’s trial.

As for the second prong—availability of alternatives—the burden switches to the prosecution. “A defendant who claims the right to a free transcript does not . . . bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.” Britt, 404 U.S. at 230. In other words, the prosecution has to prove that the defendant has adequate alternatives to a written transcript. In Britt, the SCOTUS held that there was an adequate alternative because the defense conceded that the court reporter “would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.” Id. at 229. The HSC in Mundon, however, found a different result because “the transcript must be available to defense counsel prior to trial if it is to be useful as an impeachment and trial preparation tool.” 121 Hawaii at 358, 219 P.3d at 1145. Here, the HSC held that no alternatives were presented to the defense.

An Open Question on the Remedy. The HSC next examined what to do now that it held that the court erred in precluding transcripts for Kevin. In Mundon the HSC stated that the defendant “was not required to show that he was prejudiced by proceeding to trial without the written transcripts.” 121 Hawaii at 358, 219 P.3d at 1145. Curiously, the HSC noted that this “appears to require automatic reversal when an indigent defendant is wrongfully denied the transcript of his or her prior proceeding.” It then noted that courts of other jurisdictions have held that the wrongful denial of an indigent defendant’s motion for a free transcript requires automatic reversal. See People v. Hosner, 538 P.2d 1141, 1148 (Cal. 1975) (en banc); Kennedy v. Lockyer, 379 F.3d 1041, 1053 (9th Cir. 2004); Turner v. Malley, 613 F.2d 264, 266-67 (10th Cir. 1979); United States v. Pulido, 879 F.2d 1255, 1259 (5th Cir. 1989); United States v. Talbert, 706 F.2d 464, 471 (4th Cir. 1983).

Then again, when it comes to the co-defendant’s transcript, some courts have applied the harmless error standard. State v. Razinha, 599 P.2d 808, 811-12 (Ariz. Ct. App. 1979); United States v. Bamberger, 482 F.2d 166, 168-69 (9th Cir. 1973).

The HSC dodged this question and held that under either standard, the case will be remanded for a new trial—be it automatic reversal or harmless error. The HSC noted that denying the requested transcripts was not harmless beyond a reasonable doubt because the Scott brothers were codefendants with charges arising from the identical incident that involved the same witnesses. This was enough to contribute to Kevin’s conviction.


Justice Acoba’s Concurrence. Justice Acoba wrote separately clearly rejected the harmless error approach for co-defendants’ transcripts and would have adopted the automatic reversal standard that “appears” to be in effect for requests for the defendant’s own transcripts.

Wednesday, October 30, 2013

HSC Drops Some (Personal) Knowledge on HPD

State v. Apollonio (HSC October 10, 2013)
Background. Ricardo Apollonio was charged with excessive speeding. HRS § 291C-105(a)(1). The complaint and oral arraignment failed to allege the requisite state of mind. In other words, there was nothing in the charging instrument indicating that the conduct was done intentionally, knowingly, or recklessly. At trial, the HPD officer testified that he cited Apollonio for excessive speeding after using the LTI 20-20 laser gun (check itout here).

The officer testified that he was using the laser gun and that he was trained to operate the gun. He said that his training consisted of “class work, going over the operator’s manual, and hands-on time with the laser itself.” His trainer was another HPD officer. The officer testified that the manual was provided by the manufacturer and Apollonio objected on the grounds that the officer lacked the personal knowledge and hearsay. The district court overruled the objection on the grounds that “those issues have been resolved in some other case.”

According to the officer, the manual identified four tests necessary to establish that the laser gun was working properly: the self-test, the display test, the scope alignment test, and the delta distance test. All four were done on the date in question and according to those tests, the gun was working properly. Then the officer testified that he stood on Kamehameha Highway in an area where the speed limit was 35 mph. He used the laser gun on Apollonio’s vehicle and clocked him in at 76 mph. On cross-examination, the officer admitted that during his training there were only HPD officers and he had no personal knowledge if anyone from the manufacturer of the laser gun was there.

Apollonio’s motion to strike the officer’s testimony based on a lack of foundation was denied. The district court found him guilty. Apollonio appealed. The ICA held that the foundation was adequate and affirmed. Apollonio petitioned for certiorari and for the first time raised the sufficiency of the charge.

The Defective Charge Warrants Remand for New Trial . . . First off, the HSC held that the charge was defective for the failure to include mens rea. The HSC made it clear that a knowing, intentional, or reckless state of mind is required in excessive speeding prosecutions. State v. Nesmith, 127 Hawaii 48, 56, 276 P.3d 617, 625 (2012). The HSC took the opportunity to make it clear that when the charge fails to include the state of mind, it simply cannot be construed to have reasonably stated an offense and so it must be dismissed without prejudice. Id. See also State v. Gonzalez, 128 Hawaii 314, 324, 288 P.3d 788, 798 (2012).

The Foundation Needed Before the Results of the Laser Gun can Come in. Before the results of the laser gun comes in at trial, the prosecution must show (1) that the accuracy of the laser gun was tested according to the procedures recommended by the manufacturer and (2) “the nature and extent of an officer’s training in the operation of a laser gun [met] the requirements indicated by the manufacturer.” State v. Assaye, 121 Hawaii 204, 213-215, 217, 216 P.3d 1227, 1236-1238 (2009).

Nothing Personal . . . The HSC examined whether it was enough for the officer to assume that the manual came from LTI. “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” HRE Rule 602. Personal knowledge means that the witness “perceived the event about which he testifies.” Commentary, HRE Rule 602. “[W]itnesses may not testify based on ‘guesswork’ or ‘speculation,’ such as when the witness concludes that a fact ‘must have’ been true.” Addison M. Bowman, Hawaii Rules of Evidence Manual § 602-1(5).

The officer’s testimony that the manual came from the manufacturer was based on the kind of “guesswork” and “speculation” Prof. Bowman was cautioning against. The problem, according to the HSC, was that the only people at the officer’s training were other officers. Nobody from LTI gave him the manual. He never met an LTI representative and he did not know personally if anyone from LTI provided these manuals to HPD. This was a lack of personal knowledge.

Appearances are Deceiving. On top of that, the officer’s testimony about the appearance of the manual did not arise to personal knowledge. The officer may have testified that the manual cover read “LTI 20-20 Operator’s Manual,” but that alone did not connect it to LTI. There was no evidence that LTI produced the manual or that the manual was written by anyone at LTI. Thus, the district court erred in finding sufficient evidence linking the manual to the manufacturer.

The Second Prong: Manufacturer-Approved Training, not just Training. The HSC also rejected the district court’s finding under the second prong too. Under this prong, the prosecution must establish that the officer’s training satisfied the laser manufacturer’s requirements. Assaye, 121 Hawaii at 215, 216 P.3d at 1238. According to the HSC, this requires a showing of both (1) the training requirements set forth by the manufacturer, and (2) the officer was actually trained by the operator of the laser gun. It is not enough for the officer to describe his training. There has to be a link to the manufacturer and none was presented here.

Chief Justice Recktenwald’s Dissent. The CJ agreed with the majority that the judgment must be vacated and remanded to be dismissed without prejudice because of the lack of mens rea. The CJ believed that when the challenges the charge for the first time on appeal, the appellate court’s review should be limited to plain error. That means that the appellant has to show prejudice by the error. The CJ pointed out that the previous cases in Nesmith and Gonzalez, the defendants challenged the sufficiency of the charge before the trial court. Here, Apollonio waited until after the district court convicted him and after the ICA affirmed. Apollonio raised the issue only for the first time in his petition for certiorari. Because he waited so long, the CJ would have construed the charge liberally under State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983) and State v. Wells, 78 Hawaii 373, 381, 894 P.2d 70, 78 (1985). Under that liberal construction, the CJ would have found the charge sufficient. He also believed that a deficient charge is not a jurisdictional matter thereby allowing the plain error rule. Justice Nakayama joined.

The Big Concurrence. The CJ (and Justice Nakayama) note that they agree with the majority about the foundation and it should be remanded for a new trial.

Friday, October 11, 2013

Failure to Clarify Theory of OUI Meant no Theory can Proceed on Remand

State v. Nakano (HSC October 9, 2013)
Background. Daniel Nakano was charged with operating a vehicle under the influence of an intoxicant. HRS § 291E-61. The complaint alleged that Nakano either committed the offense by having an amount sufficient to impair his normal faculties or guard against casualty in violation of HRS § 291E-61(a)(1) and or by operating a vehicle with a BAC of 0.08 or more in his blood or breath in violation of (a)(3). The complaint did not plead any state of mind. Nakano and the prosecution entered a plea agreement. Nakano requested a conditional plea allowing him to plead no contest to HRS § 291E-61(a)(1) and challenge the sufficiency of the plea on appeal. There was nothing in the change-of-plea form or during the colloquy that indicated if the plea included the other theory under (a)(3). The prosecution agreed to the conditional plea and the district court sentenced Nakano, but stayed it pending appeal.

On appeal, the ICA held that pursuant to State v. Nesmith, 127 Hawai'i 48, 276P.3d 617 (2012), the (a)(1) theory. The ICA vacated the judgment and then held on remand that the State could prosecute Nakano for violation of (a)(3). Nakano moved to reconsider on the grounds that he never pleaded no contest under the (a)(3) theory and the ICA denied the motion in part. Nakano petitioned for cert.

Have an A-1 Day. The HSC first held that the ICA correctly found a Nesmith violation. The complaint did not include a state of mind for the (a)(1) violation—operating with “an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty.” That rendered the charge insufficient and must be dismissed without prejudice. State v. Spearman, 129 Hawaii 146,151-52, 296 P.3d 359, 364-65 (2013). The issue for the HSC is whether the prosecution could move forward on remand with the (a)(3) violation. It held it could not without breaching the plea agreement.

A Plea Agreement is a Contract. “A plea agreement is essentially a contract entered into between the State and the defendant, in which the defendant agrees to plead guilty or no contest to a charge and to forego certain constitutional rights (including the right to trial) in exchange for which the State promises some form of leniency or cooperation in prosecution.” State v. Adams, 76 Hawaii 408, 412, 879 P.2d 513, 517 (1994). The prosecution “is bound by the terms of a plea agreement which serves as the inducement or consideration for a defendant’s guilty or no-contest plea.” State v. Abbott, 79 Hawaii 317, 319, 901 P.2d 1296, 1298 (App. 1995). And when the plea is the result of a promise by the prosecution “so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).

The Prosecution has to Uphold its End of it. Neither the change-of-plea form nor the oral colloquy indicated if Nakano was pleading no contest for just the (a)(1) method or the (a)(3) method or both. Nonetheless, the prosecution agreed to conditional plea pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 11(a)(2). Because the record did not have any indication if the prosecution intended to give up the proceedings under (a)(3), that term of the plea agreement had to be construed by the HSC.


According to the HSC, this was “at the very least” an ambiguous term. The “plea agreement containing terms that are ambiguous or reasonably susceptible to different interpretations is strictly construed in favor of the defendant.” State v. Abbott, 79 Hawaii at 320, 901 P.2d at 1299. Here, the HSC held that the agreement prohibited the State from going forth on remand with an (a)(3) prosecution. According to the HSC, if it were to allow the State to proceed on the (a)(3) prosecution, it would not fulfill the promise it made to Nakano. A breached plea agreement is more than a civil violation. It “implicates due process, and the interests of justice.” State v. Miller,122 Hawaii 92, 101, 223 P.3d 157, 166 (2010). And so, on remand, the State cannot prosecute Nakano on the (a)(3) violation.

Saturday, September 7, 2013

The Straight Dope on Restitution

OVERRULED!

State v. DeMello (ICA August 27, 2013)
Background. Lawrence DeMello was charged with harassment and simple trespass. At trial, Alex Kelekoma testified that he was married to Carleen Kelekoma. His ex-wife, Cherilyn Kelekoma, lived with her boyfriend, DeMello. One day there was a dispute over picking up Alex’s son between the couples. Alex called DeMello to talk about it. DeMello was argumentative, but calm. Carleen took the phone and started talking to DeMello, and according to Carleen, DeMello hung up on her. Then Cherilyn called and Carleen answered the phone. Carleen said to her that she didn’t do anything to him. A few minutes later, Alex saw DeMello in front of his house. Alex went outside, DeMello hopped the gate. Alex testified that DeMello approached Carleen and was very aggressive. Cherilyn showed up and approached Carleen. It looked to Alex like Cherilyn was going to attack Carleen so he got in between the women. Cherilyn was still trying to go for Carleen and all three fell on the lawn. Alex testified that at that point, DeMello grabbed Carleen’s hair and dragged her about ten feet across the lawn. Alex shoved DeMello away. According to Alex, DeMello started bouncing around saying, “[d]on’t put your hands on me. You know, like I will knock you out.” Alex told them to leave, but they wouldn’t.
Calreen testified that she felt excruciated pain after she fell on the lawn like her hair was being pulled. She also felt pain in her neck as it jerked back and forth then she testified that she lost consciousness. When she came to, she was under the lemon tree having a hard time breathing and feeling dizzy. She was still in pain. She told DeMello and Cherilyn to get off her property, but they wouldn’t leave. Carleen went inside the house and called the police. The police arrived to see DeMello yelling at the Kelekomas.
Cherilyn testified that Carleen attacked her first and continued to attack her even when Alex intervened. She testified that Carleen grabbed her hair before they all fell to the ground. Cherilyn testified that although she didn’t see DeMello grab Carleen’s hair, he might have done that to get Carleen to let go of her own hair. Cherilyn also testified that no one told them to leave the property.
DeMello testified that Alex invited him onto the property so he hopped the gate and came on like he normally did in the past. DeMello testified that Carleen came up to him aggressively and got in his face so he put up his hands. When Cherilyn came over, Carleen started attacking her. DeMello testified that Alex never fell to the ground with the women. He ran off into a corner. DeMello said that Carleen was pulling Cherilyn’s hair so he tried to pull her off. His hand got tangled in her hair, and he pulled her hair to protect Cherilyn. He told Carleen to let her go.
The district court found DeMello guilty as charged and expressly rejected the defense-of-others defense. According to the district court, there was no reason to pull Carleen’s hair to protect Cherilyn because Alex was in the middle. The district court sentenced DeMello to jail for 30 days and anger management classes. He also fined him $100 for the simple trespass. Carleen later claimed medical bills and lost wages as restitution. Carleen claimed that the incident exacerbated a pre-existing neck injury from a dirt bike accident. The district court awarded more than $3,000 in medical bills and lost wages. DeMello appealed.
The Defense-of-Others Defense Properly Rejected. The ICA held that the district court did not err in rejecting DeMello’s defense-of-others justification under HRS § 703-305. “The prosecution disproves a justification defense beyond a reasonable doubt when the trial court believes the prosecution’s case and disbelieves the defendant’s case.” State v. Juhn, 83 Hawai'i 472, 483, 927 P.2d 1355, 1366 (1996). That, according to the ICA, is exactly what happened here. The district court obviously credited Carleen and Alex’s version of what happened because it found that Alex was between the women. DeMello testified that Alex was in the corner. “Verdicts based on conflicting evidence will not be set aside where there is substantial evidence to support the trier of fact’s findings.” State v. Sua, 92 Hawai'i 61, 69, 987 P.2d 959, 967 (1999).
But the Sentence is Unlawful. Harassment is a petty misdemeanor. HRS § 711-1106. The maximum sentence for a petty misdemeanor is 30 days in jail. HRS § 706-663. Nothing in the statute authorizes the district court to order anger management or any other treatment program. The ICA noted, however, that HRS § 706-624(2)(j) allows the district court to place a defendant on probation and order mental health treatment. But that would mean there can be no thirty-day jail term. The prosecution conceded this error.
Restitution is Required when Requested by Victim. “The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim.” HRS § 706-646(2). According to the ICA, the statute plainly and unambiguously requires restitution when the victim requests it and can show losses caused by the defendant. “[A] defendant cannot be ordered to pay restitution unless he caused a victim’s losses.” State v. Domingo, 121 Hawai'i 191, 194, 216 P.3d 117, 120 (App. 2009). Here, the ICA held that the district court had sufficient evidence to find causation for the medical bills and it did not need to apportion what he caused and what Cherilyn might have caused from the hair pulling.
Wage Losses are not Part of a Restitution Award. The ICA agreed with DeMello that the $1,155 in lost income cannot be part of the restitution award. The ICA began by noting that HRS § 706-646 does not expressly prohibit or allow lost wages. However, the legislative history shows that lost wages were considered, but rejected by the House. H. Stand. Comm. Rep. No. 683-98, 1998 Hse Journal at 1305-06. It never made it back into the legislation. Thus, the ICA held that the omission was intentional and HRS § 706-646 does not authorize lost wages.
Preexisting Injury Complicates Restitution Findings. Restitution is limited to “reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense[.]” HRS § 706-646(2). That means there must be a nexus between the defendant’s conduct and the victim’s loss. See Domingo, supra. The ICA relied on cases from other jurisdictions that have dealt with problems in causation for restitution. The ICA held that “where there is more than one possible cause for the loss, the court must determine whether the evidence supports the finding that the defendant’s conduct caused or contributed to the victim’s loss.” See State v. Gibson, 160 N.H. 445, 449, 999 A.2d 240, 243 (2010); Commonwealth v. Balisteri, 329 Pa. Super. 148, 155, 478 A.2d 5, 9 (1984).
In this case, the district court found that the DeMello exacerbated a preexisting injury, but found that apportionment was impossible because there was no expert testimony or medical opinion presented by the prosecution. This conclusion, according to the ICA, is “at odds” with the imposition of the award. The ICA vacated the entire award and remanded for a further evidentiary hearing, if necessary.
The Prosecution must Prove it by Preponderance of Evidence. The burden of proof has never been expressly established in Hawai'i. The ICA took this opportunity to lay it out clearly and succinctly. Restitution is “quasi-civil” and is “designed to compensate the victim as an adjunct of punishment.” State v. Feliciano, 103 Hawai'i 269, 272, 81 P.3d 1184, 1187 (2003). It is also intended to be an expedient method of compensation. Stand. Comm. Rep. 683-98, 1998 Hse. Journal at 1305.
Because it is quasi-civil, the ICA held that the prosecution has burden of proof to show causation by a preponderance of the evidence. The ICA noted that other jurisdictions concur. In re William L., 211 Ariz. 236, 238, 119 P.3d 1039, 1041 (2005); People v. Keichler, 129 Cal. App. 4th 1039, 1045, 29 Cal. Rptr. 3d 120, 124 (2005); People v. Carpenter, 885 P.2d 334, 336 (Colo. App. 1994); Winborn v. State, 625 So.2d 977, 977 (Fla. App. 1993); Lawrenz v. State, 194 Ga. App. 724, 724, 391 S.E.2d 703, 704 (1990); Commonwealth v. Palmer, 61 Mass. App. Ct. 230, 233, 808 N.E.2d 848, 850 (2004); State v. Kleppe, 800 N.W.2d 311, 319 (N.D. 2011); McCullough v. Commonwealth, 38 Va. App. 811, 816-17, 568 S.E.2d 449, 451 (2002); State v. Kinneman, 122 Wash. App. 850, 860, 95 P.3d 1277, 1283 (2004); State v. Shannon, 155 N.H. 135, 139, 920 A.2d 1163, 1166 (2007).
The ICA held that the initial burden is on the prosecution to make a prima facie showing for the restitution claim, but the defendant contesting the amount must "come forward with evidence to support his or her challenge."

Saturday, August 31, 2013

Weak, Inconclusive Evidence of Defense may not Require an Instruction

State v. Taylor (August 2, 2013)
Background. Pamela Taylor was charged with theft in the second degree and unauthorized practice of law. It was alleged that Taylor acquired $7,000 from Mariko Bereday as a retainer for legal services thereby committing theft by deception. At trial, Bereday testified that she heard that Taylor was a lawyer from a friend and went to see her. Bereday said that Taylor told her she used to be a federal public defender and was now working at a 35-person law firm. Taylor asked for a retainer of $30,000, but Bereday could only afford $7,000. Taylor received a check for $7,000 and she tried to cash it. Bereday asked why she tried to cash it and Taylor said she had to ensure that the check was “good.”
Bereday got suspicious and went to the bank where she learned that Ismael Serna Lara was on the payee line, not Taylor. She also learned that Taylor was not a lawyer and confronted her about it. Taylor brought her back a check for $7,000, but according to Bereday, it was a bogus and she never got her money back.
Taylor testified at trial. She said that she was working with Lara and Damon Roth, whom she assumed were lawyers at a firm called Legal Associate Services, Inc., LLC. She testified that Bereday spoke with Roth many times on the phone and that Roth directed Taylor and Lara to try and cash the check. They tried at the Central Pacific Bank in Kapolei, but they wouldn’t do it. They tried again at the Kahala branch and they did. Taylor never touched the money. Lara took it, and she never saw it again.
According to Taylor, Lara told her to visit Bereday again to give her the receipt and other paperwork. When she got there, Bereday was upset and demanded a refund. Lara got mad too when he learned of Bereday’s demand, and wrote up a “refund check” to give to Bereday. Taylor testified that she believed Roth and Lara were attorneys and that back in 2006, they hired her to do some clerical work.
All jury instructions were given by agreement. No mistake-of-fact instruction had been given to the jury. The jury found Taylor guilty as charged. She was sentenced to five years prison and ordered to pay $7,000 in restitution. Taylor appealed. The ICA reversed the judgment on the grounds that the trial court erred in instructing the jury sua sponte about the mistake-of-fact defense. The government petitioned for certiorari.
Theft by Deception and the Mistake-of-Fact Defense. A person commits theft if the person “obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property.” HRS § 708-830(2). If the value of the property exceeds $300, it’s a felony. HRS § 708-831(1)(b). “Deception” means knowingly creating or confirming “another’s impression which is false and which the defendant does not believe to be true,” failing “to correct a false impression which the previously has created or confirmed,” or promising “performance which the person does not intend to perform or knows will not be performed[.]” HRS § 708-800.
Mistaken facts on the part of the defendant, however, is a defense to theft by deception. “[I]t is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if: (1) The ignorance or mistake negatives the state of mind required to establish an element of the offense; or (2) The law defining the offense or a law related thereto provides that the state of mind established by such ignorance or mistake constitutes a defense.” HRS § 702-218.
Pulling the Stenger Out . . . The question in this case is whether the trial court erred in instructing the jury about this defense when neither party asked for it. A badly-divided HSC confronted a similar issue in State v. Stenger, 122 Hawai'i 271, 226 P.3d 441 (2010). According to the HSC, the Stenger plurality held that when there is an instruction requested by the defendant and the instruction is erroneous, the trial court has a duty to provide a correct instruction to the jury.
The HSC noted that in the three years since Stenger, the case has been improperly read to mean that the trial court has a duty to provide instructions that were never requested so long as the evidence would have supported such an instruction.
Rethinking Nichols. Fortunately for Taylor, there’s State v. Nichols, 111 Hawai'i 327, 141 P.3d 974 (D). There, the HSC held that even if the defendant did not raise the instructional issue before the trial court, “once instructional error is demonstrated [on appeal], we will vacate, without regard to whether timely objection was made, if there was a reasonable possibility that the error contributed to the defendant’s conviction[.]” Id. at 337, 141 P.3d at 984. The Nichols court explained that the failure to raise the issue before the trial court usually would trigger a plain-error analysis after the error was raised on appeal for the first time. That would render the additional harmless error analysis superfluous. Thus, the Nichols court reasoned that a single, harmless error analysis was sufficient.
The HSC observed that even though the Nichols court claimed to have merged the two standards, it still did “a two-step, plain-error-then-harmless error review in analyzing instructional error.” The HSC synthesized the Nichols analysis. First, the defense has to overcome the presumption that the instructions were correct by finding instructional error. Id. at 337, n. 6, 141 P.3d at 984, n. 6. Then, the defendant has to show that the error was not harmless beyond a reasonable doubt (i.e., there was a reasonable possibility that the error contributed to the conviction). Id. at 337, 141 P.3d at 984. And so, when the defendant fails to object to instructional error and raises it for the first time on appeal, the plain-error standard still applies. See State v. Kikuta, 125 Hawai'i 78, 95, 253 P.3d 639, 656 (2011). Plain error arises when “the substantial rights of the defendant have been affected adversely[.]” Id.
A Very Specific Holding: Credible Evidence Test. After sorting out those standards, the HSC a precise holding and test. When a jury instruction for the mistake-of-fact defense was never requested by the defendant and was never given by the trial court, plain error affecting substantial rights of the defendant arises “if the defendant had met his or her initial burden at trial of adducing credible evidence of facts constituting the defense (or those facts are supplied by the prosecution’s witnesses).” Credible evidence is evidence that would allow “a reasonable juror [to] harbor reasonable doubt[.]” Here, Taylor failed to meet this burden at trial. According to the HSC, her testimony wasn’t enough to arise to plain error.
Plain Error v. Error. What if Taylor had requested the instruction and the trial court refused to give it? That would suggest that plain error would not apply and it would have been a much easier standard for her on appeal. In that case, it would seem to preserve the very favorable rule that the “defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence . . . no matter how weak.” State v. Locquiao, 100 Hawai'i 195, 205-06, 58 P.3d 1242, 1252-53 (2002).
Justice Acoba’s Dissent. Justice Acoba raised three objections. First, Justice Acoba believed that “if weak, inconclusive, or unsatisfactory evidence going to a particular defense is adduced . . ., the court must instruction the jury on that defense, even if the defendant does not request such an instruction, in order that the jury may arrive at an informed and just verdict.”
Justice Acoba also took issue with the holding. The credible-evidence test “elevates trial strategy over the public interest in arriving at an even result, shifts the law-giving function of the judge to the parties, encroaches on the jury’s role, and contravenes the defendant’s constitutional right to a jury trial, the right to an impartial judge, the presumption of innocence, and the right to a fair trial.”

Finally, Justice Acoba disagreed with the majority’s take on Nichols and believed that the two-step process was unnecessary. Once the defendant finds instructional error, the appellate court should only consider whether it was harmless.