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.).