When the Defense Stipulates to a Prior Conviction, the Court Cannot say no
State v. Souza (HSC May 30, 2018)
Background. Tracy Souza was charged with place to keep an unloaded firearm other than pistols or revolvers, and the felon-in-possession of a firearm offense. Before trial, the court held a hearing. Both the prosecution and Souza proposed written stipulations about the prior felony conviction in the second charge. The parties did not agree as to which stipulation should be read to the jury. The circuit court maintained that because there was no agreement as to the stipulated language, the prosecution “would be perfectly within its right to call whatever witnesses they felt are necessary and relevant . . . to establish that element of a prior conviction.” The circuit court asked if Souza wished to do that or if he wished to accept the prosecution’s version of the stipulation. Souza objected, but ultimately stipulated to the prior conviction element and waived his right to have that element proven to a jury beyond a reasonable doubt.
At trial witnesses testified that Souza was camped in a homeless encampment in a wooded area near the Likelike Highway. Witnesses testified that he was seen near a rifle that was later discovered to be unloaded. At the end of the prosecution’s case in chief, the circuit court informed the jury that the parties reached a stipulation and read a series of stipulated facts.
The facts included that Souza had been convicted of a felony offense, that he has not been pardoned, that as a result of the conviction he cannot own or possess firearms and ammunition, and that he knew he was prohibited from owning or possessing firearms and ammunition. The court further explained that one of the elements is the prior conviction element that that the parties agreed that Souza had a prior conviction and the jury must accept it as proven beyond a reasonable doubt. Souza was found guilty as charged. He appealed to the ICA, which affirmed.
It’s not Really a “Stipulation.” When the defendant stipulates that an essential element has been proven beyond a reasonable doubt, “the court must accept [the] stipulation.” State v. Murray, 116 Hawaii 3, 21, 169 P.3d 955, 973 (2007). Once the stipulation has been accepted by the court, the court must instruct the jury that the defendant has stipulated to the prior conviction element and make it clear that the element has been proven beyond a reasonable doubt. Id. “The instruction must be carefully crafted to omit any reference to the ‘name or nature’” of the prior conviction and “preclude any mention of the nature of [the defendant’s] prior convictions at any point during the trial.” Id.
The HSC held that the circuit court erred in its refusal to accept Souza’s stipulation. The “circuit court declined to accept Souza’s stipulation on its own, without the State’s consent—a ruling that Murray squarely forecloses.”
So a Murray stipulation isn’t really a stipulation. A stipulation is an agreement between the parties. When the defendant concedes an element, it must be accepted and it is error for the circuit court to refuse the defendant and threaten to have the prosecution call witnesses and establish with evidence the element that is being conceded.
The Stipulation Itself Exceeded the Bounds of Murray. The HSC also took issue with the prosecution’s stipulation language. When the defendant stipulates to the prior conviction element, the court must only inform the jury that the defendant (1) had been convicted of a felony offense at the time of the incident; and (2) the defendant knew he had been convicted of a felony offense at the time of the incident. All of the other facts—that he knew he could not possess or own a firearm and that he was legally precluded from doing so—fall beyond the scope of the Murray stipulation. The HSC held that stipulating to these matters bled over into other essential elements that were not conceded and increased the likelihood that the jury would decide on an improper basis.
The Error is not Harmless Beyond a Reasonable Doubt. An error is not harmless if “there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Mundon, 121 Hawaii 339, 368, 219 P.3d 1126, 1155 (2009). An error is harmless if “there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt.” State v. Rivera, 62 Haw. 120, 127, 612 P.2d 526, 532 (1980). This is not one of those cases. The HSC held that the evidence against Souza was not overwhelming and that the stipulation read to the jury created negative inferences. The fact that he has a felony conviction and that he was not pardoned allowed the jury to infer that he—unlike Scooter Libby, Dinesh D’Souza, and Joe Arapaio—was not worthy of a pardon. And so the HSC vacated the judgment and remanded for new trial.
Justice Nakayama’s Concurrence and Dissent. Justice Nakayama concurred with the majority—McKenna, Pollack, and Wilson—that the circuit court erred in refusing to accept Souza’s stipulation and making him choose between the erroneous language of the prosecution or no stipulation at all. She wrote separately because she did not believe that the error was harmless beyond a reasonable doubt. The case hinged on credibility issues with the witnesses. She believed there was no reasonable possibility that the error might have contributed to the conviction. Chief Justice Recktenwald joined.