Counsel can Urge Jury to Walk in Defendant’s Shoes (for Purposes of Choice-of-Evils Defense)

State v. Kauhane (HSC November 12, 2019)

Background. Fifteen to twenty protestors objected to the construction of a large telescope at the summit of Haleakala on Maui by standing shoulder to shoulder on the roadway in 2015. The protestors were blocking the roadway to prevent a convoy of construction vehicles and equipment heading to the summit. When the initial group of protestors were cleared, seven sat in the middle of the roadway chanting and praying. Keith Kauhane was among the Haleakala seven arrested.

Kauhane was served a criminal complaint alleging the offense of Obstructing in violation of HRS § 711-1105(1)(a). Here’s the language of the charge:

That on or about the 20^th day of August, 2015, in the County of Maui, State of Hawaii, KEITH KAUHANE, whether alone or with others and having no legal privilege to do so, did knowingly or recklessly persist to obstruct any highway or public passage, after a warning by a law enforcement officer to move to prevent or to cease such obstruction, thereby committing the offense of Obstructing in violation of Section 711-1105(1)(a) of the Hawaii Revised Statutes.

The complaint did not include the statutory definition of the word “obstructs,” which means “render[] impassable without unreasonable inconvenience or hazard.” HRS § 711-1100.

At trial, the prosecution presented evidence from Captain Clyde Holokai. Capt. Holokai testified that the protestors blocked the road and were repeatedly told by the police to get off the road. They did not. Officers had to “physically pry” the sitting protestors to clear the road. On cross-examination Capt. Holokai testified it took about five minutes to remove Kauhane. The defense called Professor Hokulani Holt-Padilla, who testified as an expert in Hawaiian custom, culture, history, and religion. Prof. Holt-Padilla explained that Haleakala is one of “most significant cultural and religious sites on Maui” for Native Hawaiians. The telescope is not only a desecration and affront to Hawaiian culture, but many Native Hawaiians would be “emotionally, spiritually, and physically” affected.

Kauhane testified that the construction caused him “serious emotional harm” and that as long as the telescope was being built he would continued to be harmed. He testified he went to Crater Road to pray and protest the construction. He admitted that he knew he would be arrested and that he was stopping the construction by blocking the road.

The court instructed the jury about the offense of Obstruction and included the definition of the word “obstruct.” The court also instructed the jury the choice-of-evils defense pursuant to HRS § 703-302. The Honorable Judge Richard T. Bissen, Jr. presided.

During his closing argument, defense counsel argued Kauhane was justified because it was the lesser of two evils:

[W]eigh it out. What’s the harm versus what is he being imminently harmed with? What’s the difference? You’ve got to weigh it out, and you as jurors, I hope, will weigh in favor of my client and find that he believed that there was going to be imminent harm. You know, we all experience . . . pain in various ways. We al experience mental pain and grief and anxiety in various ways. Pain, grief, and anxiety, that equals harm. It’s the same thing. And again, the only way that you can really judge as jurors the vastness of the harm, the grief, the pain, the anxiety is to walk in [Kauhane’s] shoes.

The prosecutor immediately objected to this last line on the grounds that it violated “the golden rule.” The objection was sustained. Defense counsel rephrased and urged jurors to “find that [Kauhane] was justified to be on the mountain at that point in time because he believed he was going to be suffering imminent harm from the desecration and the continuing desecration of Haleakala.” Kauhane was found guilty and sentenced to six months probation. He appealed.

The ICA vacated the judgment on the grounds that the circuit court failed to instruct the jury about a mitigating defense to obstruction. Kauhane petitioned for certiorari to address two other issues.

The Complaint was Defective for Failing to Include the Definition of the “Obstructs.” When the defense timely challenges the sufficiency of a complaint, the charge may only be upheld when (1) it contains the elements the offense; (2) it sufficiently apprises the defendant of what the defendant must be prepared to meet; and (3) the requisite states of mind. State v. Mita, 124 Hawaii 385, 390, 245 P.3d 458, 463 (2010); State v. Gonzalez, 128 Hawaii 314, 288 P.3d 788 (2012). But when the defendant challenges the complaint for the first time on appeal, the appellate court applies a more liberal reading of the complaint. State v. Merino, 81 Hawaii 198, 213, 915 P.2d 672, 687 (1996). Under this standard, charges are presumed valid and will not be overturned unless the defendant can show (1) that the charge cannot reasonably be construed to allege a crime; and (2) that the defendant was prejudiced. State v. Motta, 66 Haw. 89, 91 657 P.2d 1019, 1020, (1983). The charge must include a statutory definition whenever the definition does not comport with the commonly-understood meaning of the word. State v. Wheeler, 121 Hawaii 383, 394, 219 P.3d 1170, 1181 (2009).

Obstructing requires a person to “obstruct” any highway or public passage. HRS § 711-1105(1)(a). “Obstructs” is defined as “render[ing] impassable without unreasonable inconvenience or hazard.” HRS § 711-1100. According to the HSC, the failure to include this statutory definition rendered the complaint defective. The statutory term departs from the ordinary meaning of the word obstruct, which is any kind of blocking or stopping. The statutory term is more specific because it requires impassability “without unreasonable inconvenience or hazard.”

The HSC held that under the Wells-Motta test, the complaint failed to include the statutory definition and was thus defective and the complaint should have been dismissed.

No “Golden Rule” Violation Took Place. The HSC agreed with the ICA that the circuit court erred in sustaining the prosecution’s “golden rule” objection. The improper argument usually arises when “a lawyer asks the juror to reach a verdict by imagining themselves or someone they care about in the place of the injured plaintiff or crime victim.” Black’s Law Dictionary, 807 (10th ed. 2014). The argument is condemned because it invites juror to advocate for a party or victim and ignore the duty to exercise reasonable judgment. See Ditto v. McCurdy, 86 Hawaii 93, 127, 947 P.2d 961, 995 (App. 1997).

Both the ICA and the HSC agreed that this is not what we have here. Counsel urged jurors to “walk in the shoes” of the defendant for purposes of the choice-of-evils defense. This is not the same as urging jurors to consider the place of the civil plaintiff or victim. And so the circuit court erred in sustaining the objection. The HSC, however, disagreed with the ICA that this was harmless error.