Court plainly erred in not giving Sheffield instruction—before Sheffield was published

 State v. Ishimine (HSC August 4, 2022)

Background. Lorrin Ishimine was charged with kidnapping in violation of HRS § 707-720(d)(1), two counts of felony abuse, and one count of misdemeanor abuse. The prosecution dropped all abuse counts before trial. He was tried with a single count of kidnapping.

 

At trial, Officer Victor Santana testified he was off duty taking a nap at his house when he heard a vehicle speeding down the street. He looked out the window and saw the vehicle pull into a two-story house across the street. He saw a man get out of the vehicle yelling and trying to get someone out of the vehicle. Officer Santana got dressed and went back to the window. This time he saw the man grabbing a woman from behind and dragging her up the stairs into the house. The woman was screaming, kicking her feet, and trying to get away. It lasted about a minute. Officer Santana called the police.

 

Officer Keola Wilhelm testified that he responded to the call and went to the house. A woman answered the door and said no one else was home. Eventually, she allowed the police into the house and took them to a locked bedroom door. After knocking and announcing three separate times, the police took the door down. They saw Ishimine holding a woman down and covering her mouth. The police ordered him to release her and he complied.

 

Ishimine did not testify. The court instructed the jury on the elements of kidnapping and defined “restraint”—the conduct element—as “restrict[ing] a person’s movement in such a manner as to interfere substantially with her liberty by means of force.” The jury found Ishimine guilty as charged and in the special interrogatory it found that he did not voluntarily release the woman before trial. The circuit court—with the Hon. Judge Peter T. Cahill presiding—sentenced Ishimine to prison for twenty years.

 

He appealed. After trial, the Hawai'i Supreme Court issued its opinion in State v. Sheffield, 146 Hawai'i 49, 456 P.3d 122 (2020). Ishimine raised no issues about the jury instructions. The ICA affirmed. The HSC accepted certiorari and then requested supplemental briefing about whether a Sheffield instruction should have been given.

 

The Full Monty on Sheffield. In Sheffield, another case from the 2d Circuit, the defendant followed a college student walking alone at night. Id. at 50, 456 P.3d at 123.He told her he was going to beat her up and have sex with her as he grabbed a loop on her backpack. Id. Sheffield was charged with kidnapping under the same subsection as Ishimine and assault in the 3d degree. Id. at 51, 456 P.3d at 124. The assault charged was dismissed prior to trial and Sheffield was found guilty. Id. The HSC agreed with Sheffield that “when kidnapping is the only count tried, the State must prove the defendant used a greater degree of ‘restraint’ than that incidentally used to commit the underlying unprosecuted assault in the third degree offense.” Id.

 

The Sheffield Court came to this holding through exploring the Model Penal Code and its commentary, the source of our current kidnapping offense. Id. at 55-59, 456 P.3d at 128-132. The HSC ultimately held that the “restraint” in kidnapping must be “in excess of any restraint incidental to the infliction or intended infliction of bodily injury or subjection or intended subjection of a person to a sexual offense[.]” Id. at 51, 456 P.3d at 124.

 

The HSC explained that instructing the jury about this kind of “restraint” ensures that that the defendant is not convicted of kidnapping based on the acts of restraint incidental to other crimes. According to the HSC, when kidnapping is the only charged offense as opposed to attempted assault or attempted rape, the concern is that it becomes an “end run around special doctrinal protections designed for uncompleted crimes.” Id. at 58 n. 11, 456 P.3d at 131 n. 11. The HSC also questioned whether the Legislature intended to have a Class B or even a Class A felony that is “incidental” to a less serious crime like assault. Id. at 58, 456 P.3d at 131. In the end, the HSC held that the circuit court with the Hon. Judge Peter T. Cahill again presiding plainly erred in not providing the enhanced definition of “restraint” to the jury. Id. at 62, 456 P.3d at 135.

 

Another plain error for not providing the Sheffield instruction. The HSC found a similar problem here. The HSC held that the circuit court plainly erred in failing to provide the instruction on incidental restraint and that the error was not harmless beyond a reasonable doubt. The HSC emphasized that “it is the finder of fact that ultimately determines whether the restraint Ishimine used was more than merely incidental to the dismissed and untried abuse of family or household member offenses.” Moreover, like Sheffield’s case, the prosecution dropped the abuse charges and went to trial solely on kidnapping. That is the kind of “abusive” tactic that Sheffield is meant to address.

 

The HSC agreed that the restraint used in dragging the woman from the car into the house and locked bedroom and then holding her down on the bed are likely forms of abuse of a family or household member. “After dismissing those counts before trial . . . it was unjust for the State to rely on the conduct underlying those untried counts to serve as the basis for its kidnapping case.” Because these counts were dismissed before trial, the jury could not have convicted Ishimine for the misdemeanor offense or even the felony abuse offense for holding his hand over her mouth. Its only option was to convict or acquit him of kidnapping. And that meant the “restraint” needed to be more than “incidental” to the untried offenses. The HSC vacated the conviction and remanded it for a new trial.

 

Justice Nakayama’s Dissent on using plain error. Justice Nakayama dissented. She wrote that using the plain error doctrine “erodes the jurisdictional guardrails that protect our adversarial system.” For Justice Nakayama, the power to recognize plain error must “be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system—that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes.” State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993). It is the key “premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

 

Justice Nakayama wrote that the majority “throws caution to the wind to override our adversarial system and address an issue Ishimine never raised.” Instead of looking to counsel for protection, the court acted like a “self-directed board[] of legal inquiry and research” to identify a mistake committed by counsel. Justice Nakayama pointed out that Ishimine’s counsel had many chances to raise the Sheffield issue. The Sheffield case came out on January 2, 2020. The ICA did not affirm the conviction until February 27, 2020. Counsel could have raised the issue pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(j), but did not. Four months alter Ishimine could have addressed it in the application for writ of certiorari, but did not. For Justice Nakayama, the adversarial system requires Ishimine to bear the cost of his appellate counsel’s errors.

 

Justice Nakayama’s dissent on the merits. As for the issue itself, Justice Nakayama disagreed that the failure to give a Sheffield instruction was not harmless beyond a reasonable doubt. For her the restraint at issue in this case was not “incidental” as a matter of law. In the end, she wrote that because the majority did not address any of the issues that were actually raised by Ishimine’s counsel, she would have dismissed the application for writ of certiorari as improvidently granted. The Chief Justice joined.

 

The majority’s response. While it was more prevalent in the past, the HSC addressed Justice Nakayama’s dissent. The majority pointed out that plain error—a doctrine used by the SCOTUS to correct “matter[s] so absolutely vital to defendants” as early as 1896, Wiborg v. United States, 163 U.S. 632, 658 (1896)—is there to “correct obvious injustices that otherwise occur in the adversarial system.” See HRAP Rule 52(b); State v. Grindles, 70 Haw. 528, 530, 777 P2d 1187, 1189 (1989); State v. Getz, 131 Hawai'i 19, 27, 313 P.3d 708, 716 (2013); State v. DeLeon, 131 Hawai'i 463, 485, 319 P.3d 382, 404 (2014).