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.”
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