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.