Failure to Ask for Instruction, Argue Issue on Appeal Doesn't Seem to Matter

State v. Henley (HSC December 22, 2015)

Background. John Henley was charged with assault in the third degree. HRS § 707-712(1)(a). At trial, the complainant, a 68-year-old security guard, went to check out a party one of the condos at the Colony Surf for a noise complaint. The police showed up and asked him to escort two people off the property, including Henley. The complainant testified that they were rude to him and then Henley head-butted him in the face and punched him when he fell to the ground. As Henley kicked him, he squeezed his testicle to stop him. It worked. Henley ran off into Kapiolani Park and the police apprehended him. An investigating officer testified about Henley’s injuries. The defense called the other guy, Kalanikapu Copp. Copp testified that the complainant got into a fight with Henley and tried to choke him out or put Henley in an arm bar. Henley also took the stand and testified that the security guard attacked him.

Neither the prosecution nor Henley requested the mutual affray jury instruction. The jury found him guilty as charged. At sentencing, the prosecution requested 30 days jail. Henley recommended probation given his lack of criminal record. The court sentenced Henley to 30 days jail.

Henley immediately informed the court that he intended to appeal and asked that the sentence be stayed pending appeal. The prosecution responded by requesting bail to be increased to $11,000 on the grounds that Henley “is not from here. Appeals take a long time.” Henley countered that even though he wasn’t born in Hawaii and came from Arkansas, he lived here now with his father and this is where they remain. The court increased bail to $2,000 cash only and did not set a further bail hearing. Because he didn’t have the money he immediately went into custody and his father made bail three days later.

The ICA affirmed. Henley never raised the issue of mutual affray instructions.

The Trial Court’s Failure to Instruct the Jury on Mutual Affray was Plain Error. “[I]n our judicial system, the trial courts, not the parties, have the duty and ultimate responsibility to insure that juries are properly instructed on issues of criminal liability.” State v. Adviento, 132 Hawaii 123, 137, 319 P.3d 1131, 1145 (2014). Henley was charged with assault in the third degree, which is a misdemeanor “unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.” HRS § 707-712(2). That means that if the jury finds a “mutual affray,” the offense is reduced from a misdemeanor to a petty misdemeanor punishable only for up to 30 days.

The trial court did not give a mutual affray instruction even though it “must submit a mutual affray instruction to the jury where there is any evidence in the record that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent.” State v. Kikuta, 125 Hawaii 78, 96, 253 P.3d 639, 657 (2011). Mutual affray “requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct.” Id. at 96 n. 12, 253 P.3d at 657 n. 12. According to the HSC, the trial court plainly erred in failing to instruct the jury about the reduction. There was ample evidence suggesting that this could have been a mutual affray. Both Copp and Henley’s version support the possibility and the instruction.

Not Harmless Beyond a Reasonable Doubt. Interestingly, the HSC noted that this was not an error that was harmless beyond a reasonable doubt. According to the HSC, “given a choice between convicting Henley on misdemeanor Third Degree Assault and the mitigating offense of petty misdemeanor assault, the jury could have convicted Henley on the latter.” The HSC vacated the conviction and remanded for new trial.

So even though the trial judge gave Henley 30 days jail—the maximum for a petty misdemeanor, it was not harmless. And another thing: is the HSC suggesting that jurors should be instructed that assault 3d is a misdemeanor whereas the mutual affray is a petty?

The Bail Issue. The HSC also held that the trial court abused its discretion in raising bail to $2,000 cash only. First off, in a misdemeanor or petty misdemeanor, the sentence is automatically stayed when the defendant notifies the court of his or her intention to appeal the judgment. State v. Kiese, 126 Hawaii 494, 510, 273 P.3d 1180, 1196 (2012). The court, however, can set bail pending appeal and has the power to set conditions of bail and raise the amount. HRS §§ 804-4 and 804-9. The HSC held that the court’s raising of bail to the maximum available fine to $2,000 and setting it at cash only when it knew that Henley didn’t have the money was an abuse of discretion. There appeared no sound justification for it, according to the HSC.

Chief Justice Recktenwald's Concurrence and Dissent. The CJ joined the majority about the jury instruction issue. He noted that he dissented in Kikuta but is fine with it because now it is the law of the land. As for the bail issue, however, he dissented. He simply did not agree with the majority that raising bail to $2,000 at cash only was an abuse of discretion in light of all the facts in the case. Justice Nakayama joined.