ISAGANI BRIONES, Petitioner-Appellant, v. STATE OF HAWAII, Respondent-Appellee
NO. 15833
SUPREME COURT OF HAWAII
MARCH 31, 1993
74 Haw. 442 | 848 P.2d 966
(Special Proceedings - Prisoner No. 91-0008)
LUM, C.J., MOON, KLEIN, AND LEVINSON, JJ., CIRCUIT JUDGE SOONG, IN PLACE OF WAKATSUKI, J., DECEASED
Petitioner Isagani P. Briones (Petitioner) seeks review of a circuit court order dismissing his
I. FACTS
Shortly after arriving uninvited at a party on May 3, 1987, Petitioner allegedly took a shotgun from the car in which he arrived then shot and killed one person, pumped the gun, then shot and wounded another person. Both victims were guests at the party.
Petitioner was charged as follows:
- Count I - Attempted first degree murder for the attempted murder of more than one person “in the same incident,” in violation of
Hawaii Revised Statutes (HRS) §§ 705-500 and707-701(1)(a) ; - Count II - Second degree murder for causing the death of the first victim, in violation of
HRS § 707-701.5(1) ; - Count III - Attempted second degree murder for attempting to cause the death of the second victim, in violation of
HRS §§ 705-500 and707-701.5(1) ; - Count IV - Place to keep firearm, in violation of
HRS § 134-6 (1985); and - Count V - Possession of a firearm by a person indicted for certain crimes, in violation of
§ 134-7(b) (1985).
Petitioner was convicted by a jury on all five counts. At trial, Petitioner‘s counsel objected that convicting Petitioner of Count I as well as Counts II and III violated the double jeopardy prohibitions of the State and Federal constitutions as well as
Petitioner‘s counsel further argued at trial that the death of the first victim rendered Petitioner‘s conviction of attempted murder in the first degree (Count I) an impossibility, because one cannot be convicted of an inchoate, attempted crime as well as the substantive crime itself. The trial court resolved the issues by denying defense counsel‘s objections and imposing sentences on all five counts.
Petitioner‘s counsel reasserted his arguments on appeal. Without directly addressing the double jeopardy issue,3 we affirmed Petitioner‘s conviction and sentence
[B]ecause the exception clause of
HRS § 707-701.5 directs the fact finder to first consider the elements of first degree murder, as codified inHRS § 707-701(1)(a) , once it found Defendant guilty of the inchoate crime of attempted first degree murder, it was precluded from also considering the second degree murder and attempted second degree murder charges.
State v. Briones, 71 Haw. at 94, 784 P.2d at 864.
Except as provided in section 707-701 [first degree murder], a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.
(Emphasis added.)
Petitioner is currently serving a prison sentence of life without parole, as a result of his conviction of attempted first degree murder (Count I). Had Petitioner been convicted of either Count II or III, or both, the sentence would have included the possibility of parole. Petitioner retained different counsel and filed a Rule 40
II.
A. Impermissible Presumption of Guilt
Petitioner asserts that the judge‘s instructions to the jury concerning Counts I, II, and III, combined with the prosecutor‘s explanation in closing argument, led the jury to conclude that if petitioner were guilty of second degree murder (Count II) and attempted second degree murder (Count III), then petitioner was automatically guilty of attempted first degree murder (Count I). Petitioner maintains that he was prejudiced by his prior counsel‘s failure to raise this issue at trial and on appeal. We disagree.
The judge sufficiently instructed the jury regarding the elements of the individual counts. The judge‘s instructions in pertinent part were:
There are three elements to the offense of attempted murder in the first degree, each of which the prosecution must prove beyond a reasonable doubt. If the prosecution has done so, you must find the defendant guilty as charged. If the prosecution has not done so, you must find the defendant not guilty.
The three elements are:
1. The defendant, Isagani P. Briones, shot Jessie Peralta and Floracindo Queja, Jr. in the same incident;
2. The defendant did so intentionally;
3. Defendant‘s conduct, under the circumstances as he believes them to be, was a substantial step in a course of conduct intended to cause
the death of Jessie Peralta and Floracindo Queja, Jr. The defendant, Isagani P. Briones, is charged in Count II of the complaint, with the offense of murder in the second degree of Floracindo Queja, Jr.
There are two elements to the offense of murder in the second degree, each of which the prosecution must prove beyond a reasonable doubt. If the prosecution has done so, you must find the defendant guilty as charged. If the prosecution has not done so, you must find the defendant not guilty.
The two elements are:
1. The defendant, Isagani Briones, caused the death of Floracindo Queja, Jr. by shooting him in an incident separated in time;
2. The defendant did so intentionally or knowingly.
There are three elements to the offense of attempted murder in the second degree, each of which the prosecution must prove beyond a reasonable doubt. If the prosecution has done so, you must find the defendant guilty as charged. If the prosecution has not done so, you must find the defendant not guilty.
The three elements are:
1. The defendant, Isagani P. Briones, shot Jessie Peralta in an incident separated in time;
2. The defendant did so intentionally;
3. Defendant‘s conduct, under the circumstances as he believes them to be, was a substan-
tial step in a course of conduct intended to cause the death of Jessie Peralta. (Emphasis added.)
The prosecutor‘s explanation in closing argument was similar:
In addition to that, and here we come to the principal charge, murder in the first degree and the phrase there is “in the same incident“. If you find that in one event, he killed Floracindo Queja and in a separate event, he tried to kill Jessie Peralta and that both of those events were part of a single course of action, then he is guilty of attempted murder in the first degree.
(Emphasis added.)
It is clear that the jury, despite petitioner‘s assertions to the contrary, was required to find the element of “in the same incident“, or “part of a single course of action“, in order to find petitioner guilty of attempted first degree murder.4 No “presumption of guilt” occurred as a result of either the judge‘s instructions or the prosecutor‘s argument. Our assessment that the issue lacks merit, no matter when raised, effectively disposes of any claim of error arising out of a failure to present the issue for review.
B. Right to a Fair Jury Trial and Ineffective Assistance of Counsel
The second point petitioner raises is that the Hawaii Supreme Court violated Petitioner‘s right to trial by jury when it “took it upon itself to decide which count the jury would have convicted on if properly instructed.”
Although we disagree with petitioner‘s rationale, the right to a fair jury trial includes the right to have all charges clearly presented to the jury in order to obviate the possibility of inconsistent findings of fact if the jury were to find against the defendant on all counts. See
(1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:
. . . .
(c) Inconsistent findings of fact are required to establish the commission of the offenses[.]
1. Inconsistent Findings of Fact
In order to understand the reason that Petitioner‘s convictions on Counts I-III violate
Second, in the case of a serial killer, the requisite state of mind to cause the death of more than one person may be found in a continuing course of conduct, or a common scheme or plan, even though the acts may be “separated in time.” Whether such acts are deemed to have occurred in the “same incident” or “separate incidents,” for purposes of
Finally, we examine the case of an actor who causes the death of two or more people in incidents separated in time but without the intent to cause both deaths as part of a common scheme or plan. For example, an actor, in the course of committing robbery of a convenience store, shoots and kills an employee. Afterwards, a passer-by is shot and killed by the actor attempting to escape. Although two people were killed in separate incidents during the same criminal episode, the actor may not be guilty of first degree murder because the requisite state of mind to cause the death of two or more people in the same or separate incident arguably is lacking. The actor would possibly be guilty, however, of two separate counts of second degree murder.
An examination of Petitioner‘s prior counsel‘s appellate brief explains his failure to object to the multiple, inconsistent guilty verdicts on Counts I-III. Prior counsel harbored a fundamental misapprehension of the relationship between first and second degree murder. Counsel argued that as long as an actor caused the death of two or more people he or she could be convicted, barring other defenses, of first degree murder.9 Such a conviction would
Counsel could have argued, both at trial and on appeal, that the factual inconsistency concerning Petitioner‘s state of mind inherent in the multiple convictions violated
Petitioner asserts that his prior counsel failed to present the issue of a potential violation of his constitutional right to trial by jury at trial and on appeal. First, any complaint of counsel‘s ineffective assistance at trial, contained in a Rule 40 petition, is usually waived pursuant to
Inapplicability. Said proceeding shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or waived. An issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
Where petitioner has been represented by the same counsel both at trial and on direct appeal, no waiver of the issue of trial counsel‘s performance occurs because no realistic opportunity existed to raise the issue on direct appeal. Matsuo v. State, 70 Haw. 573, 577, 778 P.2d 332, 334 (1989) (
No constitutional right to an appeal exists. State v. Dannenberg, 74 Haw. 75, 837 P.2d 776, 778 (1992); McKane v. Durston, 153 U.S. 684 (1894). Hawaii guarantees by statute the right to an appeal to every criminal defendant who deems himself or herself aggrieved by a district or circuit court judgment.
No Hawaii Supreme Court case has defined the standard by which the effectiveness of appellate counsel is to be judged.11 Federal jurisdictions have applied the
Ineffective Assistance at Trial
In any claim of ineffective assistance of trial counsel, the burden is upon the defendant to demonstrate that, in light of all the circumstances, counsel‘s performance was not objectively reasonable—i.e., “within the range of competence demanded of attorneys in criminal cases.” State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In State v. Antone, we set forth a two-part test requiring defendant to show “specific errors or omissions... reflecting counsel‘s lack of skill, judgment, or diligence[,]” and that “these errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.” Antone, 62 Haw. at 348-49, 615 P.2d at 104. “An accused‘s potentially meritorious defenses include the assertion of his constitutional rights.” Id. at 349 n.1, 615 P.2d at 104 n.1 (citing Kahalewai, 54 Haw. at 32, 501 P.2d at 980).
General claims of ineffectiveness are insufficient and every action or omission is not subject to inquiry. Specific
Ineffective assistance on appeal
The appellate court‘s purpose is to ensure defendant‘s right to a fair trial. Appellate courts neither find facts, except to determine if substantial evidence existed to support the trial court‘s conclusions, nor judge credibility, nor weigh the evidence. Nonmeritorious arguments or explanations are discarded without prejudicial effect. Moreover, appellate courts may dispense with oral argument at their discretion. As such, it is counsel‘s responsibility, in the limited time and space allowed, to present issues that may have influenced the trial court‘s decision adversely to his or her client. Our focus, therefore, is not upon the possible, or even probable, influence appellant‘s counsel‘s actions had on the appellate court, but, instead, we center on whether counsel informed him or herself enough to present appropriate appealable issues in the first instance.
An “appealable issue” is an error or omission by counsel, judge, or jury resulting in the withdrawal or substantial impairment of a potentially meritorious
If an appealable issue is omitted, then both the issues actually presented on appeal as well as those omitted are evaluated in light of the entire record, the status of the law and, most importantly, counsel‘s knowledge of both.16 Counsel‘s scope of review and knowledge of the law are assessed, in light of all the circumstances, as that information a reasonably competent, informed and diligent attorney in criminal cases in our community should possess.17 Counsel‘s informed decision as to which issues to present on appeal will not ordinarily be second-guessed.
Violation of an accused‘s constitutional right to effective assistance of counsel warrants the irrebuttable presumption of prejudice. Antone, 62 Haw. at 349, 615 P.2d at 104. A conviction will be reversed, therefore, if the defendant was denied effective assistance of counsel at trial, Aplaca, 74 Haw. at 73, 837 P.2d at 1308, or on appeal.
In the instant matter, Petitioner‘s convictions on Counts I, II, and III violated
In the original appeal, we cured the statutory violation created by the guilty verdicts in Counts I, II, and III by remanding to the trial court with instructions to dismiss Petitioner‘s convictions in Count II (murder in the second degree) and Count III (attempted murder in the
On the briefs:
John Ashford Thompson, for petitioner-appellant.
Doraine Meyer Belnap, Deputy Prosecuting Attorney, for respondent-appellee.
CONCURRING OPINION OF LEVINSON, J., WITH WHOM MOON, J., JOINS
I concur in the result reached by the majority opinion inasmuch as it is apparent that State v. Briones, 71 Haw.
The majority acknowledges that the circuit court adequately instructed the jury regarding the elements of attempted first degree murder (Count I), second degree murder (Count II), and attempted second degree murder (Count III).1 Majority opinion at 450-52. Moreover, I read the majority opinion to assume, arguendo, that the jury‘s guilty verdict as to Count I was supported by substantial evidence;2 that conclusion is certainly implicit in Briones I, see 71 Haw. at 94-95, 784 P.2d at 864, and I subscribe to it.
I understand the reasoning of the majority opinion to be as follows: (1)
It is obvious that had the circuit court instructed the jury that it could not decide Counts II and III of the complaint if it was able to reach a unanimous guilty verdict as to Count I, and vice versa, the jury‘s guilty verdict as to Count I would have foreclosed it from reaching Counts II
It is equally obvious, as the majority maintains at 453 of its opinion (and as the Briones I court should have recognized as well), that the “[circuit court‘s] instructions to the jury... should have... included an explanation that a unanimous guilty verdict on [C]ount I, attempted first degree murder, would necessarily preclude guilty verdicts on Counts II and III, second degree murder and attempted second degree murder, respectively,” and that “[t]he omission of proper instructions allowed the jury‘s verdicts to contain inconsistent factual findings in violation of
I believe, however, that the majority is mistaken when it suggests that “[t]he key issue thus becomes whether [the petitioner‘s] counsel‘s failure to raise the issue of inconsistent factual findings may have affected [the petitioner‘s] right to a fair trial and constituted ineffective assistance of counsel.” Majority opinion at 454. On the contrary, “the trial court is the sole source of all definitions and statements of law applicable to an issue to be resolved by the jury.” State v. Williamson, 72 Haw. 97, 103, 807 P.2d 593, 596 (1991) (emphasis added). Moreover,
[it] is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent
manner, so that they may have a clear and correct understanding of what it is they are to decide, and he shall state to them fully the law applicable to the facts.
State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980) (quoting People v. Henry, 395 Mich. 367, 373-74, 236 N.W.2d 489, 492 (1975)) (emphasis added). And faced with inaccurate or incomplete instructions, “[t]he trial court has a duty to, with the aid of counsel, either correct the defective instruction or to otherwise incorporate it into its own instruction.” State v. Riveira, 59 Haw. 148, 155, 577 P.2d 793, 797 (1978) (emphasis added and citations omitted); see
In Briones I, “we affirm[ed] the [petitioner‘s] conviction and sentence as to the attempted first degree murder offense (Count I)..., reverse[d] the conviction and sentence as to the second degree murder offense (Count II) and the attempted second degree murder offense (Count III), and remand[ed] with instructions to dismiss Counts II and III.” 71 Haw. at 95, 784 P.2d at 864. On the record before us at the time, which, as I have noted, has not changed one iota by the present petition, that was the wrong result for the very reasons cited by the majority opinion but unfairly charged to the petitioner‘s appellate counsel.
The majority‘s conclusion that the ultimate disposition of the present matter was somehow “altered” by the petitioner‘s counsel‘s failure to argue on appeal that the petitioner‘s multiple murder convictions violated
As a general proposition, “[i]nconsistent verdicts are not per se grounds for reversal.” Liuafi, 1 Haw. App. at 643, 623 P.2d at 1282; see generally United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976); Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d 259 (1968). Nevertheless, Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961), on which the majority opinion now relies, see majority opinion at 457, 458-59, and which had been on the books for eighteen years when Briones I was decided, is dispositive of the issue before us.
In Milanovich, a husband and wife were convicted of stealing property belonging to the United States, and the wife was also convicted of receiving and concealing the stolen property. Id. at 552, 81 S. Ct. at 728. A five-member majority of the United States Supreme Court, through Justice Stewart, held that setting aside, on appeal, a shorter concurrent sentence for receiving, following the wife‘s conviction of both stealing and receiving, did not cure any prejudice resulting from the district court‘s failure to instruct the jury that it could convict the wife of either stealing or receiving but not both. Id. at 555, 81 S. Ct. at 730.3 The Court‘s language upon which the
It is now contended that setting aside the sentence on the receiving count was not enough—that the conviction on the larceny count must also be reversed, and the case remanded for a new trial. The argument is that although the evidence was sufficient to support a conviction for either larceny or receiving, the judge should have instructed the jury that a guilty verdict could be returned upon either count but not both. It is urged that since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order.
We think that the point is well taken.... We hold... that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.
... [T]here is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving (or, conceivably, of neither). Thus we cannot say that the mere setting aside of the shorter concurrent sentence sufficed to cure any prejudice resulting from the trial judge‘s failure to instruct the jury properly.
Id. at 554-55, 81 S. Ct. at 730 (emphasis added and footnote omitted).
Accordingly, the Gaddis court reversed the judgment of the district court and remanded for imposition of sentence consistent with its opinion. Id. at 551-52, 96 S. Ct. at 1027. In so doing, the Court distinguished Milanovich as follows:
The Court of Appeals was mistaken... in supposing that our decision in Milanovich required the ordering of a new trial as the “proper appellate remedy” for the District Judge‘s error in this case. The very unusual facts in that case were wholly different from those presented here.
In Milanovich... [t]he trial judge refused to instruct the jury that the petitioner could not be convicted for both stealing and receiving the same
currency, and she was convicted and separately sentenced on both counts. This Court held that... the jury should have been instructed that the petitioner could not be separately convicted for stealing and receiving the proceeds of the same theft. Since it was impossible to say upon which count, if either, a properly instructed jury would have convicted the petitioner,... her convictions were set aside and the case was remanded for a new trial. ... The present case is of a very different order.... [T]he trial judge should have dismissed Count 3 of the indictment. His error in not doing so can be fully corrected now by the simple expedient of vacating the convictions and sentences under that count.
Id. at 549-50, 96 S. Ct. at 1026-27 (emphasis added).
In my view, the reasoning of Milanovich and Gaddis controls the disposition of the present case, and Briones I is completely inconsistent with that reasoning. If, as we all agree, the circuit court had instructed the jury that it could reach Counts II and III of the complaint only if it was unable to arrive at a unanimous guilty verdict as to Count I, then neither we nor the Briones I court would have been faced with verdicts based on inconsistent factual findings.4 But the jury was not so instructed, and, as the majority recognizes at 457 of its opinion (and as the Briones I court should have recognized), the petitioner‘s jury could have viewed the evidence before it as sufficient to support alternative convictions of attempted first degree
I would grant the petition but would not hold that the petitioner was denied the effective assistance of counsel. Ultimate responsibility for misapprehending the relationship between existing case law and the statutory scheme created by
Notes
However, the court may deny a hearing if the petitioner‘s claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner.
I note, however, as does the majority opinion at 452 n.4, that “in an incident separated in time” is neither an element of second degree murder, see(1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. He may not, however, be convicted of more than one offense if:
(a) One offense is included in the other, as defined in subsection (4) of this section . . .
. . . .
(4) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that 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.
[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury.... The test on appeal is not whether guilt is establishedIn 1986, the legislature transformed the aggravating circumstances contained in
Whether or not multiple killings were committed with an intent to kill multiple persons or to kill specific, individual persons, or whether they were committed in the same incident, in a single course of action, or in separate actions, is entirely irrelevant to establishing whether the offense of first or second degree murder is committed. The only relevant factor is whether one killing or more than one killing was committed.
Opening brief, filed 19 April 1989, at 31.Petitioner‘s counsel‘s trial defense was, to be generous, inconsistent. Counsel‘s opening statement prepared the jury to expect evidence showing the elements of extreme emotional distress brought on by Petitioner‘s intoxication combined with the confrontational nature of the circumstances and his knowledge that the people at the party were allegedly those who may have killed his brother only one year earlier. Such evidence did not surface at trial. The defense, after opening statement, was that the police identified the wrong person and that the prosecution‘s case rested on faulty identification. It is no surprise, then, that the jury discredited the evidence in Petitioner‘s favor and counsel‘s closing arguments that Petitioner was not the perpetrator nor had he any motive to be.
Federal cases concerning effective assistance of trial and appellate counsel rely on the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), a test criticized as being too burdensome for defendants to meet because it imposes a double burden upon defendants trying to show their counsel‘s ineffective assistance, resulting in a prejudice requirement almost impossible to surmount. State v. Smith, 68 Haw. 304, 310 n. 7, 712 P.2d 496, 500 n.7 (1986). Strickland required not only that trial counsel‘s action or omission be an “unprofessional error,” but that that error resulted in a “reasonable probability that . . . the result of the proceeding would have been different.” 466 U.S. at 694. The holding in Smith specifically rejected the standard enunciated in Strickland. Id. Bryant‘s reliance on federal case law to establish a standard for effective assistance of appellate counsel is inconsistent with our holding in Smith and inherently suspect. The “significant and obvious” and “clearly more likely” standards, aside from being vague, are indistinguishable from the burdensome prejudice standard enunciated in Strickland and its progeny. Moreover, to the extent that the holding in Bryant centers the analysis on the decision of the appellate court hearing the issues, rather than on the possible effect an omitted issue would have had on the trial court, Bryant is further disapproved.
In the absence of sufficient evidence in the record on appeal, an appellate court should remand for the development of such a record. Matsuo, 70 Haw. at 578, 778 P.2d at 335. Where, as here, the explanation for the alleged errors is evident from the record on appeal, remand for aWhere the petition alleges the ineffective assistance of counsel as a ground upon which the requested relief should be granted, the petitioner shall serve written notice of the hearing upon the counsel whose assistance is alleged to have been ineffective and said counsel shall have an opportunity to be heard.
State v. Hamala, 73 Haw. 289, 293, 834 P.2d 275, 277 (1992) (quoting Burks v. United States, 437 U.S. 1, 15 (1978)). Because our reversals and subsequent dismissals were based on legal errors rather than factual insufficiencies, the Double Jeopardy Clauses contained in the United States and Hawaii Constitutions do not bar reinstatement of counts II and III and subsequent retrial.[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.