77 Haw. 216 | Haw. App. | 1994
Defendant-Appellant Clifford Cabral (Defendant) was initially indicted on September 20, 1989 for murder under Hawai'i Revised Statutes (HRS) § 707-701 (1985)
On the retrial of Count II, a jury found Defendant guilty as charged, and the family court sentenced him on June 2, 1992
Defendant raises two issues on appeal: (1) whether the instruction defining murder by omission was correct and (2) whether defense counsel’s agreement to the said instruction deprived Defendant of his right to effective assistance of counsel.
I.
The record discloses that when the parties were settling instructions, the State offered the disputed instruction as State’s Supple
We examine, then, the instruction in issue. State’s Supplemental Instruction No. 1 given to the jury stated:
The Defendant is charged with the offense of Murder.
A person commits the offense of Murder when he intentionally or knowingly causes the death of another person by voluntarily omitting to perform a duty imposed by law.
There are three material elements of the offense of Murder, each of which must be proven beyond a reasonable doubt. These elements are:
1. The Defendant caused the death of Michael Chun.
2. The Defendant voluntarily omitted to perform a duty imposed by law.
3.The Defendant caused the death intentionally or knowingly.
Defendant asserts that the failure to include the preposition “by” between elements one and two made the instruction “prejudi-cially insufficient and misleading.” He argues it “allowed the jury to convict [Defendant] of murder without making the critical finding of whether the evidence proved beyond a reasonable doubt that by voluntarily omitting to perform a duty imposed upon him by law, [he] intended or knew that Michael Chun would die.”
But the same instruction
Obviously, had the circuit court stated the elements of the crime as it had initially stated them in the same instruction, no question would have arisen. It is clear under HRS § 702-203(2), that for criminal liability to be based on an omission to act, the resulting harm must be caused by the omission to perform a duty imposed by law. See State v. Batson, 73 Haw. 236, 251 n. 8, 831 P.2d 924, 932 n. 8 (1992); State v. Tucker, 10 Haw.App. 43, 53, 861 P.2d 24, 30 (1993) (cert. granted and remanded, 74 Haw. 652, 857 P.2d 600, on remand 10 Haw.App. 73, 861 P.2d 37, recon. denied, 10 Haw.App. 94, 863 P.2d 989); Commentary to HRS § 702-203 (1985). Manifestly, then, the connection between the resulting harm and the omitted act must be expressly communicated to the jury in the court’s instructions.
As we have already noted, the court correctly included the preposition “by” in a definition of the offense in the same instruction outlining the material elements. Additionally, State’s Supplemental Instruction No. 14 reiterated that the offense charged was murder by omission of a legal duty. Under this instruction, the jury was instructed that it was to return “one of five verdicts.” State’s Supplemental Instruction No. 14 states that one of the verdicts returnable by the jury was: “2. Guilty of the offense of murder (by intentionally or knowingly causing the death of Michael Chun by voluntarily omitting to perform the duty of a stepparent, as earlier explained by the Court.)” Moreover, in State’s Supplemental Instruction No. 10, the court instructed the jury that “A steparent [sic], acting in loco parentis, has a legal duty to provide reasonably necessary and available medical services for his stepchild. ...” The duty, the omission of which would result in criminal liability as set forth in State’s Supplemental Instruction No. 1, thus, was plainly defined in State’s Supplemental Instruction No. 10, making evident that the duty Defendant omitted to perform as a stepparent, was to provide medical services for the decedent stepchild.
An examination of the instructions as a whole, accordingly, indicates that the omission of the word “by” in the elements’ description of State’s Supplemental Instruction No. 1, was not material. The definition of the offense was clearly set out in the same instruction and reiterated in another instruction. While not determinative of the correctness of the instructions, the verdict form signed by the jury foreman, states, significantly, that the jury had found Defendant guilty of “causing the death of Michael Chun by voluntarily omitting to perform the duty of a stepparent.” (Emphasis added.) Consequently, it appears obvious that the jury correctly understood and applied the law.
Under Hawaii Rules of Penal Procedure Rule 30(c), the court’s instructions must “afford ... the jury an adequate and understandable charge.” We find, under the circumstances, that the instructions here were adequate and as a whole, did correctly state the law and were so understood by the jury.
II.
Having found that the instructions as a whole correctly stated the law, it is not necessary to consider Defendant’s claim of ineffective assistance of counsel.
The Judgment of conviction is affirmed.
. Hawai'i Revised Statutes (HRS) § 707-701 (1985) states, "a person commits the offense of murder if he intentionally or knowingly causes the death of another person.”
. HRS § 702-203 (1985) states in full:
Penal liability based on an omission. Penal liability may not be based on an omission unaccompanied by action unless:
(1) The omission is expressly made a sufficient basis for penal liability by the law defining the offense; or
(2) A duty to perform the omitted act is otherwise imposed by law.
. Michelle Cabral, the deceased minor’s mother, was indicted with Defendant for murder in Count I and for the offense of murder under HRS §§ 707-701 and 702-203(2) in Count III. Pursuant to a plea bargain she made, Count I was dismissed and Count III reduced to a manslaughter charge.
. The opinion states:
If the State decides to retry [Defendant] of Count II for murder by voluntarily omitting to perform a duty imposed by law, it may do so. If the Count II verdict finds [Defendant] not guilty or guilty of a crime less serious than manslaughter, the family court shall sentence [Defendant] on the Count I manslaughter verdict. If the Count II verdict finds [Defendant] guilty of manslaughter, the family court shall sentence [Defendant] on either the Count I or the Count II manslaughter verdict. If the Count II verdict finds [Defendant] guilty of murder, the family court shall sentence [Defendant] on the Count II murder verdict.
State v. Cabral, 8 Haw.App. 506, 516-17, 810 P.2d 672, 678 (1991).
. In accordance with this court’s instructions in the first appeal, Defendant was not sentenced on Count I. See note 4, supra.
.The record does not include a copy of the original State Supplemental Instruction No. 1 showing that it was modified by an additional paragraph. The instruction in the court file does not reflect any modification but sets forth the instruction as reproduced in this opinion. According to the circuit court's notation, the instruction was "given by agreement.” However, the transcript reflects it was actually modified by agreement.
. We refer to this instruction as State’s Supplemental Instruction No. 1 since the trial court did not renumber the instructions given to the jury. Reference to other instructions are by the number given to them by the parties.
Replication of the instruction does not indicate our approval of other aspects of the instruction for use in future cases.
. A written copy of the instruction was also provided to the jury.