State v. HolbronState v. Holbron
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On January 13,1992, Defendant-Appellant Darren Holbron (Defendant) was charged with five felony counts: Count I, kidnapping in violation of Hawai‘i Revised Statutes (HRS) § 707-720(l)(e) (Supp.1992); Count II, use of a firearm in the commission of a felony in violation of
Defendant appeals from the judgment of conviction on three grounds: (1) the court failed to instruct the jury on the essential state of mind element required to be proven in Counts III and IV; (2) the court erred in admitting State’s Exhibit 4 into evidence, a redacted copy of a judgment offered to prove that Defendant had been convicted of a prior felony in support of the charges in Counts III and TV; and (3) the court erred in failing to instruct the jury that the State was required to prove venue beyond a reasonable doubt.
Pivotal in points (1) and (3), and in every criminal case, as well, is
(1) Except as otherwise provided in section 701-115, 2 no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
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(b) The state of mind required to establish each element of the offense;
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(d) Facts establishing venue; ...
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(2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed.
(Footnote added.)
On its face, then, the HPC prohibits conviction unless the matters set forth in
I.
Relevant to the state of mind element is the direction in
No person who is under indictment for, or has waived indictment for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.
The lack of any specified state of mind in
Nor is a neglgent state of mind applcable under the express terms of
Therefore, the State must prove that a defendant acted intentionaly, knowingly, or recklessly before he or she may be convicted of the offenses proscribed in
In a jury trial, Defendant’s state of mind is a fact that must be determined by the jury.
See State v. Gabrillo,
10 Haw.App. 448, 457, 877 P.2d 891, 895 (1994). But here, as the State readily concedes, the court failed to instruct the jury on the state of mind element under
The fact that the court specifically instructed the jury that the State was required to prove a mental element for each of the other charges against Defendant but did not so instruct them as to [certain] Count[s] could have misled the jury into thinking that the mental element was not an essential element of [those] Count[s]. The jury could have compared the instructions and decided [mistakenly] that the State was not required to prove a mental element in [such] Count[s].
State v. Hassard, 9 Haw.App. 368, 372, 842 P.2d 267, 270 (1992), cert. denied, 74 Haw. 652, 845 P.2d 1193 (1993).
Although Defendant did not object to the instructions below, we may take notice of plain errors which affect the substantial rights of defendants, State v. Horswill, 75 Haw. 152, 156, 857 P.2d 579, 581-82 (1993); Hawaii Rules of Penal Procedure (HRPP) Rule 52(b), and we do so here. 5 For, “ ‘[i]t is a grave error to submit a [criminal] ease to a jury without accurately defining the offense charged and its elements.’ ” Pinero, 70 Haw. at 527, 778 P.2d at 715 (quoting 2 C. Wright, Federal Practice and Procedure: Criminal § 487, at 723 (2d ed. 1982)). The wrong instruction could only have “left an erroneous impression in the minds of the jurors.” State v. Laurie, 56 Haw. 664, 672, 548 P.2d 271, 277 (1976).
Based on the foregoing reasons, we hold that the failure to instruct the jury on the state of mind element, as required by
II.
Defendant also contends that the court committed reversible error when it failed to instruct the jury regarding venue.
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As in the case of a requisite state of mind, the HPC requires that venue must be proven beyond a reasonable doubt before a person may be convicted of an offense. Indeed, the failure to prove venue under
In treating jurisdiction and venue as elements that must be- proved beyond a reasonable doubt, the [Model Penal] Codeimposes a more rigorous standard than many states that call for proof only by a preponderance. Whether the same is true as to limitations, which the Code also treats as involving an element, is less clear. Much as there is to say for a distinction between facts that establish the criminality of the defendant’s conduct and those that merely satisfy procedural requirements, with a heavier burden for the former than the latter, there is grave danger of confusion in presenting to a jury different standards for appraising different features of the prosecution’s case. So long as venue and jurisdiction present questions for the jury on the general issue, the prosecutors among the Model Penal Code Advisory Committee were agreed that a slight relaxation of the burden of persuasion could not compensate for the confusion likely to be caused by utilizing a double standard of this kind.
Model Penal Code § 1.12 comment at 188-90 (1985) (footnotes omitted) (emphasis added). Thus, the drafters of the Model Penal Code left no doubt that the issue of venue was to be submitted to the jury and proved beyond a reasonable doubt in the same way that substantive elements of a particular offense must be submitted and proven.
However, in State v. Puaoi, 78 Hawai‘i 185, 891 P.2d 272 (1995), the Hawaii Supreme Court held that venue may be judicially noticed on appeal pursuant to Hawaii Rules of Evidence (HRE) Rule 201 (1985). HRE Rule 201 states in pertinent part:
Rule 201 Judicial notice of adjudicative facts.
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(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
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(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
In Puaoi, the evidence submitted to the trial court was that the incident took place “ ‘in front of the old folks home on Earn Five Highway.’” Id. at 190, 891 P.2d at 277 (emphasis omitted). On appeal, the supreme court took judicial notice that “Kam Five Highway” was a common shorthand form of “Kamehameha Five Highway,” and that the highway was located on the island of Molokai and was entirely within the Molokai district of the island. Id. at 190-91, 891 P.2d at 277-78. The supreme court further took notice that the Molokai district was included in the second judicial circuit and therefore the trial was held within the proper judicial circuit. Id. at 190-91, 891 P.2d at 277-78. Decisions relied on by the supreme court in Puaoi involved appellate judicial notice of venue in appeals involving jury trials. See State v. Stiles, 706 S.W.2d 944 (Mo.App.1986); Porter v. State, 520 So.2d 235 (Ala.Crim.App.1987). Therefore, we apply Puaoi in this case.
Here, the complaining witness testified that on January 1, 1992 during the early morning hours, he and the Defendant, who was his cousin by marriage, left a New Year’s party in Wai‘anae in the complaining witness’ car. When the two had passed two to three house lots, Defendant pulled out a gun and told the complaining witness “let’s go to Hyram Silva’s house[.]” During this time, Defendant threatened to shoot himself and the complaining witness. Defendant fired two rounds which caused the complaining witness to stop the car in the farm lands of Wai‘anae. Defendant got into the driver’s seat and the complaining witness sat in the passenger’s seat. Defendant drove to one Hyram Silva’s house but no one was home. Defendant fired a shot at the complaining witness in front of the house. They then left and “got back on the highway... the main street [bejcause there’s only one street, and [they] headed back toward the city ... back to Wai‘anae the main street[.]” They returned to the house at which the party was being held.
Hyram 7 Silva’s neighbor testified that on January 1 at about four or five in the morning she heard a ear “drive into Hyram Silva’s house.” She saw a man walk to the house holding a gun and knock and call for Hyram Silva. That man returned to the car, reentered it, and began to argue with another man who was seated in the car. The men got out of the car. The man on the driver’s side pointed the gun at the other man. The neighbor called the police. Then the man with the gun put it against the other man’s head. She heard a shot. The neighbor testified that she lived in Lualualei Valley in Wafanae on the island of 0‘ahu.
Pacts which are “capable of accurate and ready determination by resources whose accuracy cannot reasonably be questioned” or generally known may be judicially noticed. HRE Rule 201(b). Hyram Silva’s neighbor testified she lived in Wai‘anae, 0‘ahu. Wai‘anae is where the alleged offense took place, Defendant and the complaining witness traveling by automobile from a house in Wai‘anae to another house in Wai‘anae. Based on the
Atlas of Hawaii,
Department of Geography, University of Hawaii (1973), the area referred to as Wai‘anae is located only on 0‘ahu. Pursuant to
III.
We reiterate that it is the duty of the trial judge to give appropriate instructions even if not requested by counsel. The HPC requires that no person may be convicted without venue being proven beyond a reasonable doubt. Venue is, ordinarily, for the fact-finder to determine. In the interest of efficient judicial administration, and to preclude similar future appeals on this issue, we believe that, henceforth, as a matter of course, trial courts should instruct the jury that the State must prove venue beyond a reasonable doubt. For that matter, the trial court can do nothing but enhance the administration of justice by instructing the jury on the checklist of items set forth in
IV.
Finally, we consider Defendant’s contention that the trial court erred in admitting State’s Exhibit 4 (Exhibit 4) in evidence. This exhibit was offered to prove Defendant’s prior felony conviction. Exhibit 4 is a redacted copy of a judgment in Criminal No. 57406 indicating that “Darren James Hol-bron” had been “convicted of ... a felony under the Hawaii [Hawaii] Revised Statutes.” In the right hand margin of the document is the parenthetical reference, “(W-36752).”
On appeal, the State argues that no error was committed because (1) Defendant did not object to the admission of Exhibit 4 and (2) the trial court could have reasonably inferred that Defendant, whose fingerprints were submitted under Honolulu Police Department Report No. W36752 (Report No. W36752), was the person convicted in Criminal No. 57406.
The State initially offered State’s Exhibit 3
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(Exhibit 3), the unredaeted judgment of conviction from Criminal No. 57406, into evidence. Defendant made several objections to Exhibit 3
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but stated that if the State was able to establish that Defendant was the person referred to in the judgment, counsel
After her testimony, Defendant objected to the admission of Exhibit 8 into evidence for “lack of foundation.” A stipulation as to Defendant’s prior conviction was never entered into between counsel because defense counsel was concerned that stipulating would constitute a waiver of his objections. During a lengthy bench conference, counsel and the court discussed methods of admitting the exhibit without revealing the felony involved and of preserving Defendant’s objection to the exhibit as lacking foundation. At the conclusion of the discussion, the parties agreed that a redacted version of the judgment would be submitted into evidence.
After the bench conference and further examination of the classifier, the prosecutor withdrew Exhibit 3 and offered Exhibit 4 into evidence. Defense counsel did not object.
[THE PROSECUTOR]: ... At this time the State would withdraw State’s Exhibit 3 for identification and would and [sic] to put in evidence State’s Exhibit 4 for identification being a redacted copy of the judgment in Criminal Number 57406.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: No objection.
Thus, although Defendant sought to preserve his objection to Exhibit 3, he did not raise an objection to Exhibit 4. “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record....” HRE Rule 103(a)(1) (1985). There being no objection in this case, we examine this matter for plain error. HRPP Rule 52(b); HRE Rule 103(d) (1985).
Exhibit 4 had been properly authenticated by certification through Exhibit 3 and Exhib-. it 4 was relevant to prove the conviction of a “Darren James Holbron[.]” HRE Rule 401 (1985). The pertinent issue, however, is whether, without more evidence or further court instruction, the jury might be allowed to infer that the reference to “W-36752” in the right margin of Exhibit 4 meant the person fingerprinted for Report No. W36752 was also the person referred to in the judgment.
On appeal, the State “agrees, as it must, that there was no direct testimony that established that the defendant in [Criminal] No. 57406 was the person whose fingerprints were submitted under police report no. W36752[.]” However, it maintains that “the lower court could have reasonably inferred from all of the facts before it and based upon its own prior experience, that the person whose fingerprints appeared in police report [sic] was the person who was convicted in [Criminal] No. 57406.”
This argument misses the mark for two reasons. First, although the court might, based on prior experience, be familiar with a practice of placing the relevant police report number on the corresponding judgment, such a practice was not established at trial. Second, the element of conviction under Counts III and IV was a question of fact for the trier of fact, in this case, the jury, not the trial court. The jury presumably did not have any prior lay experience with the processing of judgment documents in criminal cases.
Without evidence showing that it was the general practice to place the relevant police report number on the corresponding criminal judgment or that that was actually intended in this case, we believe that the foundation was insufficient to allow the inference that Defendant was the person named in the judgment.
Both the prosecuting attorney and the defense counsel had anticipated that a parole officer would testify at trial and identify Defendant as the person referred to in the judgment. However, the prosecuting attorney learned near the time of trial that Defendant was never paroled for the offense referred to in the judgment. In the absence of a parole officer, the State should have ob
tained
Consequently, we hold that the admission of Exhibit 4 into evidence was further reversible error.
V.
Therefore, based on the foregoing reasons, the Second Amended Judgment filed on December 17, 1992 is affirmed as to Counts I and II and vacated and remanded for a new trial as to Counts III and IV of the indictment.
Notes
. Hawai‘i Revised Statutes (HRS) § 134-7(b) (Supp. 1994) now provides:
(b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.
Essentially, the amendment added “has been bound over to the circuit court for[J”
. The exception clause refers to the standard of proof applicable when affirmative defenses are raised and does not apply here.
.
No person who is under indictment or who has waived indictment for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or of the ilegal sale of any drug, shal own or have in the person’s possession or under the person’s control any firearm or ammunition therefor.
. The jury instructions stated:
In Count 3 of the Complaint, Defendant is charged with the offense of Possession of Firearm By a Person Convicted of Certain Crimes.
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There are two material elements to this offense, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That the Defendant did own, possess, or control a firearm.
2. That the Defendant did so having been previously convicted in the State of Hawaii [Hawai‘i] or elsewhere of having committed a felony.
In Count 4 of the Complaint, Defendant is charged with the offense of Possession of Ammunition By a Person Convicted of Certain Crimes.
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There are two material elements to this offense, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That the Defendant did own, possess, or control ammunition for a firearm.
2. That the Defendant did so having been previously convicted in the State of Hawaii [Hawai‘i] or elsewhere of having committed a felony.
. Compare State v. Pinero, 75 Haw. 282, 302, 859 P.2d 1369, 1379 (1993), in which the defendant‘s “concessions at trial concerning the point he now raises as ‘plain error’ effectively foreclose^] any argument that his rights were substantially prejudiced by the erroneous instruction.” Thus, the supreme court determined that “the trial court did not commit ‘plain error[.]’ ” Id. at 292, 859 P.2d at 1374. Although the defendant in Pinero did not testify, his concessions were made in his opening and closing arguments. Id. at 302, 859 P.2d at 1379. Here, there is no indication in the record that Defendant conceded that he possessed the state of mind required as an essential element of the offenses charged in Counts III and IV. Nor does the State contend that he did.
.
Because this case was tried in the Circuit Court of the First Circuit, the prosecution had to establish that the offense was committed in the first circuit. Hawaii Rules of Penal Procedure Rule 18. “The first judicial circuit covers the Island of Oahu [O‘ahu], all other islands belonging to the state (other than Maui, Molokai [Moloka‘i], Lanai [Lana‘i], Kahoolawe [Kaho‘olawe], Moloki-ni, Hawaii [Hawaii], Kauai [Kaua‘i], and Niihau [Ni‘ihau]), and the district of Kalawao on the Island of Molokai [Moloka‘i].”
State v. Correa,
5 Haw.App. 644, 650, 706 P.2d 1321, 1325 (1985).
Accord
. In the transcript, during the testimony of the neighbor, Hyram is spelled “Hiram.”
. State’s Exhibit 3 (Exhibit 3) was withdrawn at trial and is not in the record on appeal. But an unredacted copy of the judgment in Criminal No. 57406 was received into evidence at Defendant’s sentencing hearing and is part of the record on appeal.
.Defendant’s objections were: failure to properly authenticate Exhibit 3 (the document was subsequently authenticated by certification), relevancy, violation of the court‘s ruling on a motion in limine prohibiting an indication of the crime previously committed, and lack of notice that the Honolulu Police Department fingerprint classifier would testify.