Lead Opinion
Opinion of the Court by
Petitioner/Defendant-Appellant James Murray (Petitioner) filed an application for
Respondent/Plaintiff-Appellee State of Ha-wai'i (Respondent) did not file a memorandum in opposition.
I.
The following matters, some verbatim, are taken from the parties’ submissions and from the record.
During motions in limine, defense counsel stipulated to [Petitioner’s] prior abuse convictions. The [court] never conducted a colloquy with [Petitioner] regarding the stipulation. Based on the stipulation, defense counsel requested that the [court] preclude the introduction of the priors. The [court] denied the defense counsel’s request^]
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On the first day of evidence, [Respondent] read the stipulation into evidence. The [court] did not instruct the jury with a limiting instruction either before or after the introduction of the stipidation.
Jennifer Murray [ (Jennifer) ], [Petitioner’s] estranged wife, testified that on! the date of the incident, she and [Petitioner] were living separately.... [Petitioner] arrived at Jennifer’s residence and demanded to see their daughter.... [Petitioner] pushed her causing Jennifer to fly forward but she did not fall. Jennifer did not feel pain from the push.
... Jennifer testified that [Petitioner] pushed her a second time. The second shove hurt Jennifer and she got upset. From behind, [Petitioner] grabbed Jennifer and caused scratches to her chest, redness, and red marks. Jennifer also testified that her right upper arm/shoulder hurt although there were no visible injuries. Later, a poliefe officer arrived at the house and photographed scratch marks on Jennifer’s right lower collar bone.
(Emphases added). Thereafter,
[a]n Amended Complaint filed on February 9, 2005 charged [Petitioner] with violating*6 HRS § 709-906 by causing physical abuse to his wife, [Jennifer], on or about January 18, 2005, “within two (2) years of a second or subsequent conviction of Abuse of Family or Household Member.”
However, “[djuring the charge to the jury, the [court] failed to instruct the jury with a limiting instruction regarding [Petitioner’s] prior convictions. ...” (Emphasis added).
II.
Petitioner raises the following questions in his application:
1. Whether the ICA gravely erred in holding that where a violation of HRS § 709-906 is charged as a felony offense, the prior convictions constitute an element of the offense.
2. Whether the ICA gravely erred in holding that defense counsel’s stipulation to an element of the offense constituted a tactical decision that can be made solely by counsel and, thus, that it did not require a knowing, intelligent, or voluntary waiver by the defendant of his right to have that element proven to a jury beyond a reasonable doubt.
3. Whether the ICA gravely erred in holding that the trial court’s failure to instruct the jury with a limiting instruction regarding the defendant’s prior convictions did not constitute reversible error.
(Brackets omitted.)
III.
As to the first question, Petitioner argues “[t]he offense of felony [a]buse is a recidivist statute where the prior convictions are extrinsic sentencing factors determined by the trial court” as opposed to a “status offense” where “the prior conviction is an element of the offense[,]” because (1) “the statute refers to the prior convictions in the penalty subsection of the statute, separate and apart from the definition of the offense[,]” (2) “[t]he legislature specifically stated that the amendments were to ‘clarify sentencing provisions[,]’ not to add an element to the felony offense, see ... Stand. Com. Rep. No. 1268 (2003) (emphasis added)[,]” and (3) “[t]he difference between HRS §§ 709-906(7) and 291E-61(b)(l)(4) [as construed in State v. Domingues,
In its answering brief, Respondent correspondingly argued that prior convictions constituted elements because (1) “[t]o be convicted under subsection (7) [of HRS § 709-906], a defendant must have committed ‘a third or any subsequent offense that occurs within two years of a second or subsequent conviction[ ]’ ... [which] describes an attendant circumstance—an essential element—that [Respondent] needs to prove beyond a reasonable doubt[,]” (2) as in Domingues, “the prefatory language in HRS § 709-906(5)(a) and (b) and HRS § 709-906(7) describe attendant circumstances that are intrinsic to and enmeshed in the hierarchy of offenses that HRS § 709-906 ... describes [and, a]s such, ... the essential element that [Respondent must prove was that Petitioner] committed the instant abuse within two years of a second or subsequent eonviction[,]” (3) “[i]n 1998, ... [in] the creation of a felony abuse offense[,] ... the legislature stated that ... ‘an enhanced grade of offense for repeat criminal behavior sends a message to the repeat offender ... and mil be treated as a serious offensel,]’ Sen. Stand. Comm. Rep. No. 3252, in 1998 Senate Journal, at 1314 (emphasis added),” (4) in 2002, the legislature, in amending subsection (7) to read, “[f]or a third or any subsequent offense ... that occurs within two years[,]” said that “[t]his measure ... limit[s] misdemeanors to the first and second offense, while making it a class C felony for any third and subsequent offense.”
With reference to the first question, the ICA held “the fact that [Petitioner] committed his crime “within two (2) years of a second or subsequent conviction of Abuse of Family or Household Member’ is an ‘intrinsic fact’ that must be determined by the jury[,]” and (2) “[a] stipulation of that fact does not violate the defendant’s due process rights by impermissibly lessening the prosecution’s burden to prove that material element[, therefore, it is a tactical decision permissibly made by counsel for the defendant.”
V.
On February 9, 2005, Respondent charged Petitioner by complaint as follows:
That on or about the 18th day of January, 2005, in the County of Maui, State of Hawaii, JAMES MURRAY within two (2) years of a second or subsequent conviction of Abuse of Family or Household Member in violation of Section 709-906 of the Hawaii Revised Statutes, did intentionally, knowingly or recklessly engage in and cause physical abuse of a family or household member, to wit Jennifer Murray, thereby committing the offense Felony Abuse of Family or Household Member in violation of Section 709-906(7) of the Hawaii Revised Statutes.
HRS § 709-906 (Supp.2004) states in pertinent part:
(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member.
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(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and
(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a ‘repeat offender’ and serve a minimum jail sentence of thirty days.
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(7) For a third or any subsequent offense that occurs unthin two years of a second or subsequent conviction, the person shall be charged with a class C felony.
(Emphasis added).
A.
Under HRS § 709-906 the prosecution would need to prove first that Petitioner “physically abuse[d] a family or household member” in violation of HRS § 709-906(1) and second that the violation was Petitioner’s “third or any subsequent offense that oc-eur[ed] within two years of a second or subsequent conviction ...” in violation of HRS § 709-906(7) as was charged in the complaint. HRS § 702-205 (1993) states:
The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction).
Conduct is defined in HRS § 701-118(4) (1993) as “an act or omission, or, where
Although the Hawaii Penal Code does not define the term “attendant circumstances,” in State v. Aiwohi,
Additionally, in the foregoing subsections of HRS § 709-906, the degree of punishment escalates depending on whether the violation is a first offense, second offense, or third or any subsequent offense that occurs within two years of a second or subsequent conviction This court has stated that when “the degree of punishment for a violation ... escalates as a function of whether the violation” was committed within a certain number of years of a prior offense, such language “describes attendant circumstances that are intrinsic to and enmeshed in the hierarchy of offenses that [the statute] as a whole describes.” Domingues,
[Aggravating circumstances] ... intrinsic to the commission of the crime charged ... must be alleged in the [charging instrument] in order to give the defendant notice that they will be relied on to prove the defendant’s guilt and support the sentence to be imposed, and they must be determined by the tiler of fact.
Domingues,
B.
Also, “[whether the offense] was a third or any subsequent offense that occur[ed] within two years of a second or subsequent conviction” defines the felony offense of HRS § 709-906(7) as opposed to the misdemeanor offenses set forth in § 709-906(5)(a) and (b). By reason of the express language of subsection 7, the particular offense charged includes the words describing the class C felony version of abuse. HRS § 709-906(7). Hence, the foregoing reference to a prior conviction set forth in HRS § 709-906(7) is “specified by the definition of the offense[J” See HRS § 702-205.
The legislative history of HRS § 709-906 supports the conclusion that HRS § 709-906(7) defines a felony offense. Previously, in 1998, HRS § 709-906 was amended to include subsection (7) as follows: “(7) For any subsequent offense occurring within two years after a second misdemeanor conviction, the person shall be charged with a class C felony.” 1998 Haw. Sess. L. Act 172, § 8 at 647. At that point the legislature stated that “an enhanced grade of offense for repeat criminal behavior sends a message to the repeat offender that such behavior will not be tolerated and will be treated as a serious offense.” Sen. Stand. Comm. Rep. No. 3252, in 1998 Senate Journal, at 1315 (emphases added).
In 2002, HRS § 709-906(7) itself was amended to read, “(7) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction,
Thus, proof that the offense was Petitioner’s third or subsequent offense is an attendant circumstance which “negative[s] a defense[.]” HRS § 702-205(b). Arguably, a defense to a charge that Petitioner committed a class C felony offense would be that the offense was not Petitioner’s “third or any subsequent offense that oceur[ed] within two years of a second or subsequent conviction[.]” HRS § 709-906(7). In order for the prosecution to negate Petitioner’s potential defense against the offense constituting a felony violation of HRS § 709-906, the prosecution must prove at least two prior convictions, and that the offense occurred within two years of the second or subsequent offense. Thus, pursuant to the definition of “element” set forth in HRS § 702-205, the prior conviction reference in HRS § 709-906(7) constitutes an element of the offense of the abuse charge.
VI.
A.
As to the second question, Petitioner argues (1) “[fundamental rights, such as [Respondent’s] burden to prove each element of the offense beyond a reasonable doubt, cannot b.e waived or stipulated to by defense counsel[; o]nly the accused can knowingly, intelligently, and voluntarily waive a fundamental right[,]” (2) “[d]efense counsel cannot stipulate to matters that go beyond tactical and procedural matters[,] State v. Casey,
In response, Respondent had correspondingly said (1) “[Petitioner] waived this issue by failing to object, invited error, and [Petitioner] should be judicially estopped from raising this issue[,]” (citing State v. Adler,
In reply, Petitioner maintains (1) “[Petitioner] did not invite the error and he is not raising inconsistent positions[,]” (2) “[Petitioner] should not be estopped from raising the issue because it was the [court’s] duty to ensure that the waiver of his constitutional right to a jury trial was done intelligently, knowingly, and voluntarily[,]” (3) “the relinquishment of a fundamental right must be done by the benefieiary[, s]ee ... State v. Young,
B.
With respect to these foregoing issues, the ICA framed “the ... question [as] whether an ‘instructional error’ occurred when the court did not instruct the jury that it could
VII.
As to Petitioner’s second question, pursuant to HRS § 701-114, the prosecution has the burden of proving each element beyond a reasonable doubt. “Where a prior conviction is an essential element of the offense charged, proof of the prior conviction is an exception to the general rule that evidence of the commission of other crimes is inadmissible.” State v. Buffalo,
The defendant’s right to have each element of an offense proven beyond a reasonable doubt is a constitutionally and statutorily
A.
Waiver of a defendant’s fundamental rights must be knowing and voluntary, and must come directly from the defendant. State v. Ibuos,
Hawaii Rules of Penal Procedure (HRPP) Rule 5(b)(1) requires that “the court shall in appropriate cases inform the defendant that he has a right to [a] jury trial in the circuit court or may elect to be tried without a jury in the district court.” “Appropriate cases” arise whenever the accused has a constitutional right to a jury tri*11 al.... In Hawaii, a statutory right to a jury trial arises whenever a criminal defendant can be imprisoned for six months or more upon conviction of the offense. HRS § 806-60. Because a person convicted of the offense of Abuse of a Family or Household Member, a misdemeanor, may be imprisoned for up to one year, (see HRS § 706-663 (Supp.1992)), the court had a duty to inform Ibuos of his right to trial by jury in order to ensure a knowing and voluntary tvaiver of that right. Failure to obtain a valid waiver of Ibuos’s fundamental right constitutes reversible etror.
Id. at 120,
As recounted above, the Ibuos court stated that a knowing and voluntary waiver of a defendant’s fundamental right must come directly from the defendant, and requires the court to engage in a colloquy with the defendant. Id. at 121,
Similarly, Tachibana v. State,
Tachibana determined that the trial court must engage in an on-the-record colloquy to ensure that the defendant knowingly and voluntarily waived his constitutional right to testify. Id. at 235,
One approach would require the trial court to engage in an on-the-record colloquy with every defendant to ensure a defendant’s right is knowing and voluntarily waived. Id. Other courts have adopted the “demand rule,” holding that a defendant who fails to complain about the right to testify during trial is conclusively presumed to have waived that right. Id. The “demand rule” has been justified in two ways. Some courts find that the right to testify is not a fundamental right and other courts presume that a defendant has knowledge of the right to testify, having been educated of such a right “by television and past courtroom experience[.]” Id. (quoting United States v. Martinez,
The Tachibana court adopted the colloquy approach on the ground that it would “best protect defendants’ rights while maintaining the integrity of the criminal justice system.” Id. at 234,
[B]y engaging in the colloquy, a trial judge would establish a record that wotdd effectively settle the right-to-testify issues in the case, and thereby relieve the trial judge of extended post-conviction proceedings. If the trial court does not establish on the record that the defendant understands and knowingly waives his [or her] right to testify, it is difficult to establish [after trial] whether such a waiver occurred. Thus, many defendants would be*12 able to raise colorable claims that their right to testify had been violated. Hence, as a 'practical matter, courts would be forced to inform defendants of the right to testify so as to avoid a post-hoc invalidation of the entire trial. Thus, the administrative burden of the colloquy requirement on the trial judge, as well as the appellate court, would in all likelihood be much less than the burden under the post-trial challenge method ... [and] would best serve ... the interests of all parties in the administration of justice.
Id. at 235,
In concluding that the trial court is required to engage in a colloquy with the defendant, Tachibana noted that the trial court is mandated to engage in such colloquies with criminal defendants regarding waiver of other fundamental rights, and therefore, there was no reason why colloquies regarding the right to testify should be any different:
Moreover, the trial courts in this state are already required to engage in on-the-record colloquies with criminal defendants when the waiver of other fundamental rights are at issue. See, e.g., State v. Kupau, 76 Hawai'i 387, 395-96 n. 13,879 P.2d 492 , 500-01 n. 13 (1994) (right to included offense instructions); State v. Ibuos,75 Haw. 118 , 121,857 P.2d 576 , 578 (1993) (right to trial by jury); State v. Vares,71 Haw. 617 , 622-23,801 P.2d 555 , 558 (1990) (right to counsel); Conner v. State,9 Haw.App. 122 , 126,826 P.2d 440 , 442-43 (1992) (right to have guilt proved beyond a reasonable doubt (i.e., entry of guilty plea)).... [Tjhere does not appear to be any reason why colloquies regarding the right to testify should be any different.
Id. at 235-36,
B.
As a general principle, then, Ibuos and Tachibana prohibit the waiver of a defendant’s fundamental right without the trial court fust engaging in a personal on-the-record colloquy with the defendant to ensure such rights are voluntarily and knowingly waived. Those cases indicate that a colloquy between the trial court and defendant is the best way to ensure that a defendant’s constitutional right such as waiver of proof of an element is protected, and that the defendant has knowingly and voluntarily waived such a right. In that light, the colloquy approach also best promotes judicial efficiency by establishing on the record that the defendant has voluntarily waived an element of the offense. Without such a record it is difficult to determine whether the defendant personally waived such a right. As exemplified in Tachibana, the trial court, by engaging in a colloquy with the defendant, would prevent or reduce post-trial challenges. Additionally, trial courts are already required to engage in colloquies with defendants regarding the waiver of other fundamental rights as noted in Tachibana and consistent with this practice, the trial court must conduct a colloquy regarding waiver of proof of an element of the offense.
VIII.
Ferguson is also instructive on the issue of mandatory colloquies. In that case the defendant was charged with, inter alia, possession of firearms by a convicted felon.
That court determined that a defendant could stipulate to the element of a prior felony conviction provided that the court engage in an on-the-record colloquy with the defendant acknowledging the prior felony conviction and acceding to the stipulation.
[W]hen a criminal defendant offers to stipulate or admit to the conyicted-felon element of the felon-in-possession-of-a-firearm charge, the circuit court must accept that stipulation or admission, conditioned by an on-the-record colloquy with the defendant acknowledging the underlying pri- or felony conviction and acceding to the stipulation or admission.
Id. at 57 (citing Brown v. State,
IX.
Although stipulations are ordinarily binding, “[a] stipulation in and of itself may be set aside if it was made inadvertently, unadvisedly or improvidently and will operate inequitably and to the prejudice of one of the parties, provided all ... parties may be placed in the condition in which they were before the stipulation was made.” In re Doe,
X.
Respondent contends that Petitioner waived the foregoing issue by failing to object. Under similar circumstances, in Tachibana, the prosecution contended that it would be an absurdity to allow Tachibana another trial based on his claim that his right to testify had been violated by the unilateral action of his attorney. Tachibana,
Many defendants are unaware that they have a constitutional right to testify which no one, not even their laivyer, may take away from them.
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[T]he defendant ... may not know that an objection must be made during trial or that right is forever lost. Further, in Johnson v. Zerbst the Court was unwilling to “presume acquiescence in the loss of fundamental rights.”304 U.S. at 464 ,58 S.Ct. at 1023 . In sum, the demand rule requires a defendant to assert a right of which the defendant may not be aware by objecting in a manner the defendant has been told is inappropriate. We decline to adopt a rule which places such burdens on the exercise of a fundamental constitutional right.
Id. (emphases added) (citation and quotation marks omitted). Similarly, with respect to the waiver of proof of an element, many defendants may not know that they have a
Second, Respondent contends that Petitioner’s failure to object invited error and thus Petitioner should be judicially estopped from raising the issue. However, the Ibuos court refused to consider the “invited error doctrine,” choosing instead to follow State v. Smith,
Third, Respondent contends that even if the proof of the element is not deemed waived, Petitioner’s substantial rights were not adversely affected because Respondent had the burden of proving each element of the offense beyond a reasonable doubt. However, the court instructed that jury that it “must accept as conclusively proved any fact to which the patties have stipulated.” In essence, the stipulation satisfied Respondent’s burden of proving an element beyond a reasonable doubt. A colloquy would have ensured that the defendant understood that a stipulation to his prior convictions amounted to satisfying Respondent’s burden of proving an element of the offense beyond a reasonable doubt.
XL
Because, as indicated supra, the court did not engage Petitioner in a colloquy regarding waiving proof of an element of the charge, the judgment must be vacated and the case remanded for a new trial. In that circumstance we discuss Petitioner’s argument, in conjunction with the first question, that the jury should not have been informed of the stipulation and his third question regarding limiting instructions because they are relevant to a new trial.
In conjunction with Petitioner’s objection to the submission of the stipulation to the jury, Petitioner argues (1) “[ajssuming ar-guendo that [Petitioner’s] prior convictions constituted elements of the offense, the [court] ... erred in submitting the priors to the jury because they had been already stipulated to[ and thus, they were] ... irrelevant [and] overly prejudicial,] ... [under] Rules 402, 403 of the Hawai'i Rules of Evidence,” (2) “[i]n Old Chief v. United States,
B.
Old Chief considered whether a defendant can stipulate to prior convictions, as opposed to the government proving the element by introducing a record or judgment or other similar evidence. In Old Chief, the subject “statute ma[de] it unlawful for anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year’ to ‘possess in or affecting commerce, any firearm[.]’ ”
moved for an order requiring the Government “to refrain from mentioning [the pri- or conviction] ..., except to state that the Defendant ha[d] been convicted of a crime punishable by imprisonment exceeding one (1) year.” ... [H]e offered to “solve the problem here by stipulating ... [to the fact] that he has been convicted of a crime punishable by imprisonment exceeding one (1) year.” He argued that the offer to stipulate to the fact of the prior conviction rendered evidence of the name and nature of the offense inadmissible under Rule 403 of the Federal Rules of Evidence, the danger being that unfair prejudice from that evidence would substantially outweigh its probative value.
Id. (internal citations omitted) (emphasis in original). The question as posed by the Court was as follows:
Subject to certain limitations, 18 U.S.C. § 922(g)(1) prohibits possession of a firearm by anyone with a prior felony conviction, which the Government can prove by introducing a record of judgment or similar evidence identifying the previous offense. Fearing prejudice if the jury learns the nattire of the earlier crime, defendants sometimes seek to avoid such an informative disclosture by offering to concede the fact of the prior conviction. The issue here is whether a district court abuses its discretion if it spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and ivhen the purpose of the evidence is solely to prove the element of prior conviction. We hold that it does. . '
Id. at 174,
The United States Supreme Court recognized the potential prejudice of submitting evidence of the name or nature of the prior offense. Id. at 185,
The Court explained that “[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission and underscored in the court’s jury instructions.” Id. at 190-91,
C.
However, some courts have relied upon Old Chief and extended it to preclude completely the introduction of prior conviction evidence to the jury where that evidence establishes a status element of the offense and a defendant offers to stipulate to such a conviction. For example, in State v. Nichols,
The West Vuginia court reiterated this rule in State v. Dews,
Other courts have adopted various approaches to whether prior conviction stipulations should be removed from the jury’s consideration. In State v. Saul,
That court further noted that although it is “the general rule that the prosecution is not bound by the defendant’s offer to stipulate^]” if “a defendant stipulates to the prior convictions ... he effectively removes that element of the crime from the charge, and we do not see any reason why evidence of the prior convictions should be submitted to the jury unless they are relevant to some disputed issue[.]” Id. at 575 (citations omitted).
Similarly, in State v. Berkelman,
Now, evidence has been introduced concerning an alleged prior conviction of the defendant for driving while under the influence. This evidence was received because I have ruled that such proof is an essential element of the offense charged in the complaint in this case. You may not consider this evidence as evidence that the defendant was driving or had an alcohol concentration of more than 0.10 in his blood [on the present occasion.]
Id.
Finally, in Ross v. State,
XII.
As to the third question, Petitioner argues that, assuming the jury is told of the stipulation, (1) the court must give a limiting instruction both “prior to the introduction of
Respondent maintains that (1) “the [defense’s failure to] request a limiting instruction regarding [Petitioner’s] prior conviction at any time during trial ... constitutes waiver,” (2) “defense counsel’s withdrawal of the proposed limiting instruction may have invited error[,]” (3) “[Petitioner] should be judicially estopped from raising this issue,” (emphasis in original)
The ICA did not express an opinion as to this issue.
XIII.
A.
A limiting instruction is necessary when the jury may only consider particular evidence for one element of an offense but not for another.
recognize[d] that expert medical testimony regarding what the severity of a person’s injuries would have been absent medical attention could be relevant to prove that a defendant committed the offense of attempted assault in the first degree by “intentionally engaging in conduct which was a substantial step in a course of conduct intended or known to cause” serious bodily injury. See HRS §§ 705-500(2) (1993), 707-710(1). We further note that when such evidence is admitted to prove that a defendant committed the offense of attempted assault in the first degree, the defendant will be entitled to a limiting instruction, see [Hawaii Rules of Evidence (HRE) ] Rule 105 [1993], to ensure that the jury understands that the evidence cannot be used to establish that “serious, permanent disfigurement" actually occurred.
State v. Meyers,
B.
State v. Green,
The United States Supreme Court in Spencer v. Texas, ... upheld the constitutionality of a Texas recidivist statute which permitted the state to fully inform a jury, during a defendant’s trial on the pending criminal charge, of the defendant’s past convictions when the jury was also charged that such matters were to be considered only for the limited purpose of enhancement of punishment and not for deciding guilt or innocence. It folloivs from the high court’s rationale that a recidivist procedure is unconstitutional, when it allows evidence of defendant’s past crimes to be admitted for punishment enhancement during the guilt determination trial, unless the procedure requires a jury instruction as to the limited purpose of the prior crime evidence.
Id. at 590-91 (emphasis added). Green also explained that two United States Courts of Appeal expanded Spencer by holding that admission of a prior conviction without a limiting instruction is so prejudicial that it constitutes plain error. Id. at 591 (citing Dawson v. Cowan,
In both Dawson and Evans, which involved the admission of prior convictions, the defendant failed to request a limiting instruction and the court did not give such an instruction sua sponte. Dawson,
In both Dawson and Evans, evidence of prior convictions was prejudicial to the defendant because such evidence could unduly influence a jury to conclude that the defendant is a “bad person,” or more likely to have committed the offense, leading it to improperly convict the defendant based on those considerations. Cf. Tavares,
C.
We now adopt an approach specifically concerning the use of prior convictions to prove an element of a charged offense. As discussed above, the cases have generally adopted two initial steps in applying statutes aimed at recidivist conduct or habitual offenders. First, if a defendant decides to stipulate to the prior convictions, the trial court must accept the stipulation. Second, the trial court must engage defendant in a colloquy to confirm that defendant under
These two requirements are widely established but thereafter approaches differ as to how the trial court utilizes the stipulation once it is accepted. To summarize, the trial court could: (1) exclude all evidence of the prior convictions from the jury; (2) inform the jury that defendant has stipulated to the prior convictions with an instruction that the jury must consider the prior convictions as conclusively proven, but that the jury may not consider the prior convictions for any purpose other than as conclusive proof of the particular requisite element of the offenses charged in the case; or (3) bifurcate the trial.
This court has already rejected the third approach. See State v. Olivera,
This court noted that the “prior conviction which [the defendant] sought to keep from the jury [was] an element of the crime for which [the defendant] was charged[.]” Id. at 346,
In choosing between the other approaches, we adopt a variation of the second approach. Under the chosen approach, the defendant should be allowed to stipulate to the fact of the required prior convictions.
Second, the jury should be instructed that the defendant has stipulated to this particular- element of the charged offense to make it plain that this element is considered proven beyond a reasonable doubt.
D.
In the instant case, Petitioner’s prior convictions were admissible only with respect to the element of whether Petitioner had two or more prior convictions, the last of which occurred within two years of the date of the charged offense in violation of HRS § 709-906(7). The jury was not to consider evidence of Petitioner’s prior convictions with respect to whether Petitioner physically abused a household or family member on January 18, 2005, the specific ,date of the offense charged. Hence, the court abused its discretion when it denied Petitioner’s request to prohibit Respondent from informing the jury of the nature of the prior convictions to which Petitioner had stipulated. This error was compounded by the failure to instruct the jury that the stipulation could be used only to prove the prior conviction element and was not otherwise to be considered in relation to the current offense.
XIV.
In conclusion, on remand, if Petitioner wishes to stipulate to the prior convictions, the court must accept his stipulation. The stipulation may be accepted only after engaging Petitioner in an on-the-record colloquy regarding Petitioner’s constitutional rights, and ensuring that Petitioner is making a knowing and voluntary waiver of his right to have the prior convictions proven beyond a reasonable doubt and decided by a jury. If such a stipulation is accepted, the court must instruct the jury of the following: (1) conviction under HRS § 709-906(7) requires the prosecution to prove beyond a reasonable doubt the element that defendant has had at least two prior misdemeanor convictions, the last of which occurred within two years of the charged offense; (without indicating that the two prior convictions must be for abuse of a household or family member); (2) defendant has stipulated to at least two prior misdemeanor convictions, the last of which occurred within two years of the charged offense; (3) the stipulation is evidence only of the prior conviction element; (4) the prior conviction element of the charged offense must be taken as conclusively proven; (5) the jury is not to speculate as to the nature of the prior convictions; and (6) the jury must not consider defendant’s stipulation for any other purpose.
XV.
Based on the foregoing, the ICA’s February 6, 2007 judgment is reversed, the court’s September 13, 2005 judgment is vacated, and the case is remanded to the court for a new trial.
Notes
. Pursuant to Hawai'i Revised Statutes (HRS) § 602-59 (Supp.2006), a party may appeal the decision and judgment of the intermediate appellate court (the ICA) only by an application to this court for a writ of certiorari. See HRS § 602-59(a). In determining whether to accept or reject the application for writ of certiorari, this court reviews the ICA decision for:
(1) Grave errors of law or of fact; or
(2) Obvious inconsistencies in the decision of the [ICA] with that of the supreme court, federal decisions, or its own decision,
and the magnitude of such errors or inconsistencies dictating the need for further appeal.
HRS § 602-59(b). The grant or denial of a petition for certiorari is discretionary with this court. See HRS § 602-59(a).
. The memorandum opinion was issued by Chief Judge James S. Burns and Associate Judges Cor-óme K.A. Watanabe and Alexa D. Fujise.
. The Honorable Reinette W. Cooper presided. The court sentenced Petitioner to probation for five years and to pay a $150 Probation Sendee Fee, a $105 Criminal Injuries Compensation Fee, and $500 or the actual costs of DNA analysis, whichever is less. As a special condition of probation, Petitioner was ordered to serve a six-month term of imprisonment; however, five months were suspended if Petitioner abided by the terms and conditions of probation, the remaining thirty days to be served on 15 consecutive weekends.
.HRS §§ 709-906(1) and (7) state as follows:
Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.
For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.
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(7) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the person shall be charged with a class C felony.
. In reply, Petitioner argued (1) "[t]he inclusion of the priors in a complaint or information does not ... make proof of the prior convictions elements [sic] of the offense[,]” (2) "[b]oth HRS § 706-605.5, sentencing of repeat offenders, and HRS § 706-662(1), (3), and (4), extended term sentencing!,] categorized prior convictions as extrinsic sentencing factors for a judge to deter
. In 2006, the legislature further amended HRS § 709-906(7) to provide that "[f]or a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense shall be a class C felony.” 2006 Haw. Sess. L. Act 230, § 46 at 1022.
. The court instructed the jury in pertinent part that, "Five: You must accept as conclusively proved any fact to which the parties have stipulated.”
. HRS § 701-114 (1993) states as follows:
(1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
(a) Each element of the offensef.J
(Emphases added).
. Respondent contends that because Petitioner failed to request a limiting instruction, Petitioner waived the issue and should be judicially es-topped from raising it. Under the disposition proposed, this matter need not be decided.
It may be noted, however, that this court has held that "[a]s a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error.” State v. Sawyer,
In order to determine whether a defendant’s substantial rights have been affected the court must determine "whether there is a reasonable possibility that the error might have contributed to conviction." State v. Gonsalves,
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. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. [However, e]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that etror might have contnbuted to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.
Id. at 292-93,
. Respondent refers to State v. Cardin,
Likewise, in People v. Hall,
. Under the disposition here, items 1-3 need not be discussed.
. In reply, Petitioner argues: (1) "[r]egardless of whether the defense withdrew its request for a limiting instruction during the settlement ... the [court] committed the error ... before jury instructions were settled,” (2) "[i]t is the [court’s] ultimate responsibility and duty to properly instruct the jury even when the defense objects[,]” (citing State v. Haanio,
.Hawai'i Rules of Evidence (HRE) Rule 105 provides:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Petitioner did not request a limiting instruction in this case.
. Under our adopted approach, failure to allow the defendant to use the stipulation procedure would not be considered harmless error. Contra, Berkelman,
. We observe that "[tjhere is no bnght-line rule ” for determining when {i.e., before the evidence is introduced and/or at the conclusion of the trial) the trial court should issue a limiting instruction. State v. Cordeiro,
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. Inasmuch as I believe the majority misapplies Tachibana v. State,
The majority rejects the Respondent’s assertion that Petitioner waived the admissibility issue of his counsel’s stipulation because Petitioner failed to object. Majority opinion at 13-14,
Moreover, contrary to its interpretation, the language emphasized and relied on by the majority illustrates the tenuous situation a defendant finds himself when his counsel takes away his constitutional rights and the defendant “may not know that an objection must be made during trial or that right is forever lost.” Majority opinion at 13,
A defendant’s counsel has “the duty to inform a defendant of the existence of certain constitutional rights[,j” inasmuch as “a trial court can justifiably presume, based on a defendant’s conduct or silence, that a defendant is aware of and has waived certain rights.” Tachibana,
The majority’s holding represents a logical progression in this court’s continued intrusion into and erosion of this relationship,
While I share in the majority’s decision that a limiting jury instruction should have been given, I must dissent from the majority’s disposition because (1) the majority misapplies Tachibana in addressing Respondent’s preservation argument, and (2) I decline to condone a course of conduct that encourages clever trial tactics and gamesmanship by counsel at the expense of protecting and preserving her client’s constitutional rights. For the foregoing reasons, I would affirm the ICA’s February 6, 2007 judgment, which affirms the family court of the second circuit’s September 13, 2005 judgment of conviction.
. Indeed, the defendant in Tachibana "frequently expressed his desire to testify” to his counsel during trial recesses, and his "defense team decided as a tactical matter that it would be best not to call Tachibana as a witness.”