Lead Opinion
Opinion of the Court by
I. Introduction
The State asks us in this appeal to overrule the plurality opinion in State v. Stenger,
Since Stengels publication, our appellate courts have interpreted the case inconsistently. A dissent to one of our dispositions notes that Stenger held that a trial court has a duty to sua sponte give a jury instruction on a defense that the defendant has not asked for, where there is some evidence supporting the defense, no matter how weak, inconclusive, or unsatisfactory the evidence may be. See, e.g., State v. Pang, No. 29003,
In the process of clarifying Stenger, we also reexamine our holding in State v. Nichols,
Blind adherence to legal rules constitutes an abrogation of the judicial function. Such blind adherence may result as much from adoption of a rule without adequate analysis as from application of a precedent without examination of its claim to validity. Legal rules should result from, rather than be a substitute for, legal analysis. Judicial rumination of ideas in a multitude of factual circumstances gives birth to rales. And continued rumination insures that such rules will be applied only as long as they serve the function for which they were designed.
Columbia Casualty Co. v. Hoohuli,
II. Background
A. The Trial
Respondent/Defendant-Appellant Pamela Taylor was charged by Felony Information and Non-Felony Complaint with Theft in the Second Degree, in violation of HRS §§ 708-830(2) (1993)
Taylor defended against these allegations by asserting that she herself was a victim of deception. She testified she believed she was offering legal services to Bereday on behalf of Ismael Serna Lara
The complaining witness, Mariko Bereday, testified to the events leading up to Taylor’s prosecution as follows. Bereday’s friend had referred Taylor to her as an attorney. When Taylor went to Bereday’s home for their first meeting, Taylor stated she was previously a federal public defender but was currently an attorney working at a 35-person law firm.
Taylor went to Bereday’s home again with a retainer agreement, which Bereday did not sign, and asked for a $30,000 retainer. Because Bereday could only afford $7,000, she wrote out a check in that amount, with the payee line blank at Taylor’s direction. The very next day, Taylor called her from the bank where Taylor was attempting to cash the check. Bereday asked Taylor why thе check had to be cashed, and Taylor stated that her boss wanted to make sure Bereday’s money was good.
That morning, $7,000.00 was drawn on Bereday’s account. Bereday later became suspicious and asked the bank to see the
After learning that there was no such law firm as Legal Associate Services, Inc., LLC and that Taylor was not an attorney, Bere-day confronted Taylor and demanded her money back. Taylor returned to Bereday’s home with a Capitol One cheek for $7,000.00 with Taylor’s “law number” written on it. The cheek turned out to be a “bogus” check not connected to any checking account. Bereday never got her money back.
Other witnesses for the State testified consistently with Bereday’s testimony. Julie Tablit, a customer service manager at the Kapolei Branch of Central Pacific Bank (“CPB”), testified that Taylor took the lead in attempting to cash Bereday’s $7,000.00 cheek. Tablit testified that a male and a female (whom she later positively identified through photographic line-ups as Serna Lara and Taylor, respectively) presented a questionable cheek to one of the bank tellers. The teller called Tablit over because the check amount was over her cashing limit, and Tablit spoke with Taylor, who stated that the check was for “payment or service that was rendered to Ms. Bereday.” Tablit attempted to speak with Serna Lara, but Taylor informed her that he did not speak English. According to Tablit, Serna Lara did not do anything or say anything during the five minutes that Tablit and Taylor spoke. That day, Tablit also confirmed Serna Lara’s identity through his Hawai'i drivers license. Ser-na Lara also inked his thumbprint upon the check, per bank procedures. Tablit could not reach Bereday by phone, so she refused to cash the check and directed Taylor and Ser-na Lara to the Kahala Times Supermarket in-store branch of CPB, Bereday’s home branch, for further action.
Stephanie Hirayama, the manager of that branch, testified that a male and a female (whom she did not rule out in a later photographic lineup as Serna Lara and Taylor), came in to cash the $7,000.00 check. Even though Serna Lara was the payee, Taylоr did all the talking. Hirayama testified that Bereday, by phone, authorized her to cash the check, and that Taylor was the one who took the $7,000.00 cash off the counter.
Glenn Taniguchi, an accountant and attorney who had a longstanding professional relationship with Bereday, testified that he also discovered Taylor was not listed in the bar directory. When he confronted Taylor with that fact, Taylor told him she was listed under her maiden name, Pamela Mereh. Taniguchi confirmed that a “Pamela Mereh” was an inactive attorney. Unable to reach Mereh under the Maryland telephone number in the bar directory, Taniguchi abandoned his efforts to confirm Taylor’s credentials. Taniguchi later demanded that Taylor return the $7,000.00 in the form of a cashier’s cheek or cash to Bei’eday by a date certain, which Taylor agreed to do but did not do. Instead, Bereday received the bogus $7,000.00 check from Taylor.
Although the State provided no evidence concerning Roth, the State did provide evidence that there was no such business entity by the name of Legal Associate Services, Inc., LLC, and that Serna Lara was not an attorney.
Testimony regarding Serna Lara came from David Wong, the owner-operator of the former Mountain View Dairy in Wai'anae. He testified that Serna Lara had been a full-time cow-milker for about ten years at the time of the alleged theft. Wong testified that Serna Lara lived in the employee housing complex on-site. Wong stated that he had seen Taylor at Serna Lara’s home before. Wong testified that Serna Lara was not a licensed attorney, did not work for a law firm, did not run a law office out of his employee housing, and never mentioned anything about working at a law firm. Put plainly, Serna Lara was “[j]ust a milker.”
Taylor testified in her own defense. She testified that she graduated from the David A. Clarke School of Law in Washington, D.C. in 1998, moved to Hawai'i in 2000, but never took the Hawai'i bar exam. Taylor never disputed that she was not licensed to practice law in Hawai'i. Taylor denied telling Bere-day or Taniguchi she was an attorney.
Taylor testified generally that she took direction from Serna Lara and Roth. Taylor
Taylor testified that Serna Lara instructed her to visit Bereday’s home again to deliver a receipt for the check and other paperwork. After Bereday demanded a refund of the $7,000.00, Serna Lara became “infuriated,” wrote out a refund cheek, and directed Taylor to deliver the cheek to Bereday, which Taylor did.
Taylor testified that she believed Serna Lara and Roth were attorneys because she met them through a mutual attorney friend, Pamela Merch. She said she believed Roth was an attorney because he did not agree to meet with Taylor until Merch was on-island to make the formal introduction at Roth’s Queen Street office. She allegedly believed Serna Lara was an attorney because when she met him, he was “professional-looking” and “average articulate” in his use of English. Taylor testified that she filled out a job application, was hired by Roth and Serna Lara in 2006, did clerical work for both, and was paid by check per assignment.
She testified that she had visited Serna Lara at the dairy farm, and he explained that “he was an overseer of a set of the farmers,” a job he held in addition to his work as an attorney at the law firm. On cross-examination, the State pointed out photographic evidence that Serna Lara was not dressed professionally (i.e., he was dressed in a shirt and shorts) when he and Taylor attempted to cash the check on a regular business day in the middle of the day. Taylor testified that she did not find his manner of dress curious.
She testified that she did not know Roth and Serna Lara were not attorneys with a legitimate law firm. Taylor testified that she understood the process of becoming a licensed attorney but never confirmed whether Serna Lara or Roth were licensed to practice law in Hawaii.
The defense did not submit any jury instructions. All of the court’s jury instructions were given by agreement. There was no instruction on mistake of fact.
The jury found Taylor guilty of theft in the second degree but acquitted her of unauthorized practice of law. The trial court issued its Judgment of Conviction and Sentence, sentencing Taylor to five years of incarceration and restitution of $7,000.00 to Bereday. Taylor timely appealed.
B. The Appeal
For the first time on appeal, Taylor argued, “The trial court reversibly erred in sua sponte failing to instruct the jury on the mistake-of-faet defense as to Theft2-Deception.” Specifically, Taylor argued that she was operating under the mistaken belief that she
was acting on behalf of attorneys Serna Lara and Roth.... Since Taylor was mistaken as to the facts that Roth and Serna Lara (1) were not attorneys, (2) were not members of a 35-person law firm, and (3) were ineligible to practice law, she was entitled to a “mistake of fact” instruction. In other words, Taylor did not commit Theft2 by deception because she did not accept Bereday’s check, knowing that Roth and Serna Lara intended to take the money without rendering legal services to Bereday.
Taylor further cited to Stenger,
The State’s Answering Brief focused on Stenger. The State argued that Stenger was wrongly decided, for reasons set forth in the Stenger dissent, authored by Justice Nakaya-ma and joined by Chief Justice Moon. Those reasons were that requiring a sua sponte mistake of fact jury instruction (1) requires the trial court to advocate for the criminal defendant by identifying, and therefore highlighting, all possible defenses to the jury; (2) implicitly requires that the State (in order to stave off automatic retrial) request an instruction on potentially all defenses that are supported by any piece of weak evidence in the record; and (3) ineentivizes defense counsel not to request a mistake-of-fact instruction in order to “receive an automatic retrial” when the issue is raised on appeal. In conclusion, the State requested that the ICA affirm Taylor’s conviction.
The ICA held, “Based on [Stenger], we conclude that the Circuit Court erred in failing to instruct the jury on Taylor’s mistake-of-faсt defense and that such error was not harmless beyond a reasonable doubt.” State v. Taylor, No. 30161 (App. Feb. 29, 2010)(SDO) at 2. The ICA therefore vacated the trial court’s judgment of conviction and sentence and remanded the case for a new trial on the charge of second-degree theft by deception. See id.
The State now renews its request that this court overrule Stenger.
III. Discussion
A. The Mistake of Fact Defense
Taylor was charged with Theft in the Second Degree, by Deception, in violation of HRS § 708-830(2), which states, “A person commits theft if the person ... obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property,” and in violation of HRS § 708-831(l)(b), the value of the property or services having exceeded $300. “Deception” is further defined, in relevant part, in HRS § 708-800 (1993) as knowingly “[c]reat[ing] or eonfirm[ing] another’s impression which is false and which the defendant does not believe to be true,” “[f]ail[ing] to correct a false impression which the person previously has created or confirmed,” or “[p]romis[ing] performance which the person does not intend to perform or knows will not be performed....”
Mistake of fact can be a defense to Theft in the Second Degree. This defense is provided by statute:
Ignorance or mistake as a defense. In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if:
(1) The ignorance or mistake negatives the state of mind required to establish an element of the offense; or
(2) The law defining the offense or a law related thereto provides that the state of mind established by such ignorance or mistake constitutes a defense.
HRS § 702-218 (1993) (emphasis added).
B. State v. Stenger
Our most recent case expounding on mistake of fact instructional error is Stenger,
Stenger appealed her conviction to the ICA, arguing that the trial court erred by refusing to give the requested claim of right instruction and “fail[ed] sua sponte to give a mistake-of-fact instruetion[.]” Id. In other words, Stenger raised the lack of an explicit mistake of fact instruction for the first time
On certiorari, Stenger pressed the mistake of fact issue, arguing that the ICA gravely erred in concluding she was not entitled to the instruction. Id. Stenger acknowledged that she did not request an explicit mistake of fact instruction at trial, but she argued that the evidence adduced at trial supported the instruction, and that the trial court’s failure to give the instruction was not harmless beyond a reasonable doubt. Id. Stenger argued that she labored under the following mistake of fact: “if she believed she was complying with the reporting requirements by virtue of the items she did report to DHS, then she could not have ‘knowingly’ created or failed to correct a false impression.”
A plurality of this court agreed with Sten-ger. The plurality concluded that the trial court’s “failure to instruct on the defense of mistake of fact” was not harmless beyond a reasonable doubt because there was a “reasonable possibility that the jury, if provided with a separate mistake of fact instruction, could have found that [Stenger] believed she complied with the reporting requirements and, thus, did not knowingly deceive DHS.”
In reaching this conclusion, the Stenger plurality first favorably cited Locquiao,
With respect to defenses that negate penal liability, the defendant has the initial burden to adduce ‘credible evidence of facts constituting the defenses, unless those facts are supplied by the prosecution’s witnesses.’
The plurality noted that Locquiao held that “where a defendant has adduced evidence at trial supporting an instruction on the statutory defense of ignorance or mistake of fact, the trial court must, at the defendant’s request, separately instruct as to the defense, notwithstanding that the trial court has also instructed regarding the state of mind requisite to the charged offense.”
It was no accident that the plurality turned to Locquiao, a ease involving a mistake of fact instruction requested by the defendant at trial but denied by the trial court. Sten-ger argued that she “did request a claim of right instruction, which is a subspecies of mistake of fact, and, therefore, ... that request should be construed liberally to encompass a request for mistake of fact.”
The plurality explained that the claim of right defense is a “particular type of mistake of fact that would be logically encompassed under a general mistake of fact instruction.” Id. Specifically, a claim of right instruction would be appropriate where the defendant asserts “(1) some form of pre-existing ownership or possession of (2) specific property.”
As Judge Kim emphasized in his concurrence, “I would contend that ... the defense in the instant case did essentially request a jury instruction on the mistake of fact defense when it mistakenly requested one on claim of right.... In effect, the defense had the theory right, but the specific instruction wrong, and the trial court, while correctly recognizing the latter, mistakenly failed to recognize the former[.]”
The Stenger plurality could have expressly stated that a trial court has a duty to correct an erroneous request for a jury instruction where the theory of the defense clearly implicates another jury instruction. See State v. Faria,
Upon review, then, Stenger actually determined that (1) a trial court has a duty to properly instruct the jury on mistake of fact in the face of a requested but erroneous jury instruction on claim of right; and (2) the mistake of fact jury instruction was further required to be given because the defendant “requested” it and raised some evidence in support of the defense. Read this way, Sten-ger did not actually disrupt our instructional error precedent to the extent feared by the dissent in that ease. See
C. State v. Nichols
Thus, Stenger does not stand for the proposition that it has become cited for: that a trial court errs in failing to sua sponte give a jury instruction unrequested by the defendant at trial; Nichols, however, does.
On certiorari, Nichols argued, inter alia, that the trial court erred in not instructing the jury that they could compare the “relevant attributes” between him and the complaining witness (a police officer) to de
In reversing Nichols’ conviction, this court held
[Although as a general matter forfeited assignments of error are to be reviewed under the [Hawaii Rules of Penal Procedure (“HRPP”) ] Rule 52(b)[7 ] plain error standard of review, in the case of erroneous jury instructions, that standard of review is effectively merged with the HRPP Rule 52(a)[8 ] harmless error standard of review because it is the duty of the trial court to properly instruct the jury. As a result, once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt.
We reiterate that it is the trial court’s duty to properly instruct the jury. However, in the case of a jury instruction that is not requested at trial, the omission of which is later denominated as error for the first time on appeal, the Nichols’ “merger” holding should also be clarified.
Upon further examination of this case, it appears that the Nichols court, despite its “merger” holding, continued to engage in a two-step, plain-error-then-harmless error review in analyzing instructional error. Nichols observed that the defendant must first overcome the presumption that the instructions as given were correct.
The first step in the Nichols analysis was our determination that “the circuit court’s failure to give a ‘relevant attributes’ instruction was plain error [.] ”
The next step in the Nichols analysis was our determination that “there is a reasonable possibility that the error contributed to Nichols’ conviction, i.e., the error was not harmless beyond a reasonable doubt.”
Thus, in the case of a mistake of fact jury instruction that is not requested and not given at trial, the omission of which is denominated as error for the first time on appeal, we clarify that the plain error standard continues to apply. Plain error exists “[i]f the substantial rights of the defendant have been affected adversely[.]” State v. Kikuta,
In the case of a jury instruction on mistake of fact that is not requested by the defense and not given by the trial court, plain error affecting substantial rights exists if the defendant had met his or her initial burden at trial of adducing credible
We draw our holding from HRS § 701-115(2) and its Commentary. HRS § 701-115 (1993) provides:
Defenses. (1) A defense is a fact or set of facts which negatives penal liability.
(2) No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented. If such evidence is presented, then:
(a) If the defense is not an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant’s guilt; or
(b) If the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability.
(3) A defense is an affirmative defense if:
*206 (a) It is specifically so designated by the Code or another statute; or
(b) If the Code or another statute plainly requires the defendant to prove the defense by a preponderance of the evidence.
The Commentary to HRS § 701-115 provides, in full:
The Code establishes two classes of defenses. As to both, it places an initial burden on the defendant to come forward with some credible evidence of facts consti-' tuting the defense, unless, of course, those facts are supplied by the prosecution’s witnesses.
As to the burden of persuasion, two different rules are codified. In the case of defenses which are not affirmative, the defendant need only raise a reasonable doubt as to the defendant’s guilt. The other side of the coin is that the prosecution must prove beyond a reasonable doubt facts negativing the defense. The prosecution in fact does this when the jury believes its case and disbelieves the defense.
In the case of affirmative defenses, the burden on the defendant increases. Now the defendant must prove by a preponderance of the evidence facts which negative the defendant’s penal liability. Subsection (4) defines “affirmative defense,” making it clear that this type of defense needs special legislative prescription. Unless the Legislature has made a particular defense affirmative, the defendant’s burden is only to raise a reasonable doubt.11
Contrary to the Dissent’s assertion, Maelega,
The primary issue in Maelega, however, was not the meaning of the Commentary but whether the circuit court’s modified instruction on the defendant’s requested EMED defense, which included language drawn from the Commentary, impermissibly shifted the burden of proof onto the defendant. Maelega,
The defense of extreme mental or emotional disturbance places the initial burden on the defendant to come forward with some credible evidence of fact constituting a defense unless those facts are supplied by the prosecution’s witnesses. If this occurs, the prosecution must then prove beyond a reasonable doubt that the defendant was not at the time of the offense under the influence of extreme mental or emotion [sic] disturbance for which there is a reasonable explanation.
We held that this instruction “impliedly instructed the jury that the burden under
We stated that it was not the jury’s job to “eonelude[ ] that Maelega’s purported defense was not credible,” because “it is not the province of the jury to second guess the judge’s decision to instruct on EMED manslaughter. ...”
Synthesizing and applying HRS § 701-115, its Commentary, and Maelega in the context of this case, we hold that, in the case of an unrequested mistake of fact jury instruction denominated as error for the first time on appeal, HRS § 701-115(2) and its accompanying Commentary place the burden of production on the defendant to present evidence of the specified fact or facts going to the defense. In other words, the defendant must have come forward at trial with credible evidence of facts constituting the defense, unless those facts were supplied by the prosecution’s witnesses. Further, “credible evidence” in this context means that the circuit court should have concluded, based on the record that existed at trial, that the evidence “offered reasonable grounds for being believed,” i.e., thаt “a reasonable juror could harbor a reasonable doubt” as to the defendant’s guilt, and should have given the unrequested mistake of fact jury instruction. Failure to give the mistake of fact jury instruction under these circumstances constitutes plain error.
This is so, because a defense like mistake of fact is capable of “negativing] the state of mind required to establish an element of the offense,” thus capable of avoiding conviction. HRS § 702-218 (1993); see also HRS § 701-114(l)(b) (1993) (“[N]o person may be convicted of an offense unless the following are proved beyond a reasonable doubt: ... The state of mind required to establish each element of the offense[.]”).
This court may notice as plain error the omission of a mistake of fact jury instruction if it appears that the defendant has come forward with credible
D. Taylor’s Appeal
Turning to Taylor’s appeal, the absence of a jury instruction on mistake of fact was not plain error, because Taylor had not met her initial burden of adducing credible
We therefore reversе the ICA’s March 27, 2012 Judgment on Appeal, entered pursuant to its February 29, 2012 Summary Disposition Order, which vacated the October 7,
2009 Judgment and Conviction of the Circuit Court of the First Circuit and remanded this case for a new trial. Taylor’s Judgment of Conviction and Sentence is affirmed.
Notes
. The Honorable Dexter D. Del Rosario presided.
. At the time of the alleged offense, as it does now, HRS § 708-830(2) provided that "[a] person commits theft if the person ... obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property.”
. At the time of the alleged offense, as it does now, HRS § 708-831(l)(b) provided that "[a] person commits the offense of theft in the second degree if the person commits theft ... [o]f property or services the value of which exceeds $300[.]”
. At the time of the alleged offense, as it does now, HRS § 605-14 provided:
Unauthorized practice of law prohibited. It shall be unlawful for any person, firm, association, or corporation to engage in or attempt to engage in or to offer to engage in the practice of law, or to do or attempt to do or offer to do any act constituting the practice of law, except and to the extent that the person, firm, or association is licensed or authorized so to do by an appropriate court, agency, or office or by a statute of the State or of the United States. Nothing in sections 605-14 to 605-17 contained shall be construed to prohibit the preparation or use by any party to a transaction of any legal or business form or document used in the transaction.
. At the time of the alleged offense, as it does now, HRS § 605-17 provided that a violation of HRS § 605-14 is a misdemeanor. Taylor was acquitted on the Unauthorized Practice of Law count.
. Serna Lara was named as a co-defendant in the information and complaint but could not be located for trial.
. Under HRPP Rule 52(b) (1977), "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
. Under HRPP Rule 52(a) (1977), "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
. Upon further review, however, State v. Haanio,
There is a clear difference between requiring sua sponte jury instructions on lesser included offenses versus defenses, in terms of the burden upon the trial court, and in terms of the effect upon trial strategy. See, e.g., State v. Auld,
. By “credible” evidence we mean evidence "offering reasonable grounds for being believed.” Webster's Ninth New Collegiate Dictionary 305 (1988). The Dissent defines "credible” to mean "not incredible, that is, not ‘too extraordinary and improbable to be believed[.]’ ” Dissent at n.l 1 (citing Merriam Webster’s Collegiate Dictionary 590 (10th ed. 1993)). Respectfully, we have already opined that evidence that is "not credible,” as Taylor’s was, could merely be "plausible (and, therefore, not incredible),” just "not entirely believable.” State v. Maelega,
We are aware that "credibility” is usually associated with subjective believability. See, e.g., State v. West,
. The dissent states that the majority "preemptively shifts the burden of persuasion to the defendant at a point in the litigation where the defendant is only rеquired to satisfy the burden of production.” Dissent at V.B. However, the commentary actually states that the defendant must "come forward with some credible evidence of facts constituting the defense,” and the phrase "come forward” clearly elaborates upon the statute’s requirement that the defendant "presentU” "evidence of the specified fact or facts” before the trier of fact considers a defense. In other words, "credible evidence” in the Commentary refers to the defendant’s burden of production, not persuasion. In fact, the next paragraph in the Commentary states the "burden of persuasion” is identified as belonging to the State or to the defendant, depending upon whether the defense is an affirmative or non-affirmative defense. Thus, the Commentary still provides helpful guidance as to the defendant’s burden of coming forward with credible evidence to constitute a defense. Contrary to the Dissent’s assertion, this interpretation of the Commentary to HRS § 701-115 is still viable. Dissent at VI.A. As recently as Locquiao and Stenger, we continued to favorably cite to the Commentary to HRS § 701-115. See Locquiao,
. In this regard, we disagree with the Dissent that weak, inconclusive, or unsatisfactory evidence going to a particular defense is always "apparent” to the trial court in a bench or jury trial. Dissent, Section V.A. It is more likely the case that weak, inconclusive, or unsatisfactory evidence would become "apparently" relevant to a particular defense when the defendant requests the defense and the trial court’s attention is drawn to such evidence in the record. Absent such a request, due to its nature, weak, inconclusive, or unsatisfactory evidence relevant to an unstated defense may not necessarily take on any apparent significance during trial.
. See supra note 10.
. See supra note 10.
. See supra note 10.
Concurrence Opinion
Concurring and Dissenting Opinion by
I would hold, first, that if weak, inconclusive, or unsatisfactory evidence going to a particular defense is adduced (such evidence by definition being apparent from the record), the court must instruct the jury on that defense, even if the defendant does not request such an instruction, in order that the jury may arrive at an informed and just verdict.
I.
This court has not previously been presented with the exact circumstances of the instant case, namely where a jury instruction as to a defense is unrequested at trial. However, based on State v. Stenger,
A.
Preliminarily, the principles underlying the holding in Stenger must be reviewed. The majority notes that there has been “apparent confusion” regarding the actual holding of Stenger. Majority’s opinion at 197,
Plainly, it is the duty of the ICA to follow precedent.
This was an incorrect application of Sten-ger for at least three reasons. First, the ICA did not recognize that the issue before it in Yue, Mabson, and Metcalfe, namely whether the court had a duty to instruct the jury on defenses that were entirely unrequested by the defendant, but for which evidence was adduced at trial, was not directly determined by the holding in Stenger, as discussed below. Second, the ICA misread Judge Kim’s concurring opinion to reach a result different from that of the majority in Stenger, despite Judge Kim’s statement that he joined with two other justices in the opinion of the court: “I concur with the majority in both the holdings and the analysis supporting them on all issues in this case.” Stenger,
B.
It has long been held that it is the judge’s duty to ensure that all jury instructions cogently explain the law applicable to the facts in the case before it. This court has repeatedly stated that “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 [the jurors] may have a clear and correct understanding of what it is [the jurors] are to decide, and he [or she] shall state to them fully the law applicable to the facts.” State v. Feliciano,
C.
State v. Haanio,
Haanio declared that there was “no constitutional or substantial right of a defendant not to have the jury instructed on lesser included offenses.” Id. at 414-15,
D.
Subsequently, in State v. Locquiao, this court reaffirmed that it was the court’s duty to properly instruct the jury on applicable defenses
This court has consistently held that a defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration*211 of that issue by the .jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be. Moreover, it is the trial judge’s duty to insure that the jury instructions cogently explain the law applicable to the facts of the case and that the jury has proper guidance in its consideration of the issues before it.
Thus, Locquiao stands for the proposition that when requested by a defendant, a court must give instructions as to any defenses having “any support in the evidence ... no matter how weak, inconclusive, or unsatisfactory that evidence may be.” Id. at 206,
E.
Following Locquiao, in Nichols, this court was faced with the issue of whether the court should have given a “relevant attributes” instruction that went to one of the elements of the offense of terroristic threatening, even though defense counsel failed to request the instruction. Nichols,
Thus, Nichols stands for the proposition that the court has a duty to give jury instructions on all considerations relevant to the elements of a particular offense, even if the defendant does not request an instruction at trial.
F.
In Stenger, the question was whether the defendant was entitled to an instruction on the mistake of fact defense, although defense counsel did not request one at trial, but did request an instruction on the claim of right defense.
Defense counsel orally requested that the jury be instructed on claim of right pursuant to HRS § 708-834 (Supp.1997),
On certiorari, this court concluded that the ICA had erred in determining that the defendant was entitled to an instruction on the claim of right defense, but that she was entitled to a mistake of fact instruction, which would encompass the defense of a claim of right.
With respect to whether the defendant had been entitled to a mistake of fact instruction despite requesting a claim of right instruction at trial, Stenger held that, “we must determine (1) whether [the defendant] presented any evidence, ‘no matter how weak,’ that would have supported the jury’s consideration of a mistake of fact defense and, if so, (2) whether the court’s failure to instruct on mistake of fact was harmless beyond a reasonable doubt.” Id. at 281,
II.
Whether or not the defendant requests a defense instruction should make no difference in whether the court must instruct the jury on a defense. All of the State’s arguments in its Application, and the majority’s rule with respect to credible evidence, as discussed infra, suggest that such a distinction should be made.
Under the majority’s holding, if a defendant fails to request a jury instruction on a particular defense, the defendant and/or the prosecution must have adduced “credible evidеnce”
But where there is evidence abrogating or mitigating penal liability the court should not be relieved of the duty to give an instruction as to an applicable defense where the defendant has not requested an instruction, but on the other hand, be required to give an instruction, pursuant to Locquiao, only where it has been requested. With respect to criminal liability, both defendants should have the benefit of an appropriate instruction. Yet, in the State’s and the majority’s view, the defendants should be treated differently. That approach is antithetical to basic notions of fairness, and our solemn obligation to obtain just results and guard against erroneous outcomes. See Haanio,
Indeed, the principle underlying Stenger and Locquiao is that it would be wrong to uphold a defendant’s conviction when no instruction was given to the jury on an apparent defense that existed in the evidence, and there is a reasonable possibility that the failure to instruct the jury on that defense contributed to the conviction. See Locquiao,
III.
Furthermore, a view that would sanction the disavowal of jury instructions for strategic purposes is at odds with our precedent. This is the State’s argument, echoed by the majority, that a distinction should be made between requested and unrequested defense instructions. However, respectfully, the argument that, for example, a defendant may not request a self-defense instruction because of concerns that it would hurt his credibility or distract the jury’s attention from his best defense, see Auld,
What proponents of this “strategic purpose” approach fail to realize is that jury instructions are by their nature outside the scope of the “adversary system.” It is each party’s role to develop for the jury its view of the facts, but the court's role is to instruct the jury on the law notwithstanding the parties’ arguments to the jury or their view of the evidence. Id. As such, the court must instruct the jury on all defenses inhering in the evidence, in order to ensure that the jury is fully aware of the law applicable in the ease. Thus, the majority in Auld properly held that “regardless of the defendant’s theory of defense, the defendant and/or the defense counsel cannot stop the court from giving to the jury a self-defense instruction that is permitted by the evidence.” Auld,
By distinguishing jury instructions with respect to defenses because of the defendant’s right to develop his or her tidal strategy, the majority would, in effect, allow the parties to delineate what the law is. Instead, trial strategy must take second place to the public interest in an intelligent and informed result, whether a case is decided by a judge or jury. The fact finder’s role is to search for truth within the framework of the law, and it is in the best interest of society that we not allow parties to manipulate that process or withhold from the jury knowledge that a judge in a judge-only trial would have, inasmuch as the jury in a jury trial and the judge in a judge trial occupy the same role of ultimate decision-maker.
IV.
A.
“[Cjredibility” is a matter solely for the fact finder to decide, and by imposing a credibility determination onto the jury instruction process, the majority effectively
If there was any evidence, it was my duty [as judge] to leave it to the jury, who alone could judge of its weight. The rule that governs a judge as to evidence applies equally to the case offered on the part of the defendant, and that in support of the prosecution. It will hardly be contended, that if there was evidence offered on the part of the defendant, a judge would have a right to take on himself to decide on the effect of the evidence, and to withdraw it from the jury. Were the judge so to act, he might, with great justice, be charged with usurping the privileges of the jury, and making a criminal trial, not what it is by our law, a trial by jury, but a trial by the judge.
Id. at 208 (citing Best, J., The King v. Burdett, (1820) 3 Barn. & Ald. 717; 4 Barn. & Ald. 95) (emphases added). Alcantara has been cited by this court numerous times for the proposition that “[t]he court should not invade the jury’s province of making factual determinations.” Riveira,
The Alcantara standard ensures that judges will not usurp the jury’s role by precluding it from considering legal theories that exist in the evidence even if the judge believes evidence supporting the theory is weak, inconclusive, or unsatisfactory. This is because the jury, of course, may view the significance of certain evidence differently from the judge. See Stenger,
Under Alcantara and subsequent cases, it is the jury’s prerogative to decide the weight and effect of the evidence. This captures the essence of their separate roles: the weight and effect of the evidence is for the jury to decide, i.e., whether it is weak or not, while the legal options in the evidence must be identified by the judge in order that the jury may assess the relevance and significance of the evidence presented. See Quitog,
The jury can only perform its task if it is fully informed of the law — including defenses the judge may find unworthy of consideration if it were the judge’s decision to make. The existing standard recognizes the jury’s paramount role in weighing the effect of the evidence. See Riveira,
This proposition was reiterated in State v. Kikuta,
B.
On the othеr hand, the majority’s test undermines the jury’s function, inasmuch as the court must weigh the evidence first, i.e., predict whether based on the evidence a reasonable jury might consider acquittal, before allowing the jury to consider evidence upon which a theory of defense is based. This is in direct conflict with the principle that the judge not “take on himself [or herself] to decide on the effect of the evidence” and thus
The Alcantara standard is substantiated by the law since it imposes a duty on the court to advise the jury of the defenses adduced in the evidence that would not otherwise be known to lay persons. The majority’s test, on the other hand, requires the judge to weigh the evidence before the jury may consider it via the instructions, thus withdrawing the jury’s prerogative, and depriving the parties of “a trial by jury” and substituting “a trial by the judges.” Id. The “no matter how weak, inconclusive, or unsatisfactory” standard thus safeguards the jury’s function of deciding what evidence is significant in arriving at the outcome of the trial, confines the court’s role to informing the jury of the possible defenses raised in the evidence, and leaves the evaluation of whether the evidence supports any defenses to the jury.
V.
Several problems are engendered by the “credible evidence” standard.
A.
In a bench trial, the judge, by training and experience, should know of and thus be informed of all the available defenses, no matter how weak the evidence is, that supports such defenses. Therefore, in a judge trial, the judge would be aware of the full panoply of defenses adduced in the evidence.
However, the jury, as the trier of fact, should be informed of all legal theories that are supported by the facts in the evidence. If the court is aware that there is a basis in the evidence for a defense instruction, the court should not keep those instructions from the jury. The effect of holding otherwise is that the jury in a jury trial will be kept ignorant of defenses that are apparent to the judge from the evidence. This will directly impact the integrity of the trial and resulting verdicts and ultimately demean the role of the juror.
Defendants who exercise their right to jury trials then, would not be afforded the same treatment as a defendant in a bench trial, because the jury would be less informed as to applicable defenses.
B.
In evaluating whether a juror would harbor a reasonable doubt, the judge’s view of what outcome could be “harbored” by a reasonable juror will necessarily control. The judge will thus withhold from the jury legal defenses that exist in the evidence unless they are consonant with his or her view of the evidence. The court’s instructions ultimately, then, will reflect the court’s evaluation of the evidence in arriving at what a reasonable juror would believe and thus, what the jury will be allowed to consider. In thus preempting the jury’s evaluation of the evidence, the court will have shaped the contours of the case that will be deliberated on by the jury. In this way, the court will influence the jury’s verdict by giving only instructions that conform to the court’s view of the weight of the evidence, i.e., whether based on the evidence, a reasonable juror would harbor a belief of reasonable doubt as opposed to whether “any evidence” supports a defense instruction.
The court must remain impartial and cannot suggest to the jury the outcome that it should reach. State v. Silva,
Such a determination would have a further adverse impact. By requiring the judge to evaluate the evidence as a condition to giving defense instructions, the majority’s test contravenes a defendant’s constitutional right to the presumption of innocence. See State v. Samonte,
C.
The majority’s “credible evidence” standard also raises additional due process concerns, by impermissibly altering the structure of a jury trial, in violation of the fair
VI.
Respectfully, the majority’s basis for its credible evidence standard is erroneous.
A.
The majority mistakenly draws the “credible evidence” standard from HRS § 701-115(2)
Moreover, the conflict concerning the use of the term “credible” in the Commentary to HRS § 701-115 and HRS § 701-115(2) was resolved in Maelega,
The defense of extreme mental or emotional disturbance places the initial burden on the defendant to come forward with some credible evidence of facts constituting a defense unless those facts are supplied by the рrosecution’s witnesses. If this occurs, the prosecution must then prove beyond a reasonable doubt that the defendant was not at the time of the offense under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation.
Id. at 176,
Maelega held in reference to the term “credible,” that “the court [had] impliedly instructed the jury that the burden under HRS § 701-115(2) was a question of fact for the jury to decide.” Id. “In other words,” Maelega observed, “the jury may have reasonably, but impermissibly interpreted the court’s [EMED] instruction as requiring Ma-elega to convince it that the evidence tending to support his claim was credible ... before considering whether the prosecution had disproved this defense beyond a reasonable doubt.” Id. at 178,
Hence, contrary to the majority’s interpretation of Maelega, majority’s opinion at 206-07,
The Nobriga court clearly relied upon the commentary to HRS § 701-115 when it stated that a defendant bears the initial burden of “com[ing] forward with some credible evidence of facts supporting the defense[.]”10 Haw.App. at 359 ,873 P.2d at 113 (emphasis added). Although “[t]he commentary ... may be used as an aid in understanding the provisions of [the Hawaii Penal] Code, ... [it may] not [be used] as evidence of legislative intent.” HRS § 701-105[]. Our cases have firmly established that “a defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the*221 .jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be.” Pinero,75 Haw. at 304 ,859 P.2d at 1379 (emphases added) (internal quotation marks and citations omitted). See also [] Lira, 70 Haw. [at] 27, 759 P.2d [at] 871[ ]; [ ]O’Daniel, 62 Haw. [at] 527-28, 616 P.2d [at] 1390[ ].
Id. (emphases added). Further, this court expressly rejected the condition espoused by the majority in the instant case, that an instruction must be supported by credible evidence before it is given:
Accordingly, we read Nobriga to state the obvious: If there is no evidence in the record to support a separate and distinct defense, then the defendant is not entitled to an instruction on that defense. To the extent that Nobriga’s reference to credible evidence is inconsistent with Pinero II, supra, it is hereby overruled.
Id. (emphasis added).
Consequently, as evidenced in the quoted passage above, Maelega rejected the majority’s use of the term “credible” from the Commentary to HRS § 701-115, as in conflict with this court’s settled case law on giving defense instructions. Id.
B.
Maelega states that “[b]y giving the EMED instruction to the jury, the circuit court implicitly acknowledged that, based on the record, a reasonable juror could harbor a reasonable doubt as to whether Maelega acted while under extreme emotional disturbance. ...” Id. at 177,
Instead, Maelega simply applied HRS § 701-115(2)(a), which provides that, with respect to non-affirmative defenses (i.e., EMED), “the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant’s guilt[.]” Id. Maelega’s statement that the court, by giving an instruction, “implicitly acknowledged that, based on the record, a reasonable juror could harbor a reasonable doubt ....” is made in dicta, and the case cited after that sentence does not use the language “reasonable juror could harbor a reasonable doubt,” but instead, supports the view that “evidence” must be adduced before an instruction on a defense can be considered. See id. (citing State v. Russo,
C.
The majority focuses on the fact that Loc-quiao and Stenger both cited to the Commentary to HRS § 701-115. See majority’s opinion at 206 n.11,
In Locquiao, as noted, defense counsel had requested an ignorance-or-mistake-of-fact defense, and the court refused the instruction.
Locquiao concluded that the defendant was entitled to an instruction on the mistake of fact defense and the prosecution bore the burden of disproving the defense. No mention whatsoever was made of whether the evidence adduced by the defendant, “that he was unaware that the ‘glass material’ recovered [ ] was an ‘ice pipe’ and that the ‘glass material’ contained methamphetamine[,]” was, in fact, credible. Id. Although this court in Locquiao briefly quoted the Commentary to HRS § 701-115, the purpose was only to explain how the burden shifted with respect to defenses, and the “credible evidence” requirement was not actually applied by this court. See id.
In Stenger, the State had argued that “the [court] did not commit plain error in failing to give the jury an instruction on the defense of mistake-of-fact where there was no credible evidence to warrant such an instruction.” 122 Hawai‘i at 277,
Respectfully, it is therefore incorrect to say that “[a]s recently as Locquiao and Sten-ger, [this court] continued to favorably cite to the Commentary to HRS § 701-115.” Majority’s opinion at 206 n. 11,
D.
In sum, nothing in HRS § 701-115, its Commentary, Stenger, Locquiao, or in any other Hawaii case supports the heightened burden imposed by the majority for defendants who fail to request a jury instruction to which they are otherwise entitled.
VII.
Unlike the majority, I would uphold Nichols, requiring that if the court erred in failing to properly instruct the jury, and the defendant did not object at trial, this court need not first undertake a plain error review, but will consider whether the error was harmless beyond a reasonable doubt.
A.
Generally, if a party fails to make a timely objection at trial, this court will note error “where plain error has been committed and substantial rights have been affected thereby.” State v. Miller,
Regardless of whether defense counsel requested a specific jury instruction at trial, however, as discussed, this court has held the duty to properly instruct the jury lies with the trial court. Since the ultimate responsibility for the jury instructions lies with the court, an error in such instructions does not represent the type of error that, if not objected to at trial, requires a plain error determination. At trial, it is each party’s role to provide to the jury its view of the facts, the court’s role to instruct the jury on the law, and the jury’s role to render true verdicts based on the facts presented. See Haanio,
B.
The incongruity between plain error review and the court’s duty with respect to jury instructions was first recognized by the ICA in State v. Astronomo,
In Nichols, this court explicitly affirmed Astrónomo, and held that “ “with respect to jury instructions, the distinction between harmless error and plain error is a distinction without a difference.’”
Nichols agreed with the defendant that “in light of our consistent precedent regarding the duty of the trial court to instruct the jury, the ICA gravely erred in concluding that the duty of the trial court is limited to avoiding plain error.” Id. at 335,
Consequently, we hold that, although as a general matter forfeited assignments of error are to be reviewed under the HRPP Rule 52(b) plain error standard of review, in the case of erroneous jury instructions, that standard of review is effectively merged with the HRPP Rule 52(a) harmless error standard of review because it is the duty of the trial court to properly instruct the jury. As a result, once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the eiToneous jury instruction was not harmless beyond a reasonable doubt.
Id. at 337,
C.
With respect to the application of the standard of review in Nichols, the majority notes that “despite its ‘merger’ holding, [the Nichols court] continued to engage in a two-step, plain-error-then-harmless error review in analyzing instructional error.” Majority’s opinion at 204,
Thus, Nichols first concluded that the failure to give a relevant attributes instruction was an error. The majority characterizes this as a “plain error” determination, seemingly based solely on the fact that the Nichols opinion states, prior to its analysis, that the “failure to give a ‘relevant attributes’ instruction was plain error.” Majority’s opinion at 204,
Because this court made a determination that an error took place does not imply that this court engaged in “plain error” review. Rather, it indicates that this court was determining whether, as the defendant posited, the court had in fact made an error.
D.
Respectfully, the majority improperly describes plain error review in its application to the facts of this case. The majority states that “[i]n the case of a jury instruction on mistake of fact that is not requested by the defense and not given by the trial court, plain error affecting substantial rights exists if the defendant had met his or her initial burden at trial of adducing credible[] evidence of facts constituting the defense (or those facts are supplied by the prosecution’s witnesses).” Majority’s opinion at 205,
In the interests of upholding this court’s precedent in Nichols, recognizing the duty of the court to properly instruct the jury, and clarifying the standard for future cases, I would reaffirm that, once an appellate court determines that the court erred in failing to give a defense instruction, that court need not consider whether the error satisfies the “plain error” standard described above, but can proceed directly to an analysis of whether the error was harmless beyond a reasonable doubt. Thus, in accord with Nichols, where the court erred in failing to give proper jury instructions, plain error and harmless error review are merged.
In its Application to this court, the State argues that Stenger should be overturned. The State’s arguments are discussed in Appendix A, attached hereto, inasmuch as not all of the State’s arguments are germane to the majority’s holding.
IX.
Our trial courts are capable of adhering to the standard of administering the law that has been established with respect to unrequested instructions. On the other hand, in our role as the reviewing court, we have the ultimate responsibility for ensuring that cases are properly tried on the applicable law. Respectfully, the diminishment of the trial court’s obligation and of our oversight under the majority’s rule will ultimately be reflected in a lower standard of justice in our state. For the foregoing reasons, I respectfully concur in part and dissent in part.
APPENDIX A TO CONCURRING AND DISSENTING OPINION BY ACOBA, J.
I.
A.
First, the State takes issue with the law that courts have a duty to instruct on a defense founded in the evidence, no matter how weak, even if such an instruction was not requested. It argues that such a holding places a duty on the court to identify every defense supported by some evidence, no matter how attenuated. This argument rests on a basic misapprehension of the court’s role. Obviously, the court must assess the evidence in order to determine what instructions to give. But to impose that duty on the court is not improper. The rule that the court is responsible for properly instructing the jury precedes State v. Stenger,
Further, as discussed before, the fact that the defendant did not ask for the instruction should make no difference. By limiting the court’s duty to instruct only on those defenses requested by the defendant, even when the evidence supports other defenses, the State’s position increases the risk of improper convictions.
B.
Second, the State argues that it is not the responsibility of the court to implement defense strategy, and the prosecution should not be penalized where defense counsel fails to request a defense instruction. The State proffers that the prosecution must identify and submit instructions omitted by the court or else risk the result of “virtually automatic retrial.” The State’s concern in this instance is insupportable, inasmuch as it misidentifies the duty of the court as the lawgiver, independent of the parties’ trial strategy. Haanio,
Third, the State argues that unrequested defense instructions would interfere with a defendant’s right to determine his or her own defense. The State cites to the concurring and dissenting opinion in State v. Auld,
The search for the truth, and a “trial court’s ultimate obligation to promote justice in criminal cases[,]” Haanio,
Respectfully, by permitting the defendant or prosecution to limit the applicable law the jury can consider, despite the evidence adduced, the State and the majority enhance the risk that the jury would not reach the result that best accords with justice in a particular case, or would not arrive at an outcome that best serves the public interest in a jury that is fully and accurately informed. This would subject our system of justice to the vicissitudes of advocates or to credibility predeterminations by a court.
Furthermore, nothing precludes defense counsel from submitting proposed defense instructions. The situation addressed in the instant case only arises where defense counsel has not requested a jury instruction as to a particular defense. On this point, Haanio stated, “[o]f course, the prosecution and the defense may, as they do in the ordinary course, propose particular included offense instructions, and our holding is not to be taken as discouraging or precluding their desire or felt obligation to do so.”
Chief Justice Moon’s dissent to Stenger adopts a theory from the Supreme Court of California, stating that, “ ‘a trial court’s duty to instruct, sua sponte, or on its own initia
Chief Justice Moon’s standard is obviously inconsistent with our own precedent, however. First, it is not necessary that the defense “rely” on a defense for the court to issue an instruction on other defense theories evident in the evidence This is the lesson of Haanio,
Finally, this court has never imposed a “substantial evidence” standard to support the giving of an unrequested instruction on a defense adduced in the evidence. “Substantial evidence” is defined by Black’s Law Dictionary, in relevant part, as “[ejvidence that a reasonable mind could accept as adequate to support a conclusion; evidence beyond a scintilla.” Black’s Law Dictionary 640. As discussed, requiring that the defendant have adduced more than “some evidence, no matter how weak,” State v. Kikuta,
D.
Fourth, the State argues that requiring the court to provide jury instructions on all applicable defenses would somehow allow a defendant “two bites at the same acquittal apple.” Related to its second argument, the State’s position appears to be that the defendant will be encouraged not to object to the omission of a defense instruction. Again, this assumes that the court has abrogated its duty to correctly instruct the jury as to applicable defenses that inhere in the evidence. Also, for the reasons discussed before, it is neither the role of the defendant nor the prosecution to correctly charge the jury; it is the court’s role, and any appeal based on the court’s failure to properly instruct the jury is subject to harmless error review.
The State’s reasoning was effectively rejected by the United States Supreme Court in Henderson v. United States, — U.S. -,
The Court went on to reason that, “[i]f there is a lawyer who would deliberately forgo objection now because he perceives some slightly expanded chance to argue for ‘plain error’ later, we suspect that, like the unicorn, he finds his home in the imagination, not in the courtroom.” Id. at 1129 (first emphases in original, second emphasis added). Similarly, it would be an “imagin[ed]” defense counsel, i.e., a “unicorn,” who would deliberately forgo an objection to an instruction that could assist his or her client, because he or she would perceive some theoretical chance for retrial reliant on an appellate court’s determination that the court’s failure to properly instruct the jury was not harmless beyond a reаsonable doubt.
E.
Finally, the State argues that applying the “some evidence, no matter how weak” holding, see Kikuta,
Also, the State again presumes, without justification, that there would be “nearly automatic retrial,” ignoring the fact that all such appeals are subject to harmless error review. Under harmless error review, if the court did not notice the defense for purposes of instructing the jury at trial, and there is only weak evidence in the record as to that defense, the error may be harmless. The “some evidence, no matter how weak” standard is designed to provide the jury with information that it as a lay body would not readily ascertain, but that would be apparent to a judge. In the interest of justice, if a defense is applicable and its omission is not harmless beyond a reasonable doubt, then indeed the ease should be retried to correct the error and to ensure that the jury was properly instructed on all applicable law.
F.
Accordingly, it is noted that the State’s arguments in its Application contravene this court’s long-standing precedent with respect to jury instructions, and that the practical difficulties that would allegedly result from adopting the “no matter how weak” standard for unrequested jury instructions are overstated.
. The majority concludes that there was evidence presented by Respondent/Defendant-Appellant Pamela L. Taylor (Taylor) at trial supporting a mistake of fact defense, but that such evidence was "not credible” and therefore omission of the mistake of fact jury instruction at trial was not plain error. Majority’s opinion at 207-08,
I concur that Taylor adduced evidence in this case regarding the mistake of fact defense, however weak, but that the failure by the Circuit Court of the First Circuit to provide a mistake of fact defense instruction under the circumstances was harmless beyond a reasonable doubt.
. According to the majority’s rule, an appellate court will determine (1) whether evidence of facts constituting the defense was adduced, see majority's opinion at 207,
The majority’s holding conveys to trial courts that in all cases where defense instructions are unrequested by the defendant, that before giving such an instruction the trial court must determine (1) that evidence of the particular defense has been adduced; (2) that such evidence is "credible"; and (3) that "a reasonable juror could harbor a reasonable doubt” as to the de
. In State v. Hinton,
. The term "liability" is defined as ‘‘[t]he quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment." Black's Law Dictionary 977 (9th ed. 2009).
. Pursuant to the Hawaii Penal Code, "[t]he 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 [].” Hawaii Revised Statutes (HRS) § 702-205 (1993). The Hawaii Penal Code further states that "[a] defense is a fact or set of facts which negatives penal liability.” HRS § 701-115 (1993). As such, if a defendant has a defense to an offense, then the defendant has no penal liability with respect to that offense.
. HRS § 707-716( 1 )(c) provides:
A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening ... [algainst a public servant[.j
. The majority notes that Haanio did not necessarily compel the holding in Nichols, because "[t]here is a clear difference between requiring sua sponte jury instructions on lesser included offenses versus defenses, in terms of the burden upon the trial court, and in terms of the effect upon trial strategy.” Majority’s opinion at 204, n. 9,
. HRS § 708-834 provides, in relevant part: (1) It is a defense to a prosecution for theft that the defendant:
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(b) Believed that the defendant was entitled to the property or services under a claim of right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.
. Contrary to the majority's continuing reference to Stenger, and the ICA’s interpretation of the case, discussed supra, as a plurality opinion, it is in fact a majority opinion. To reiterate. Judge Kim agreed with the majority and signed onto the majority opinion, stating that "I concur with the majority in both the holdings and the analysis supporting them on all issues in this case.” Stenger,
. It must be noted that, contrary to the State’s contention, the majority opinion in Stenger does not say that the courts have a duty to sua sponte instruct on "nearly every conceivable defense.”
. The majority’s opinion defines "credible evidence” as “evidence ‘offering reasonable grounds for being believed.’ ’’ Majority’s opinion at 205, n. 10,
The majority defines credible as "plausible,” majority’s opinion at 205 n. 10,
. Since Haanio was deсided, it has become apparent that the fact that a jury finds a defendant guilty of the charged offense does not mean that the failure to give instructions on lesser included offenses is harmless. The practical effect of the failure to give lesser included offense instructions leaves the jury with the same “all or nothing” choice that ignores the public interest in reaching a result that best conforms to the facts. The absence of lesser-included offense instructions is not harmless because like an "all or nothing” “gamesmanship” approach, see Haanio,
. In the context of determining whether there is substantial evidence to support a conviction, a reviewing court will consider whether particular evidence is "credible,” however, in this context, priority is given to the fact finder’s credibility determination. For example, in reviewing a motion for judgment of acquittal, this court considers whether there is substantial evidence as to every material element of the offense charged, and substantial evidence, in turn is defined as "credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” State v. Aplaca,
The appellate court thus defers to the fact-finder, i.e., the jury or the judge, as to matters of "credibility" in making its determination as to whether there was substantial evidence. Id. Moreover, "credibility” cannot be determined on appeal because the appellate court does not observe the demeanor of the witnesses, only the jury can. In this context, "credible” must mean evidence that is not "incredible.” See discussion, supra. Under the majority’s test, however, the court is required to make the credibility determination, based оn whether a reasonable juror could harbor a "reasonable doubt.” See majority’s opinion at 207,
. See Kikuta,
. The majority asserts that weak, inconclusive, or unsatisfactory evidence going to a particular defense would not necessarily be apparent to the trial court without defense counsel having drawn the attention of the court to it by requesting an instruction. Majority’s opinion at 207 n.12,
. Under the majority’s "credible evidence” rule, a defendant would also be at a disadvantage in a jury trial scenario, because there is no corresponding right to a judge-only trial. See Singer v. United States,
. The analysis herein relies on the right to a jury trial as set forth by the Hawai'i constitution, Article I, Section 14.
. HRS § 701-115 provides:
(1) A defense is a fact or set of facts which negatives penal liability.
(2) No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented. If such evidence is presented, then:
(a) If the defense is not an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant’s guilt; or
(b) If the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability.
(3) A defense is an affirmative defense if:
(a) It is specifically so designated by the Code or another statute; or
(b) If the Code or another statute plainly requires the defendant to prove the defense by a preponderance of the evidence.
(Emphasis added.)
. The Commentary to HRS § 701-115 provides, in relevant part:
The Code establishes two classes of defenses. As to both, it places the initial burden on the defendant to come forward with some credible evidence of facts constituting the defense, unless, of course, those facts are supplied by the prosecution’s witnesses.
As to the burden of persuasion, two different rules are codified. In the case of defenses which are not affirmative, the defendant need only raise a reasonable doubt as to the defendant’s guilt. The other side of the coin is that the prosecution must prove beyond a reasonable doubt facts negativing the defense. The prosecution in fact does this when the jury believes its case and disbelieves the defense. In the case of affirmative defenses, the burden on the defendant increases. Now the defendant must prove by a preponderance of the evidence facts which negative the defendant’s penal liability. Subsection (4) defines "affirmative defense,” making it clear that this type of defense needs special legislative prescription. Unless the Legislature has made a particular defense affirmative, the defendant’s burden is only to raise a reasonable doubt.
(Emphasis added.)
. The majority states that Nichols first determined that the court's failure to give the “relevant attributes" instruction was plain error because "under [] Valdivia, the failure to instruct on relevant attributes in a terroristic threatening case is reversible error in any event, whether or not the relevant attributes instruction is requested (as it is in Valdivia) or unrequested (as it was in Nichols)." Majority's opinion at 204,
. Allowing the defendant to waive instructions as to a particular defense could also allow the defendant to "game” the system. A defendant could “obliquely” raise evidence relevant to a particular defense at trial, “while avoiding the court's instruction that would enable the jury to properly evaluate the defense, thereby evading the affirmative evidentiary requirements” that must be satisfied for that defense. People v. DeGina,