NOT FOR
PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28821
IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAI‘I, Plaintiff-Appellee, v.
ANTHONY PETER FUNN, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST
CIRCUIT
(CR. NO. 06-1-2348)
SUMMARY DISPOSITION ORDER
(By: Watanabe,
Acting C.J., Foley and Fujise, JJ.)
On appeal, Funn
contends the
circuit court plainly erred or abused its discretion by (1) giving an
elements
jury instruction that misstated the law as to the UUDP charge; (2)
failing to
define "controlled substance"; (3) failing to give a unanimity
instruction; (4) admitting evidence of Funn's post-arrest silence
during the
case-in-chief of the State of Hawai‘i (State); (5) giving a prejudicial jury
instruction
regarding Funn's out-of-court statement to police; and (6) permitting
prosecutorial misconduct during opening and closing statements. Funn asks this court to vacate the Judgment
and remand the case for a new trial.
Upon careful review
of the
record and the briefs submitted by the parties and having given due
consideration to the arguments advanced and the issues raised by the
parties,
as well as the relevant statutory and case law, we resolve Funn's
points of
error as follows:
(1) The circuit
court did not
plainly err by giving an elements jury instruction as to the UUDP
charge. The circuit court's jury
instruction that a
person commits the offense of UUDP "if he uses or possesses an object
with
the intent to ingest, inhale, or otherwise introduce" -- instead of
with
"[the] inten[t] to use the object to ingest, inhale, or
otherwise
introduce" -- a controlled substance into the human body was not plain
error. (Emphasis added.)
When read as a whole, the instruction made
clear that the State had the burden to prove Funn possessed and
intended to use
an object for purposes of introducing a controlled substance into his
body.[2] See Nelson v. Univ. of
Hawai‘i,
97 Hawai‘i 376, 386, 38 P.3d 95, 105 (2001) (internal
quotation
marks and citation omitted) ("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.").
Funn's substantial rights, therefore, were
not affected by the circuit court's instruction.
(2) The circuit
court did not
plainly err by failing to define the term "controlled
substance." In State v. Whitaker,
117 Hawai‘i
26, 40, 175 P.3d 136, 150 (App. 2007), this court stated that "the
trial
court is not required to instruct the jury in the exact words of the
applicable
statute but [is required] to present the jury with an
understandable
instruction that aids the jury in applying that law to the facts of the
case."
(Emphasis added.) In State v. Kupihea,
98 Hawai‘i
196, 199, 46 P.3d 498, 501 (2002), the Hawai‘i Supreme Court held that a jury instruction,
explicitly establishing "methamphetamine [as] a controlled substance
under
state law . . . simply restate[d] the statutory language of HRS
§ 329-43.5(a)." The circuit
court in the instant case also informed the jury of the language of HRS
§ 329-43.5(a), thereby providing the jury with an understandable
instruction that sufficiently established methamphetamine as a
"controlled
substance."
(3) The circuit
court did not
plainly err by failing to give a unanimity instruction.
The record reflects that the State
effectively elected the glass pipe as the specific item it would rely
on to
establish the UUDP charge. The State's
mention
of "an object" for purposes of HRS § 329-43.5(a) was made only in
reference to the glass pipe; no effort was made to establish a
violation in
regard to any other object. See State
v. Gomes, 93 Hawai‘i
13, 21, 995 P.2d 314, 322 (2000) (holding that the State effectively
elected
one of two events that could be deemed "separate and distinct culpable
acts" to establish assault, where substantial bodily injury was
discussed
only in reference to one event).
Defense counsel,
furthermore,
addressed the jury during opening statements, stating:
And, by the
way,
we're talking about a pipe
which is
actually . . . a three inch cylinder of glass that contained burnt
residue of
crystal methamphetamine, okay. That's
what we're talking about in this case.
. . . .
But, the evidence will
show in this case that the
pipe
was not his, okay.
The evidence will
show [Funn] never possessed
that pipe[.]
(Emphases added.) Where both the State and Funn's arguments
identified the glass pipe as the object at issue, no unanimity
instruction was
required.
(4) The circuit
court did not
plainly err by admitting testimony regarding statements Funn made or
did not
make to officers. During opening
statements, defense counsel stated:
(5) The circuit
court did not
plainly err by giving a jury instruction regarding Funn's out-of-court
statement to police. Funn contends the
circuit court's instruction "implied to the jury that it must consider
Funn's exculpatory statements under a special set of criteria[,] . . .
in a
manner distinct from other witnesses . . . [and] every other issue in
this
case."[5] The circuit court explicitly
instructed,
however, that Funn "has no duty or obligation to call any witnesses or
produce any evidence. [Funn] in this
case has testified. When a defendant
testifies, his credibility is to be tested in the same manner as any
other
witness." In the instant case,
taken as a whole, the instructions were not prejudicially insufficient,
erroneous, inconsistent, or misleading. Nelson,
97 Hawai‘i at
386, 38 P.3d at 105. The jury is
presumed to have followed the circuit court's instructions. State
v. Klinge,
92 Hawai‘i
577, 592, 994 P.2d 509, 524 (2000).
(6) The circuit
court did not
plainly err or abuse its discretion by permitting prosecutorial
misconduct
during opening and closing statements.
"Prosecutorial misconduct warrants a new trial or the setting
aside
of a guilty verdict only where the actions of the prosecutor have
caused
prejudice to the defendant's right to a fair trial."
State v. McGriff, 76 Hawai‘i 148, 158, 871 P.2d 782, 792 (1994)
(citations
omitted). "In order to determine
whether the alleged prosecutorial misconduct reached the level of
reversible
error, we consider the nature of the alleged misconduct, the promptness
or lack
of a curative instruction, and the strength or weakness of the evidence
against
defendant." State v. Agrabante,
73 Haw. 179, 198, 830 P.2d 492, 502 (1992).
With respect to the
opening
statement at issue,[6] the record indicates that
the
State sought to tender and admit the evidence through Brody's
explanation of
his subsequent actions and observations.
See State v. Sanchez, 82 Hawai‘i 517, 528, 923 P.2d 934, 945 (App. 1996)
(internal
quotation marks and citation omitted) ("The State should only refer in
the
opening statement to evidence that it has a genuine good-faith belief
will be
produced at trial."). Any
impropriety created by the Deputy Prosecuting Attorney's opening
statement,
furthermore, was sufficiently cured by the circuit court's instruction
that
"[t]he opening statements are not evidence. It's
an explanation to you by the attorneys
of what they believe will be proven to you in the case.
The evidence comes to you in the form of
testimony and exhibits."
Similarly, any
impropriety created
by the Deputy Prosecuting Attorney's closing statement[7]
was sufficiently cured when
the
circuit court sustained defense counsel's objection and provided the
following
jury instructions:
Trial procedures are
governed by rules. When an attorney
believes that the rules
require it, it is his or her duty to raise an objection.
It is within the province of the trial judge
to rule on such objection. During the
course of this trial, you have heard counsel make objections. You must not consider objections raised by
counsel in your deliberations.
Statements or remarks
made by counsel are not
evidence. You should consider their
arguments to you,
but you are not bound by their recollections or interpretations of the
evidence. You must also disregard any
remark I may have
made unless the remark was an instruction to you. If
I have said or done anything which has
suggested to you that I am inclined to favor the claims or positions of
either
party, or if any expression or statement of mine has seemed to indicate
an
opinion relating to which witnesses are or are not worthy of belief or
what
facts are or are not established or what inferences should be drawn
therefrom,
I instruct you to disregard it.
Neither instance of
alleged
prosecutorial misconduct rose to the level of reversible error.
Therefore,
IT IS HEREBY
ORDERED that the
Judgment of Conviction and Probation Sentence filed on October 1, 2007
in the
Circuit Court of the First Circuit is affirmed.
DATED:
On the briefs:
Craig W. Jerome,
Deputy Public
Defender,
for
Defendant-Appellant.
Donn Fudo,
Deputy Prosecuting
Attorney,
City and
for
Plaintiff-Appellee.
[1] The
Honorable
Michael D. Wilson presided.
[2] The
circuit
court instructed the jury as follows:
In Count II of the
felony
information, [Funn] is charged with the offense of [UUDP].
A person commits
the offense
of [UUDP] if he uses or possesses an object with the intent to
ingest,
inhale, or otherwise introduce into the human body a controlled
substance.
There are two
material
elements of the offense of [UUDP], each of which the [State] must prove
beyond
a reasonable doubt.
These two elements
are:
One, that on or
about the
19th day of November, 2006, in the City and County of Honolulu, [Funn]
used
or possessed an object with the intent to ingest, inhale, or otherwise
introduce into the human body a controlled substance;
And two, that the
object
was drug paraphernalia.
Drug paraphernalia
means all
equipment, products, and materials of any kind which are used,
intended for
use, or designed for use in ingesting, inhaling, or otherwise
introducing
into the human body a controlled substance.
It includes but is not limited to objects used, intended for
use, or
designed for use in ingesting, inhaling or otherwise introducing
marijuana,
cocaine, hashish, hashish oil, or methamphetamine into the human body,
such as
metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or
without
screens, permanent screens, hashish heads, or punctured metal bowls.
In determining
whether or not
it is drug paraphernalia, you should consider, in addition to all other
logically relevant factors the following:
. . . .
In order for the
object to be
drug paraphernalia, the [State] must prove that [Funn] intended
that the
object be used with a controlled substance.
Without
[Funn's]
intent to
use the object with a controlled substance, none of the specific
examples or
factors listed above can transform the object into drug paraphernalia.
(Emphases
added.)
[3] Consistent
with defense counsel's statement, Funn testified on direct examination
that
"from the time when I had gotten up within the first minute [Officer
Deitschmann] yelled for the camera and he was staring at [the pipe] I
repeatedly told him it was not mine."
[4] The
State
questioned Officer Deitschmann on direct examination as follows:
Q. [State] Okay,
now, at any time up to that point did
[Funn] ever say that that pipe was not his?
A. [Officer
Deitschmann] Not at the scene, no, sir. He did later, but, not at the scene.
Q. When did he
begin to tell
you that that pipe was not his?
A. That was maybe
an hour
later [at]
. . . .
Q. But, at the time
you arrested
him --
. . . .
Q. -- he never said
that
wasn't his pipe?
A. No, sir.
Q. Was there any
discussion
about the pipe?
A. No, sir.
. . . .
Q. Okay, But, he
was also
told that he was being arrested for -- for the possession of the pipe,
right?
A. Yes, sir.
Q. And, he didn't
say it
wasn't his then, did he?
A. Not at that
time, sir.
Q. Only at the
hospital?
A. Yes, sir.
Defense
counsel
also
questioned Officer Deitschmann as to whether Funn denied possession of
the
pipe:
Q. [Defense Counsel]
[Funn] never told you that was his pipe,
right?
A. [Officer
Deitschmann] No.
*
* *
Q. Now at this
point [Funn]
is lunging towards the pipe, is it your testimony you guys had no
conversation
whatsoever about the pipe that was on the ground?
A. I didn't talk to
him about
it, no. . . .
Q.
And, at this point in time he hadn't told you
that that's not my stuff, that's not my pipe, he never told you that?
A. No, sir.
[5] Funn
identifies the following instruction as plainly erroneous:
As
the sole and
exclusive
judges of the facts and of the credibility of the witnesses, it is your
exclusive right to determine whether and to what extent [Funn's]
out-of-court
statement to police is worthy of belief.
In evaluating the reliability and
trustworthiness of the
out-of-court
statement, you should consider all of the circumstances surrounding the
making
of the statement.
There
has
been conflicting testimony as to whether [Funn] made a statement
outside of
court. It is for you to decide whether
or not [Funn] made the statement. In
making this decision, you should consider all of the evidence about the
statement, including the circumstances under which [Funn] may have made
it.
[6] Funn
identifies the following statements in the Deputy Prosecuting
Attorney's
opening statement as grounds for his prosecutorial-misconduct claim:
[Deputy Prosecuting
Attorney]: A little bit before seven
[Brody's] workers also preparing [to open the restaurant] let him know
that . .
. [Funn] is still out there still passed out, and, that he has a
crack
pipe. His employees call it a crack pipe.
[7] Funn
identifies the following portion of the Deputy Prosecuting Attorney's
closing
argument as grounds for his claim:
[Deputy Prosecuting
Attorney]: It was an ice pipe as far as
Officer Deitschmann was concerned and in his experience as an officer
and even
apparently to the people in the restaurant who saw the pipe. They don't [know] what an ice
pipe is or
--
. . . .
Even according
to . . .
Brody who went and confirmed himself and looked and saw that there was
an ice
pipe, he didn't call it an
ice
pipe. He called it a pipe that he [sic]
used for drugs.