* FOR PUBLICATION IN WEST HAWAII REPORTS AND
PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
---o0o---
STATE OF HAWAI`I, Respondent/Plaintiff-Appellee,
vs.
TRACY NICHOLS, Petitioner/Defendant-Appellant
NO. 26870
JULY 12, 2006
LEVINSON,
ACOBA, AND DUFFY, JJ.; WITH NAKAYAMA, J., CONCURRING
SEPARATELY AND
DISSENTING, WITH WHOM MOON, C.J., JOINS
OPINION OF THE COURT BY DUFFY, J.
On January 30, 2006, petitioner/defendant-appellant Tracy Nichols filed an application for a writ of certiorari, requesting that this court review the published decision of the Intermediate Court of Appeals (ICA) in State v. Nichols, No. 26870 (Haw. App. December 29, 2005) [hereinafter, ICA's Opinion], affirming the September 7, 2004 judgment of conviction and sentence of five years' probation of the Circuit Court of the Second Circuit (1) against Nichols for Terroristic Threatening in the First Degree in violation of Hawai`i Revised Statutes (HRS) § 707-716(1)(c) (1993). (2) In his application, Nichols asserts that the ICA gravely erred by: (1) concluding, based on a misinterpretation of State v. Kuhia, 105 Hawai`i 261, 96 P.3d 590 (App. 2004), and the record below, that conviction of terroristic threatening in the first degree does not require a nexus between the alleged threat and the complainant's official status or duties as a public servant; (2) refusing to exercise its "remedial discretion" to reverse the conviction where the ICA concluded that failure to instruct the jury to consider the "relevant attributes" of the parties in determining whether the defendant's remarks constituted a "true threat," as required under State v. Valdivia, 95 Hawai`i 465, 24 P.3d 661 (2001), was plain error that affected Nichols' substantial rights; (3) improperly diminishing the trial court's responsibilities to be limited to, in the absence of any objection, avoiding "only plain error rather than all non-harmless error"; and (4) concluding that the trial court's failure to instruct the jury on the included offense of Terroristic Threatening in the Second Degree, HRS § 707-717 (1993), (3) was not reversible error based on a misapplication of State v. Haanio, 94 Hawai`i 405, 16P.3d 246 (2001), and a misreading of the record below where the instructions on the charged offense were incomplete and deficient.We granted certiorari primarily to address Nichols' contention that the ICA misstated the standard of review for erroneous jury instructions in this jurisdiction. We agree with Nichols that the standard of review as set forth by the ICA misstates this jurisdiction's controlling precedents, and we reject it. We hold that an appellate court will reverse for plain error in jury instructions where the error cannot be said to be harmless beyond a reasonable doubt (i.e., considering the record as a whole, there is a reasonable possibility that the error contributed to the defendant's conviction). Applying that standard to the instant case, we hold that the circuit court's failure to instruct the jury that "it could consider relevant attributes of both the defendant and the subject of the allegedly threatening utterance in determining whether the subject's fear of bodily injury, as allegedly induced by the defendant's threatening utterance, was objectively reasonable under the circumstances in which the threat was uttered," Valdivia, 95 Hawai`i at 479, 24 P.3d at 675, was not harmless beyond a reasonable doubt because there is a reasonable possibility that the error contributed to Nichols' conviction. Accordingly, we reverse the ICA's Opinion, vacate the September 7, 2004 judgment of conviction, and remand this matter to the circuit court for a new trial.
I. BACKGROUND
The facts of the instant case were recited by the ICA as follows:
On September 26, 2003, in the County of Maui, State of Hawaii, Nichols was indicted by a Maui Grand Jury charging him as follows:
Nichols' first trial in the Circuit Court of the Second Circuit commenced on March 29, 2004 and ended in a mistrial on March 31, 2004 because the jury was unable to reach a unanimous verdict. The second jury trial commenced on July 6, 2004.
Departing from Nichols' residence, Officer Krau saw and recognized, by its looks and license plate number, the overdue rental vehicle. It was being driven by a female named Summer Plunk (Plunk). Officer Krau was familiar with Plunk from his prior dealings with her. Officer Krau then conducted a traffic stop approximately 150-200 yards from Nichols' [mother's] residence to determine if someone was concealed in the overdue rental vehicle and to ask Plunk if she knew of Baker's whereabouts.
While Officer Krau was speaking to Plunk, who was being cooperative, Nichols arrived at the location of the traffic stop. According to Officer Krau's testimony, Nichols was upset and began interfering with the police investigation by instructing Plunk not to give any information to the police. In response, Officer Krau advised Nichols that they were conducting an investigation and instructed Nichols to "step back" and "stay away." Despite these commands, Nichols continued to approach Plunk's location and to instruct Plunk not to provide any further information to Officer Krau. As a result of Nichols' noncompliance and persistent interference, Officer Krau handcuffed Nichols and detained Nichols in the back seat of Officer Krau's patrol vehicle.
Approximately two weeks later, on September 16, 2003, at about 10:40 p.m., Officer Krau went to the Tesoro Gas Express in Kihei to purchase beer and chewing gum. At the time, Officer Krau was off-duty and not in uniform. While exiting the store, Officer Krau noticed a white pickup truck parked by the entrance of the store and observed Nichols walking towards him at a fast pace. With questions omitted, the following is Officer Krau's testimony as to the events and verbal exchanges with Nichols that immediately ensued:
. . . .
A I was kind of in shock because this gentleman was talking to me. So I was like, so. So I told him I am 21, I showed my ID to the cashier in the store, just on my way home to have a few beers.
A He then kept coming at me, he got into my face, real close to me, and he is like, yeah, you punk bitch, what you going to do.
A He is in my face, he is like within a foot from me, his fists are clenched, just slightly raised above his hips, he has got his chest sticking out and he is right on [sic] my face, yeah, punk bitch, what are you going to do. He was very angry, angry upset. His voice was raised.
A At that time I felt threatened. I thought this guy is going to hit me or something.
A So then I told him, you know, I'm off duty, it's my day off, just trying to enjoy my day off, I just want to go home and relax, I don't want to deal with you.
A He then tells me, hey, you punk bitch, you're not shit without your gun and your badge and all your boys. He goes, I am going to kick your ass.
A I thought he was going to kick my ass. I thought, well, he was going to assault me.
A So then I have all this . . . beer in my hand and my cell phone, my gum, my wallet, so I am trying to get to my vehicle. I just wanted to leave. I wanted to get out of the area. I didn't want to deal with him. I didn't want to - it was my day off. I was just trying to enjoy my day off.
A So I am side-stepping. I don't want to turn around and walk away from him and give him an opportunity to strike me from behind. So I am kind of keeping my eyes on him and I am sidestepping to my vehicle, trying to get to my vehicle so I can, you know, just go.
A He is following, walking, mirroring as -- he is walking alongside as I am walking, staying right in my face. Same aggression, just fists clenched, he is still aggressive, he is speaking loudly, aggressive tone of voice.
A . . . [Y]eah, he continued calling me a punk bitch, telling me he is going to fuck me up. . . .
A I was totally convinced I was going to get assaulted. This guy was - he was going to attempt to kick my ass.
A I continue sidestepping to my vehicle. I am not trying to provoke [Nichols] in any way, I am not saying anything, I am just going to my vehicle.
Officer Krau departed in the opposite direction from his home because he did not know if Nichols was "waiting, trying to set me up, waiting for me to leave, . . . follow me to my house, or whether [Nichols] was going to jump out or, you know, harm me or my family." Officer Krau then placed a call to his residence, spoke to his father, informed his father of his encounter and prior dealings with Nichols. Officer Krau also advised his father to watch out for a white pickup truck. Officer Krau then called a few co-workers, including his brother, to notify them of what had occurred between Nichols and himself in order to establish Nichols as the prime suspect should "something happen" to Officer Krau or his family members. Officer Krau acknowledged that he should have notified central dispatch immediately to report the incident per proper police procedure, but, in fact, did not do so until returning to work three days later on September 19, 2003.
On July 7, 2004, during the in-chambers settlement of jury instructions, the following discussion regarding the offense of Terroristic Threatening in the Second degree took place, in relevant part:
THE COURT: To the contrary.
[DEFENSE COUNSEL]: I agree.
Number 16: In the Indictment, the defendant, Tracy Nichols, is charged with the offense of Terroristic Threatening in the First Degree.
There are four elements of the offense of Terroristic Threatening in the First Degree, each of which the prosecution must prove beyond a reasonable doubt.
Number 17: A threat does not include any statement which, when taken in context, is not a true threat because it is conditional or made in jest.
True threats must be so unambiguous and have such immediacy that they convincingly express an intention of being carried out.
Number 18: Terrorize means to cause another person to have serious alarm for his or her personal safety.
During its deliberations, the jury did not submit any questions to the trial court. The jury found Nichols guilty as charged.
ICA's Opinion at 2-9 (footnote omitted). Judgment and sentence were entered on September 7, 2004, and Nichols timely appealed therefrom.On appeal, Nichols argued that the circuit court's jury instructions were plainly erroneous in that the circuit court failed to: (1) (a) specify that the prosecution must prove that Officer Krau was a public servant at the time the threat was made and instruct the jury to consider whether the threat was related to, or the result of, Krau's performance as a public servant; (b) define the term "public servant"; (c) instruct the jury that it could consider whether Krau's fear of bodily injury induced by the threat was objectively reasonable under the circumstances, based on the attributes of the defendant and the subject of the threat; and (2) instruct the jury that it could consider the lesser included offense of terroristic threatening in the second degree.
On December 29, 2005, the ICA issued its opinion affirming the judgment of the circuit court. In its opinion, the ICA engaged in a lengthy meditation on the standard of review for erroneous jury instructions, at the end of which it concluded that
in Hawai`i, absent an objection in accordance with HRPP [Hawai`i Rules of Penal Procedure] Rule 30(f), "[n]o party may assign as error the giving or the refusal to give, or the modification of, an instruction." However, even when a party fails to object to an instruction in accordance with HRPP Rule 30(f), appellate courts shall apply the HRPP Rule 52(b) "plain error" standard of review. We leave open the question of whether that standard is that (a) we may recognize plain error when the error committed affects substantial rights of the defendant, or (b) we will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights, or (c) both. We further conclude that, absent an objection by a party in accordance with HRPP Rule 30(f), the trial court's duty "either to correct any defects [in the requested instructions] or to fashion its own instructions" is limited to the duty to avoid only plain error rather than all non-harmless error.
ICA's Opinion at 22-23.Applying the standard of review it had set forth, the ICA first analyzed whether error had been committed at all with respect to the four points assigned by Nichols, concluding: (1) the circuit court erred "when it failed to tell the jury [in instruction No. 20] that a finding that Officer Krau was a 'law enforcement officer'/'police officer' was a finding that Officer Krau was a 'public servant,' id. at 25; (2) the circuit court did not err in failing to instruct the jury that it "must determine that the threat by Nichols was related to, or the result of, the performance of Officer Krau's official duties," id. at 25-26 (citing Kuhia, 105 Hawai`i at 269-70, 96 P.3d at 598-99); (3) the circuit court "erred when it failed to provide the jury with the 'relevant attributes' instruction as required by Valdivia," id. at 28; and (4) Nichols' assertion that the circuit court erred when it failed to instruct the jury on the lesser included offense of terroristic threatening in the second degree lacked merit, id. at 29.
The ICA next considered the severity of the errors it had found, concluding: (1) "[t]he 'public servant' error was not a plain error," id. at 28; (2) "[a]ssuming the 'relevant attributes' error was a plain error, we decline to exercise our remedial discretion," id.; and (3) the failure to give a lesser included offense instruction either (a) was not error because, although Officer Krau was off duty when the alleged threatening occurred, evidence that the alleged threats were unconnected to Krau's duties as a police officer would have been irrelevant, or (b) it was harmless error because the jury convicted Nichols of the charged offense and so it would never have reached the lesser included offense, id. at 29 (citing Haanio, 94 Hawai`i at 415-16, 16 P.3d at 256-57, for the latter proposition). Accordingly, the ICA affirmed the judgment below. Id. at 29.
In response to the ICA's decision, Nichols filed the instant application for a writ of certiorari, arguing that the ICA gravely erred in "refus[ing] to conduct a harmless error analysis" and "declin[ing] to reverse the conviction once the error is shown to not be harmless beyond a reasonable doubt." After Nichols' application was granted, the State of Hawai`i [hereinafter, the prosecution] filed a supplemental brief with leave of this court, in which it agreed with Nichols that the correct standard of review is whether the alleged error was harmless beyond a reasonable doubt, but argued that the failure to give a "relevant attributes" instruction was in fact harmless error.
II. STANDARDS OF REVIEW
A. Jury Instructions and Plain Error
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 error might have contributed 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.
State v. Gonsalves, 108 Hawai`i 289, 292-93, 119 P.3d 597, 600-01 (2005) (internal citations, quotation marks, indentations, and paragraphing omitted; bracketed material added). See also State v. Shinyama, 101 Hawai`i 389, 395, 69 P.3d 517, 523 (2003) (same).HRPP Rule 30(f) (2000), entitled "Instructions and objections," provides in relevant part:
No party may assign as error the giving or the refusal to give, or the modification of, an instruction, whether settled pursuant to subdivision (b) or subdivision (c), of this rule, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.
With respect to the review of errors in light of whether timely objection was or was not made, HRPP Rule 52 (2000) provides:(a) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
In line with HRPP Rules 30 and 52, this court has held that:
As a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error. [State v.] Pinero, 75 Haw. [282,] 291-2, 859 P.2d [1369,] 1374 [(1993)]. If the substantial rights of the defendant have been affected adversely, the error will be deemed plain error. Id. Further, this Court will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights. State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988); see also State v. Kahalewai, 56 Haw. 481, 491, 541 P.2d 1020, 1026 (1975).
State v. Sawyer, 88 Hawai`i 325, 330, 966 P.2d 637, 642 (1998).The use of the HRPP Rule 52(b) plain error standard of review for erroneous jury instructions was recently reaffirmed in State v. Eberly, 107 Hawai`i 239, 112 P.3d 725 (2005), a case decided six months before the ICA's opinion in the instant case. In Eberly, we observed that
notwithstanding HRPP Rule 30[(f)], erroneous [jury] instructions may be grounds for reversal despite counsel's failure to object at trial. Where instructions were not objected to at trial, if the appellant overcomes the presumption that the instructions were correctly stated, the rule is that such 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.
Id. at 250, 112 P.3d at 736 (internal citations and quotation marks omitted) (emphasis in original). We also reaffirmed our previous cases holding that it is ultimately the trial court that is responsible for ensuring that the jury is properly instructed. Id.Nichols argues 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. We agree and reject the ICA's conclusion to the contrary.
Given that the duty to properly instruct the jury lies with the trial court, Nichols argues that "the real question for review of jury instructions, whether as plain error or otherwise, is whether there is a reasonable possibility the error contributed to the verdict. . . . If there is such a reasonable possibility in a criminal case, the error is not harmless beyond a reasonable doubt, and the judgment must be reversed." Nichols continues:
The extensive body of law establishing the standard of review for jury instructions in this jurisdiction does not allow for the exercise of "remedial discretion" once prejudicial error is identified. . . . The ICA [thus] gravely erred in concluding that it had the option to decline to exercise its "remedial discretion" or that it had any remedial discretion at all in regards to such error.
We first note that Nichols is correct in asserting that there is no case in this jurisdiction referring to "remedial discretion" in connection with plain error, nor can we discover any reported criminal case in which this court has found plain error but refused to reverse in the exercise of discretion. While such discretion may exist in the federal courts, we have never employed the four-pronged plain error standard of review set forth in United States v. Olano, 507 U.S. 725 (1993), and we decline to do so now. See State v. King, 555 N.W.2d 189, 194 (Wis. Ct. App. 1996) (declining to follow Olano on state law grounds even though the language of its own plain error rule was substantially identical to that of the federal rule).We disagree with Nichols, however, to the extent his argument can be taken as the assertion that plain error review has no discretionary component. In State v. Aplaca, 96 Hawai`i 17, 25 P.3d 792 (2001), we stated:
[W]hether to recognize error that has not been raised by trial counsel, appellate counsel, or both, as plain error warranting reversal is, ultimately, discretionary. See HRPP Rule 52(b) (2000) ("Plain errors or defects affecting substantial rights may be noticed although not brought to the attention of the court." (Emphasis added.)). Accordingly, we have observed that
State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75 (1993) (cited in State v. Arceo, 84 Hawai`i 1, 34, 928 P.2d 843, 876 (1996) (Nakayama, J., dissenting)). In this vein, we will deem harmless beyond a reasonable doubt, and therefore disregard, "any error, defect, irregularity[,] or variance" that "does not affect [the] substantial rights" of a defendant. HRPP Rule 52(a) (2000).
Id. at 22, 25 P.2d at 797. In effect, we employ our HRPP Rule 52(b) discretion to correct errors that are not harmless beyond a reasonable doubt and to disregard those errors that are harmless beyond a reasonable doubt.
However, the necessary implication of this approach is that the same standard of review is to be applied both in cases in which a timely objection to a jury instruction was made and those in which no timely objection was made. The ICA in this case correctly recognized that the merger of the plain error and harmless error standards of review in the case of jury instructions flows from this court's holding in Haanio (5) that the duty to instruct the jury ultimately lies with the trial court:If the duty to give the right jury instructions is assigned to the trial court, (a) the standard of review for an erroneous jury instruction will always be the harmless error non-discretionary standard, and will never be the plain error discretionary standard, and much uncertainty will be avoided; (b) an erroneous jury instruction will never be a basis for a defendant's assertion that he/she has been the victim of the ineffective assistance of counsel; and (c) abuse of the plain error discretionary standard of review will be avoided.
ICA's Opinion at 19-20. The ICA previously attempted to implement its view of the consequences of the allocation of ultimate responsibility for jury instructions to the trial court in State v. Astronomo, 95 Hawai`i 76, 18 P.3d 938 (App. 2001), concluding that "with respect to jury instructions, the distinction between 'harmless error' and 'plain error' is a distinction without a difference." Id. at 82, 18 P.3d at 944. Accord State v. Fields, No. 25455, 2005 WL 1274539, at *19 n.7 (App. May 31, 2005) ("Now that this duty [to properly instruct the jury] has been imposed on the trial court, it is logical to conclude that erroneous instructions should be examined for HRPP Rule 52(a) 'harmless error' rather than HRPP Rule 52(b) 'plain error.'"), cert. granted 108 Haw. 1, 116 P.3d 7 (Haw. July 6, 2005). Based, however, on the perceived failure of this court in State v. Iuli, 101 Hawai`i 196, 203-04, 65 P.3d 143, 150-51 (2003), to approve Astronomo or affirmatively cite the duty of the trial court to properly instruct the jury, the ICA in the instant case took the view that the ultimate responsibility for jury instructions does not lie with the trial court and that it should thus apply a discretionary plain error standard of review to erroneous jury instructions. ICA's Opinion at 22-23.B. Included Offenses
"[T]rial courts must instruct juries as to any included offenses when 'there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense[.]'" Haanio, 94 Hawai`i at 413, 16 P.3d at 254 (quoting HRS § 701-109(5) (1993)).
III. DISCUSSION
In addition to his allegation of error with respect to the standard of review, Nichols repeats three of the four points he pressed before the ICA, arguing that the failure to give a "relevant attributes" instruction, lesser included offense instruction, and nexus instruction (i.e., instruction that the jury must find that the threat by Nichols was related to, or the result of, the performance of Officer Krau's official duties) were each instances of reversible plain error. The prosecution, as the ICA noted, concedes that the failure to give the "relevant attributes" instruction was error but argues that it was not plain error. On the other hand, the prosecution contends that the circuit court did not err at all in failing to give a nexus or lesser included offense instruction. For the reasons set forth below, we hold that: (1) the circuit court's failure to give a "relevant attributes" instruction was plain error; but (2) the circuit court's failures to give nexus and lesser included offense instructions were not error.
A. The Circuit Court's Failure to Issue a "Relevant Attributes" Instruction Was Not Harmless Beyond a Reasonable Doubt.
Nichols argues that the circuit court plainly erred in failing to instruct the jury, pursuant to Valdivia, "that the attributes of the defendant and the complainant could be taken into consideration in assessing whether, under the circumstances, Nichols' remarks were a 'true threat.'" Specifically, Nichols argues that because Krau was "trained as a police officer to a professional standard of behavior to handle physical confrontations that ordinary citizens might not be expected to equal," the same allegedly threatening utterances of Nichols that might have induced "a reasonable fear of bodily injury" in an ordinary citizen might not have had the same effect on someone with Krau's training. Nichols further argues that, based on Krau's testimony tending to show that he "dealt with the situation in a calm, rational manner," there was evidence from which a jury could reasonably have concluded, had it been properly instructed, that Krau did not have a reasonable fear of bodily injury. Based on this reasonable possibility that the error contributed to his conviction, Nichols asserts that the "error was not harmless beyond a reasonable doubt and the ICA erred in failing to so find." The ICA assumed the error was plain, but refused to exercise its "remedial discretion" to set aside the conviction. ICA's Opinion at 28. Applying the correct standard of review set forth above in Section II.A, we hold that: (1) the failure to give a relevant attributes instruction was erroneous, and (2) there is a reasonable possibility that the error contributed to Nichols' conviction, i.e., the error was not harmless beyond a reasonable doubt.1. The Failure to Give a Relevant Attributes Instruction Was Erroneous.
Because the prosecution's confession of error is not binding upon the appellate court, we must still first determine whether the circuit court erred in failing to give a relevant attributes instruction. State v. Solomon, 107 Hawai`i 117, 126, 111 P.3d 12, 21 (2005). In Valdivia, the defendant was arrested while attempting to flee from police, handcuffed, and taken to the hospital. Valdivia, 95 Hawai`i at 470, 24 P.3d at 666. While seated and awaiting treatment, still handcuffed, and flanked by two police officers, the defendant turned to one officer and said, "I'm gonna kill you and your police uniform." Id. at 471, 24 P.3d at 667. The officer testified that this statement "worr[ied]" him. Id. The defendant was subsequently charged with terroristic threatening in the first degree against a public servant. Id. On appeal after conviction, the defendant argued that the trial court erroneously failed, over his objection, to instruct the jury that "[w]here a threat is directed at a police officer, you may consider that police officers are trained to a professional standard of behavior that ordinary citizens might not be expected to equal." Id. at 479, 24 P.3d at 675. This court agreed that the failure to instruct the jury that the threatened person's status and training as a police officer was relevant was reversible error, holding:[I]n order for an utterance to constitute a "true threat," it must be objectively susceptible to inducing fear of bodily injury in a reasonable person at whom the threat is directed and who is familiar with the circumstances under which the threat is uttered. . . . That being the case, the particular attributes of the defendant and the subject of the threatening utterance are surely relevant in assessing whether the induced fear of bodily injury, if any, is objectively reasonable.
Id. This holding was based on our decision in In re Doe, 76 Hawai`i 85, 869 P.2d 1304 (1994), where we reasoned that in considering whether the offense of harassment has been committed against a police officer, the fact that the "object of the [allegedly harassing utterances] is a trained and experienced police officer" maintaining a "professional standard of restrained behavior" is a factor. Id. at 96, 869 P.2d at 1315.As set forth above, the trial court in this case gave the following true threat instruction without objection:
A threat does not include any statement which, when taken in context, is not a true threat because it is conditional or made in jest.
True threats must be so unambiguous and have such immediacy that they convincingly express an intention of being carried out.
(Emphasis added.) We agree with the parties that this instruction is defective under Valdivia because it does not make clear to the jury that Nichols' and Krau's particular attributes, including their relative size and weight, Nichols' apparent capacity and inclination to carry out his threat, and Krau's status and training as a police officer, were relevant in determining whether Nichols' alleged threats were objectively capable of inducing a reasonable fear of bodily injury under the circumstances.
2.
There is a Reasonable Possibility that the Failure
to Give a "Relevant Attributes" Instruction
Contributed to
Nichols' Conviction.
First, it is true that the defendant in Valdivia, unlike Nichols, objected to the erroneous instruction at trial. However, as explained above in Section II.A, this distinction is irrelevant because it is the duty of the trial court to see that the jury is properly instructed. As also set forth above, erroneous jury instructions are presumptively prejudicial unless it affirmatively appears from the record as a whole that the error was harmless beyond a reasonable doubt. Nichols argues that the record does not in fact affirmatively demonstrate harmlessness, referring us to evidence that Officer Krau was calm in departing the scene and did not immediately report the threat to central dispatch according to police procedure. He suggests that, had the jury been properly instructed, it could reasonably have concluded based on this evidence that Nichols' alleged threats were not objectively capable of, and did not in fact, induce a reasonable fear of bodily injury in a trained police officer like Krau.
The prosecution counters that this case is distinguishable from Valdivia on the facts, with the result that there is no reasonable possibility here that the failure to give an attributes instruction contributed to the conviction. In Valdivia, on the one hand, the defendant was seated, handcuffed, surrounded by two on-duty officers in uniform, and the threatened officer testified only that the allegedly threatening statement "worried" him. Here, on the other hand, the evidence showed, inter alia, that: (1) Krau was off duty, alone, weaponless, and caught off-guard; (2) Nichols was not seated and restrained in handcuffs, but was instead standing within a foot of Krau's face with his fists clenched; and (3) Krau was not merely worried, but (a) "was totally convinced [he] was going to get assaulted [and that Nichols] was going to attempt to kick [his] ass," (b) drove off in the opposite direction from his home to avoid being followed, (c) warned his father to watch out for Nichols' truck, and (d) called a few friends and his brother to establish Nichols as the prime suspect in the event something should happen to him or his family members.
While the distinctions drawn by the prosecution have some merit, we are unwilling to speculate as to what the jury would have done had it been given a proper "relevant attributes" instruction. In the absence of such an instruction, we cannot know whether, under the evidence here, the jury would have concluded beyond a reasonable doubt that Nichols' threats were objectively capable of inducing a reasonable fear of bodily injury in a police officer, as opposed to an ordinary person, in Krau's circumstances. Based upon our review of the record as a whole, we thus conclude that there is a reasonable possibility that the jury might have weighed the evidence differently had it been properly instructed. Therefore, we hold that the circuit court's failure to provide a "relevant attributes" instruction was not harmless beyond a reasonable doubt. (8)
B. Nichols' Remaining Points of Error Are Without Merit.
Because we vacate the judgment below and remand for a new trial due to the plain error discussed in Section III.A, we need not consider Nichols' remaining points of error. We nevertheless address them in order to provide guidance to the circuit court on remand. See, e.g., KNG Corporation v. Kim, 107 Hawai`i 73, 80, 110 P.3d 397, 404 (2005) (analyzing the constitutionality of a statute for the benefit of the court on remand); Gap v. Puna Geothermal Venture, 106 Hawai`i 325, 341-43, 104 P.3d 912, 928-30 (2004) (offering guidance on remand as to appropriate sanctions); State v. Aganon, 97 Hawai`i 299, 303, 36 P.3d 1269, 1273 (2001) (providing guidance on remand regarding the propriety of certain jury instructions). Based on the record presently before us, we conclude that the court on remand is not required to give either a nexus instruction or lesser included offense instruction.1.
The Trial Court Is Not Required to Issue a Nexus
Instruction on Remand Because Terroristic
Threatening in the
First Degree Does Not Require a Nexus Between the Threat and the
Official Duties
of the Public Servant if the
Threatened Person Is a Government Officer or Employee.
Nichols contends that persons not actively performing a governmental function at the time they are threatened should not be considered "public servants" within the meaning of HRS § 710-1000(15). He further argues that because Officer Krau was off duty and in plain clothes at the time of the alleged threatening in this case, he was not a public servant and thus there was "a question of fact as to whether there was a nexus between the alleged threat and the complainant's official status or duties" requiring that the trial court so instruct the jury. We, like the ICA, disagree on the basis that the offense of terroristic threatening in the first degree does not require a nexus between the alleged threat and the threatened person's status as a public servant where the threatened person is a government officer or employee, and thus hold that the circuit court did not err in failing to give a nexus instruction.
HRS § 710-1000(15) does not necessarily require that a person be actively performing a governmental function (unlike, e.g., HRS § 707-701(b) (1993 and Supp. 2001), which requires that a law enforcement officer's death "aris[e] out of the performance of official duties") and acting within the scope of his or her employment in order to qualify as a public servant. In Kuhia, the ICA rejected a contrary reading of the statute, reasoning as follows:
The definition of "public servant" in HRS § 710-1000(15) contains three clauses, as diagrammed below:
(Emphasis and brackets added.) The term "governmental function" is further defined in HRS § 710-1000(6) (1993) as including "any activity which a public servant is legally authorized to undertake on behalf of the government."
Kuhia, 105 Hawai`i at 270, 96 P.3d at 599 (emphases in original). We agree that HRS § 710-1000(15), properly read, distinguishes between two categories of people: (1) government employees or officers, for whom there is no requirement that they be performing a governmental function at a given time in order to qualify as a public servant; and (2) private persons, who must be performing a governmental function in order to qualify as a public servant. We therefore adopt the analysis of the ICA in Kuhia and hold that: (1) a threatened person, such as Officer Krau here, who is a government employee and thus falls under the first clause of HRS § 710-1000(15), (9) need not be actively performing a governmental function at the time he or she is threatened in order to qualify as a public servant for purposes of the terroristic threatening in the first degree offense; and (2) consequently, there is no requirement of a nexus between the alleged threats and the threatened person's official status or duties. (10) Accordingly, we hold that the circuit court on remand is not required to give a nexus instruction.
2.
Assuming the Same Evidence Is Presented at a
Subsequent Trial, the Trial Court Is Not Required to
Give a
Lesser Included Offense Instruction.
Nichols also argues that the trial court erred by failing to instruct the jury on the lesser included offense of terroristic threatening in the second degree. In Haanio, this court held that a trial court is obligated to give a lesser included offense instruction when there is a rational basis for it in the evidence, even if, as in this case, no request or objection is made by the parties. Haanio, 94 Hawai`i at 415, 16 P.3d at 256. Thus the sole question is, assuming the same evidence is presented at a subsequent trial, whether there is a rational basis in the evidence for a jury to conclude that Nichols committed terroristic threatening in the second degree.
Upon reviewing the evidence in the record before us in this case, we believe that there is no rational basis in the evidence on which a jury could conclude that Nichols did not have the requisite state of mind with respect to the attendant
circumstance of "public servant." In particular, we note Officer Krau's uncontradicted testimony that: (1) in the course of his official duties as a police officer, Krau had been involved in a confrontation with Nichols on September 1, 2003; and (2) during the course of the alleged threatening that took place fifteen days later, Nichols stated, "You're not shit without your gun and your badge and all your boys." (Emphasis added.) The only rational inference that could be drawn from this evidence, assuming that the trier of fact finds it credible, is that Nichols knew that he was threatening a police officer. (11) Accordingly, unless Nichols presents evidence at a future trial that would allow some other rational inference to be drawn, we hold that the trial court is not required to instruct the jury on the lesser included offense of terroristic threatening in the second degree.
1. The Honorable Shackley F. Raffetto presided over the trial and the Honorable Reinette W. Cooper presided over sentencing.
2. HRS § 707-716(1)(c) provides:
Terroristic threatening in the first degree is a class C felony. HRS § 707-716(2). HRS § 707-715(1) (1993) in turn defines terroristic threatening in relevant part as follows:
3. HRS § 707-717(1) provides that "[a] person commits the offense of terroristic threatening in the second degree if the person commits terroristic threatening other than as provided is section 707-716." Second degree terroristic threatening is a misdemeanor. HRS § 707-717(2).
4. Nichols' counsel did in fact object to instruction No. 20, stating, "I am always afraid of giving a partial piece of a statute, since it's purely from [HRS §] 710-1013 [sic]. . . . [I]f we are to quote the statute, we should quote all of it." At the same time, Nichols' counsel did agree that there was absolutely no dispute in this case "as to what a law enforcement officer is."
HRS § 710-1000 (1993) states in relevant part:(13) "Law enforcement officer" means any public servant, whether employed by the State or subdivisions thereof or by the United States, vested by law with a duty to maintain public order or, to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses;
5.
In Haanio,
we held that "the trial courts, not the parties, have the duty and
ultimate responsibility to insure that juries are
properly instructed on issues of criminal liability." Haanio, 94 Hawai`i at 415,
16 P.3d at 256 (citations omitted). In so
doing, we reexamined our decision in State v. Kupau, 76 Hawai`i
387, 879 P.2d 492 (1994), and rejected the ICA's view
that a defendant's sufficient understanding of the consequences of the
waiver of the right to have a lesser included offense
instruction should measure a trial court's decision to give or not give
an otherwise proper included offense instruction. Id.
at 412-13, 16 P.3d at 253-54. In so doing, we also rejected the view
that the parties, as a matter of trial strategy or
constitutional law, have any right to forego such an instruction. Id. at 414-15, 16 P.3d at
255-56. As a consequence, we
find misplaced the dissent's contention that "tactics or strategies in
the interests of the client," Dissent at 15, have any
relevance to a determination of the existence of instructional error. At the same time,
the parties are by no means precluded from taking part in the settling
of jury instructions. We were
careful to note in Haanio
that "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." 94 Hawai`i at 415, 16 P.3d at 256. We reaffirm that
statement and also add that nothing said in Haanio
precludes the trial court from requiring the parties to submit relevant
instructions for its review. See
HRPP Rule 30(b) ("At
such reasonable time as the court directs, the parties shall file
written requests that the court instruct the jury on the law."). In this
connection, we also consider the dissent's fears of gamesmanship and
manipulation in the arena of jury instructions,
and find that they are, at best, premature. See Dissent at 9-12.
Although the dissent cites various provisions of the Hawai`i
Rules of Professional Conduct (HRPC) in support of its view, we believe
that it is those very rules which facilitate and
support our decision to allocate ultimate instructional responsibility
in Haanio and here.
In particular, we emphasize the
point that attorneys have a duty of candor toward the tribunal. See Dissent at 14; HRPC
Rule 3.3. Under HRPC Rule
3.3(a)(1) (providing that an attorney shall not knowingly make a false
statement of law to the tribunal), attorneys who
knowingly submit erroneous jury instructions, see Dissent at 12, risk
sanctions and disciplinary proceedings. Furthermore,
under HRPC Rule 3.3(a)(3) (providing that an attorney shall not
knowingly fail to disclose adverse, controlling authority to
the tribunal), attorneys who omit to point out erroneous instructions, see id., face the same
consequences. Moreover,
attorneys contemplating instructional skulduggery would be well advised
to consider the risk of a civil suit for legal
malpractice by a dissatisfied client (e.g., suppose that an
attorney intentionally fails to request a proper instruction or object
to an erroneous instruction, the client is convicted, prevails on
appeal, and, unhappy after having served two years of
incarceration while the appeal was pending, sues, arguing that if
counsel had not acted in a deceptive manner in the first
place, the client would not have been convicted). While we are not
unaware of the proof problems and attorney-client
privilege issues attendant to disciplinary and civil proceedings in
such cases, we consider the risks of these proceedings and
appellate sanctions to be adequate deterrence to gamesmanship.
6.
The dissent argues that the implied consequence of our holding today is
that "the appellate courts shall
seek out
erroneous jury instructions within the record, either when called upon
by the parties or sua
sponte, and shall
reverse the
trial court unless it can be proven that the instructional error was
harmless beyond a reasonable doubt." Dissent at 5-6
(emphasis added). The fear that appellate discretion has been
eviscerated is unfounded; we emphasize that the phrase
"once instructional error is demonstrated" in our holding is not to be
taken lightly. As already noted above, this point was
made clear in Eberly:
"Where instructions were not objected to at trial, if the appellant overcomes the
presumption that the
instructions were correctly stated, the rule is that such
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." 107 Hawaii at
250, 112 P.3d at 736 (internal citations and quotation marks omitted)
(emphasis added). In other words, there was and
remains a presumption that unobjected-to jury instructions are correct;
hence, the appellate court is under no duty to scour
the record for error sua
sponte. Accordingly,
we carve out today no "invisible exceptions," Dissent at 12, to the
rules of
appellate procedure (i.e.,
Hawai`i Rules of Appellate Procedure Rules 28(b)(4) and 40.1(d)(1)) or
penal procedure (HRPP
Rules 30 and 52) regarding appellate discretion to notice forfeited
assignments of error generally or instructional error in
particular. 7.
The prosecution also argues that the failure of
Nichols' counsel to propose a "relevant attributes" instruction was the
result of gamesmanship, and thus "in order to protect the integrity and
public reputation of judicial proceedings, [Nichols]
should now be precluded from unfairly invoking the plain error
doctrine, where under the facts of this case, trial counsel
apparently had knowledge of the error, but chose to remain silent."
This court has acknowledged that, as a general rule,
invited errors are not reversible. State v. Jones, 96 Hawai`i
161, 166, 29 P.3d 351, 356 (2001); State v. Puaoi, 78 Hawai`i
185, 189, 891 P.2d 272, 276 (1995); State v. Smith, 68 Haw.
304, 313-14, 712 P.2d 496, 502 (1986). However, we have
also noted that the general rule is inapplicable where an invited error
is so prejudicial as to be plain error or to constitute
ineffective assistance of counsel. Smith, 68 Haw. at 314, 712
P.2d at 502. See also Haanio, 94 Hawai`i at 415,
16 P.3d at
256 ("Our courts are not gambling halls but forums for the discovery of
truth." (Citation omitted.)). In other words, we are
cycled back to our original inquiry.
8.
With respect to
the prosecution's additional contention that the lack of a "relevant
attributes" instruction was cured by statements made by the
parties in closing arguments, we note that just as arguments of counsel
cannot substitute for evidence, State v. Quitog, 85 Hawai`i
128, 144, 938
P.2d 559, 575 (1997), so too may they not cure defects in jury
instructions:
9.
We note that we are not presented here with a
person falling under the second clause of HRS § 710-1000(15) and
thus
expressly reserve our opinion on the question whether a nexus
instruction (and, if so, of what sort) might be required in
such a case. 10.
Nichols nevertheless maintains that "the
absence of a nexus [requirement] could render application of the
[terroristic
threatening] statute unconstitutional[ly vague]." This contention is
without merit. A cardinal rule of criminal law is that a
defendant must have the required state of mind with respect to each
element of the charged offense, including the attendant
circumstances. See
HRS § 702-204 (1993) (providing that "a person is not guilty of an
offense unless the person acted
intentionally, knowingly, recklessly, or negligently, as the law
specifies, with respect to each element of the offense"); HRS
§ 702-205 (1993) (providing that the elements of an offense
include attendant circumstances). HRS § 707-115(1) provides
that the required state of mind for terroristic threatening generally
is that the alleged threats be made "with the intent to
terrorize, or in reckless disregard of the risk of terrorizing." As set
forth above, terroristic threatening in the first degree
under HRS § 707-116(1)(c), supra note 2, requires that
the threat is made against a public servant. Because the offense of
terroristic threatening in the first degree includes the attendant
circumstance "against a public servant," a defendant must
have the requisite mental state with respect to that circumstance, i.e., the defendant must
intend, know, or recklessly
disregard the risk that he or she is threatening a person who is a
public servant. Therefore, there is no vagueness problem
because a defendant who threatens a stranger dressed in pajamas could
not be convicted of terroristic threatening in the first
degree even if it subsequently comes to light that, unbeknownst to the
defendant at the time, the pajama-clad figure is, say,
a police officer.
11.
Although Nichols does not press the point in his
application, we note for the benefit of the court on remand that we
agree with the ICA both that: (1) the trial court erred, "when it
failed to tell the jury that a finding that Officer Krau was a
'law enforcement officer'/'police officer' was a finding that Officer
Krau was a 'public servant,'" ICA's Opinion at 25; but
(2) the error was harmless because it favored the defense in failing to
complete for the jury the chain of equivalence that
"police officer = law enforcement officer = public servant." ICA's
Opinion at 28.