State v. Henley. , 136 Haw. 471 ( 2015 )

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Electronically Filed
Supreme Court
SCWC-13-0005595
22-DEC-2015
10:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
JONATHAN HENLEY, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-13-0005595
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0005595; CR. NO. 13-1-0635)
DECEMBER 22, 2015
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION BY McKENNA, J.
I. Introduction
Petitioner/Defendant-Appellant Jonathan Henley (“Henley”)
appeals from the ICA’s judgment, which affirmed the Circuit
Court of the First Circuit’s1 (“circuit court”) Judgment of
Conviction and Sentence, which adjudged Henley guilty of Assault
in the Third Degree, sentenced him to 30 days’ imprisonment, and
1
The Honorable Patrick W. Border presided.
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increased bail from $200.00 to $2,000.00 cash only pending
execution of sentence. On certiorari, Henley asserts (1) that
insufficient evidence supported his conviction; (2) that the
circuit court abused its discretion in increasing his bail
pending appeal; and (3) that the circuit court abused its
discretion in sentencing him to jail for a first offense. Upon
reviewing the record, we conclude (1) that the circuit court
plainly erred in failing to instruct the jury on mutual affray;
and (2) that the district court abused its discretion in
increasing Henley’s bail from $200.00 to $2,000.00 cash only
pending appeal. We do not reach the issue of whether the
circuit court abused its discretion in sentencing Henley to jail
for a first offense. Because there was sufficient evidence for
the conviction, this matter is remanded to the circuit court for
further proceedings consistent with this opinion.
II. Background
A. Proceedings in Circuit Court
1. Complaint and Jury Demand
Henley was charged by Complaint with “intentionally,
knowingly, or recklessly caus[ing] bodily injury to Gary K.
Massey, thereby committing the offense of Assault in the Third
Degree, in violation of Section 707-712(1)(a) of the Hawaii
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Revised Statutes.”2 He was represented by court-appointed
counsel. Henley demanded a jury trial and was bound over to the
circuit court.
2. Jury Trial
A two-day jury trial took place. The State called two
witnesses: the complaining witness, Gary Massey (“Massey”), and
a police officer who responded to the scene of the alleged
assault. Henley called one witness, his friend Kalanikapu Copp
(“Copp”), who was with him at the time of the alleged assault.
Henley also testified in his own defense.
a. Testimony of Gary Massey
The complaining witness, Massey, testified that he was 68
years old and worked as a security officer for the Colony Surf
Hotel on the evening of November 9, 2012. He arrived at 10:30
p.m. to relieve another security officer, who told him that
there was a party in Room 205 that generated two noise
complaints and reports of graffiti in the stairwell. The other
security officer had called the Honolulu Police Department.
When police officers arrived, they and Massey went to Room 205
and dispersed the party guests. The police officers left, and
Massey went to the 19th floor and walked down the stairwell, as
part of his normal duties. Around 12:30 a.m., he heard more
2
Hawaii Revised Statutes (“HRS”) § 707-712(1)(a) (2014) provides, as it
did at the time of the alleged offense, “A person commits the offense of
assault in the third degree if the person . . . [i]ntentionally, knowingly,
or recklessly causes bodily injury to another person[.]”
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party noise coming from Room 205 and called the police again.
Together, they cleared the room once more.
Massey testified that an officer told him to escort two
individuals off the property. Those individuals were Henley,
who had a guitar strapped onto his back, and Copp, Henley’s
friend. As the two were descending the stairs, they called
Massey a “fucking faggot haole” and told him to “go back to
[his] gay country.” According to Massey, as Copp exited the
stairwell, Massey held the door open, and Henley head-butted
Massey above the right eye, causing Massey to feel pain. Massey
fell backwards and hit the ground, while Henley threw punches at
him. When Massey was on the ground, Henley stood over him with
a foot on either side of him; Massey then reached up and grabbed
Henley’s left testicle and squeezed it. Henley screamed and
jumped off of Massey. At some point during this encounter,
Massey was kicked or punched in the left ear.
Henley and Copp then ran into Kapiolani Park, and Massey
alerted the police officers, who were still upstairs on the
second floor, that he had been assaulted. The police officers
drove through Kapiolani Park and located Henley and Copp.
Massey then positively identified Henley as his assailant. On
cross-examination, Massey admitted that Henley and Copp were
voluntarily leaving the premises when Massey was following them,
and that Massey could have remained behind them at a distance.
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b. Testimony of Officer Nicholas Muna
The State also called Honolulu Police Department patrol
officer, Nicholas Muna, who testified that he was called to Room
205 twice on the night of November 9, 2012 to disperse a loud
party. After the second call, as he was talking to the renter
of Room 205, he heard a yell for help coming from downstairs.
He ran downstairs to find the security officer flagging him down
and pointing towards Kapiolani Park, saying, “[T]hose two guys,
they just attacked me.” Officer Muna got into his patrol car
and drove through the park. When two males ran out from behind
a tree, Muna detained them.
Later, Muna spoke with Massey, who related that he escorted
the two males off the property when they started arguing with
him. The argument escalated, and Massey was punched and head-
butted. Muna testified that Massey told him that after Massey
fell onto his back, he was punched again in the left ear.
Massey reported pain to his face, and Muna observed a small cut
above Massey’s left ear. On cross-examination, Muna testified
that he would never direct Massey to escort people off the
property because he would not want to be responsible if Massey
were injured.
c. Testimony of Kalanikapu Copp
Henley called Copp, his classmate and friend of two or
three years, to testify in his defense. Copp testified that, on
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the night in question, he and Henley were at the Colony Surf
Hotel for a friend’s birthday party. They were taking turns
playing Henley’s guitar at the party. The first time the party
was dispersed, Massey and four or five police officers showed
up. Copp stayed behind to use the bathroom, and Henley left the
party. Copp testified that the police officers gave him
permission to stay, and Copp called Henley to return to Room
205. Henley returned, accompanied by a few other people. They
were playing music on the speakers when Massey and the police
officers returned and told Henley and Copp to leave.
Copp and Henley exited Room 205 and passed Massey, who had
a “real smug look on his face.” Henley told Massey, “I bet you
feel real big right now just bossing us around,” and Copp told
Massey “F you.” Copp’s comment “kind of set [Massey] off,” so
Massey followed them as they were descending the stairwell and
called them “hippies” and “faggots.” Copp went through the
doorway at the bottom of the stairs first. He turned back and
saw Massey grab Henley “on the arm and . . . kind of jerk him
forward.” Henley then turned around and pushed Massey in the
solar plexus. Massey fell. When he got up, he told Henley,
“[Y]ou’re going to get it now,” and tried to tackle Henley.
Massey tried to put Henley in an “arm bar or a choke.” At this
point, Copp punched Massey once, but Massey did not let Henley
go, so Copp jabbed Massey three more times. Copp also saw
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Massey grab Henley’s testicles. Massey let go of Henley but was
still clinging onto Henley’s shirt as Henley attempted to leave.
Copp “karate chopped” Massey’s hand, causing Massey to finally
let go of Henley.
Copp and Henley then ran into Kapiolani Park. Massey
continued to pursue them, so Copp gave Massey “a little push
kick just right to his midsection[.]” Copp and Henley hid from
Massey in a banyan tree and were ultimately discovered by the
police. Copp testified that he did not see Henley head-butt
Massey, although he did see Henley push Massey in the solar
plexus. Copp testified that he was the one who punched Massey,
probably causing the scratch to Massey’s left ear.
d. Testimony of Jonathan Henley
Henley took the stand. He testified that he worked in
telecommunications. According to Henley, he had just turned 19
on November 8, 2012, and he was at the Colony Surf Hotel to
celebrate multiple birthdays, including his own. He had brought
along his guitar that he constantly carries around with him.
Henley stated that there was no alcohol at the get-together. He
and Copp were planning on sleeping over. After arriving at the
party, they “jammed” for at least two hours. The police and a
security officer ended the party, and Henley left by himself.
He saw the security officer arguing with a large group of
people. Copp then called Henley and told him they had
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permission to return to Room 205 and stay the night. Henley
returned with five others, and they played music on the stereo
system before the police and security officer returned. The
security officer accused Copp and Henley of “br[inging] the
party back, . . . start[ing] up the music, . . . [and] hanging
off the [lanai.]” Copp and Henley were directed to leave.
Copp and Massey started arguing, and Massey followed Copp
and Henley out of the room and to the stairwell. Massey called
Copp and Henley “faggots,” “hippies,” “punks,” and “ignorant
children,” and Copp told Massey to “fuck off.” Copp exited the
door at the bottom of the stairs, and Henley was about to exit
when Massey “grabbed [Henley] from the back but like on the
upper arm.” Henley “just react[ed]” and “shoved [Massey]
away[.]” Massey let go but then tried to tackle Henley. Massey
did not succeed, so he then “bailed towards the ground and
grabbed [Henley’s] balls.” Copp saw what was happening, so he
hit Massey a few times until Massey released Henley.
Copp and Henley were leaving the property when they heard
Massey yelling for help. They ran towards a tree in order to
talk and regroup. There they were apprehended by the police.
Henley emphasized in his testimony that he did not head-butt or
hit Massey, but that he did push Massey in the chest. After
Henley’s testimony, the defense rested.
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3. Jury Instructions
The State requested a jury instruction based on the Hawaii
Standard Jury Instructions Criminal (“HAWJIC”) 9.21 jury
instruction on Assault in the Third Degree. The requested
instruction stated the following:
In the Complaint, the Defendant, Jonathan Henley, is
charged with the offense of Assault in the Third Degree.
A person commits the offense of Assault in the Third
Degree if he intentionally, knowingly, or recklessly causes
bodily injury to another person.
There are two material elements of the offense of
Assault in the Third Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
1. That, on or about November 10, 2012 in the City
and County of Honolulu, State of Hawaii, the Defendant
caused bodily injury to another person; and
2. That the Defendant did so intentionally,
knowingly, or recklessly.
The requested instruction was eventually withdrawn in favor of
the submission of an almost identically worded “Court’s General
Instruction No. 23,” by agreement of the parties. The Court’s
General Instruction No. 23 simply identified the person bodily
injured as “Gary K. Massey.” No instruction on mutual affray
was given to the jury; that standard jury instruction (HAWJIC
9.21A) states the following:
If you find that the prosecution has proven the offense of
Assault in the Third Degree beyond a reasonable doubt, then
you must also determine whether the prosecution has proven
beyond a reasonable doubt that the fight or scuffle was not
entered into by mutual consent. This determination must be
unanimous and is to be indicated by answering “Yes” or “No”
on a special interrogatory which will be provided to you.
No special interrogatory on mutual affray (HAWJIC 9.21C) was
given to the jury, either.
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4. Verdict and Sentencing
The jury found Henley guilty as charged. Henley’s
sentencing hearing was held the day after trial concluded. The
State sought a sentence of 30 days’ imprisonment, one year
probation, and anger management treatment. Defense counsel
sought a sentence of probation because Henley had no prior
criminal record. He counter-argued that there was “no rational
basis in the evidence that [Henley] has any anger management
problems.” The circuit court then questioned defense counsel as
to why probation would be necessary, if a probation officer
would have “nothing to supervise,” given that there did not seem
to be a need to impose any special conditions involving drug,
alcohol, or mental health treatment; or anger management.
Defense counsel responded that a probation officer would still
monitor whether Henley had further contacts with law enforcement
or was working or in school.
At that point, defense counsel remarked that he noticed
that the court had “three individuals from Public Safety in the
courtroom[.]” That observation prompted defense counsel to
point out that, under HRS § 804-4(a), “the right to bail shall
continue after conviction of a misdemeanor”; defense counsel
argued that Henley’s $200.00 bail must continue. Defense
counsel stated that he intended to appeal Henley’s conviction.
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The State then asserted that Henley’s bail should be
increased to $11,000.00 pending appeal. The State reasoned,
“[Henley] is not from here. Appeals take a long time. . . I
don’t know what his living situation is now, however, there’s
obviously the possibility over on the course of a lengthy appeal
that a defendant may not --” Although the State did not finish
its sentence, the circuit court interrupted, “It’s happened
quite often.” The State responded, “Exactly.” The State and
the circuit court seemed to imply that Henley would likely leave
Hawaii during the course of his appeal. Defense counsel
corrected the implication, stating
[T]hat’s not true. . . [Henley] and his father moved here
from Arkansas. . . [H]is father started his construction
business over here so that – that’s where they live now,
this is where they remain. And this is where he will be
over the next several years . . . . [R]ight now the only
indication is his father says they intend to stay here.
The State insisted that Henley’s $200.00 bail be increased
pending appeal. The circuit court disagreed with the State’s
assertion that “bail can be increased,” stating, “No, but the
bail can be adjusted to the risk. He’s now a convicted
misdemeanant and the risk of flight is very high in these
cases.” Defense counsel again argued that HRS § 804-4 supported
his contention that the circuit court could not increase
Henley’s bail; the circuit court responded, “Okay. I know
you’re wrong on that one, but okay.” Accordingly, defense
counsel argued that if the circuit court was going to increase
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bail, he asked it to limit the increase to $2,000.00, the
maximum fine for a misdemeanor, “because [Henley’s] father can
post the bond today.” The court remarked that Henley’s father’s
ability to pay the bond was “useful information.”
At this point, Henley was allowed his right to allocution.
Henley stated that he was focused on school and work and
“get[ting] his life together[.]” He stated that was trying to
avoid jail time, which would cause him to lose his job, which
would further hamper his ability to save for school.
After defense counsel concluded his sentencing arguments,
the circuit court sentenced Henley to 30 days’ imprisonment,
with credit for any time served. Although the circuit court
stayed mittimus pending Henley’s appeal, it also increased
Henley’s bail from $200.00 to $2,000.00 cash only, with no
further hearing on bail. Therefore, Henley was taken into
custody and not released until his father paid the $2,000.00
cash only bail three days later.3
B. ICA Appeal
On appeal, Henley raised the following points of error:
(1) There was insufficient evidence to convict [Henley] of
Assault in the Third Degree.
. . . .
(2) The trial court abused its discretion in raising
[Henley’]s bail pending appeal in a misdemeanor case.
. . . .
3
We note that the procedure in this case was unusual, as sentencing
should precede any discussion of bail pending appeal. Procedurally, trial
courts should address sentencing before addressing any issues regarding bail
on appeal.
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(3) The trial court abused its discretion in sentencing
[Henley] to 30 days jail as a first time offender.
In a summary disposition order (“SDO”), the ICA affirmed the
circuit court’s judgment of conviction and sentence. State v.
Henley, CAAP-13-0005595 (App. Jan. 29, 2015) (SDO) at 1. As to
the first point of error, the ICA held that sufficient evidence
supported Henley’s conviction, based on the jury’s apparent
determination that Massey’s testimony (that Henley head-butted
him without provocation) was more credible than Copp’s and
Henley’s. Henley, SDO at 3.
The ICA concluded that the second point of error was
“without merit.” Id. The ICA stated that Henley “plainly
misreads HRS § 804-4” in arguing that the trial court is
prohibited from changing the amount of bail after a defendant is
convicted of a misdemeanor. Id. The ICA reasoned
A defendant who is pending trial and is clothed with the
presumption of innocence is in a different position than a
defendant who has been adjudged guilty of a crime. A
defendant who is pending sentencing is also in a different
position than a defendant who has been sentenced to a term
of incarceration. In addition, evidence adduced during the
trial or sentencing may affect the trial court’s evaluation
of the appropriate bail amount and conditions for a
defendant. We conclude that the Circuit Court did not
abuse its discretion in raising Henley’s bail from $200 to
$2000 (cash only) pending his appeal.
Henley, SDO at 4. To support its conclusion, the ICA also cited
to HRS § 804-9 (2014) for the following language: “The amount
of bail rests in the discretion of the justice or judge. . . .”;
and HRS § 804-6 (2014) for the following language (with emphasis
added): “Unless otherwise ordered by the court the bail bond
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given by any defendant prior to the defendant’s conviction,
shall, in cases where bail after conviction is permitted either
absolutely or by order of the court, be continued as the bail of
the defendant after conviction, and until the final
determination of any subsequent proceedings in the cause.” Id.
As to the third point of error, the ICA noted that the
circuit court is vested “with wide discretion” in imposing
sentence, and that 30 days’ incarceration was not an abuse of
discretion, given the evidence adduced at trial that “Henley
assaulted Massey, a sixty-eight-year-old man, by head-butting
Massey above the right eye and . . . thr[owing] punches at
Massey.” Id.
III. Standards of Review
A. Unrequested Jury Instructions
As a general rule, jury instructions to which no objection
has been made at trial will be reviewed only for plain
error. An error will be deemed plain error if the
substantial rights of the defendant have been affected
adversely. Additionally, 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. Kikuta, 125 Hawaii 78, 95, 253 P.3d 639, 656 (2011)
(citing State v. Nichols, 111 Hawaii 327, 334, 141 P.3d 974, 981
(2006)) (quotations marks and brackets omitted).
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B. Plain Error
“Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of
the court.” Hawaii Rules of Penal Procedure (“HRPP”) Rule 52(b)
(1977).
C. Bail
“It is settled that the determination of the amount of bail
rests peculiarly within the discretion of the trial court. An
appellate court should not disturb or interfere with the
exercise of such discretion, unless it is clearly abused.”
Sakamoto v. Won Bae Chang, 56 Haw. 447, 451, 539 P.2d 1197, 1200
(1975) (citation omitted).
D. Sentencing
This court has stated:
[a] sentencing judge generally has broad discretion
in imposing a sentence. The applicable standard of
review for sentencing or resentencing matters is
whether the court committed plain and manifest abuse
of discretion in its decision. Factors which
indicate a plain and manifest abuse of discretion are
arbitrary or capricious action by the judge and a
rigid refusal to consider the defendant’s
contentions. And, generally, to constitute an abuse
it must appear that the court clearly exceeded the
bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment to
the litigant.
State v. Kong, 131 Hawaii 94, 101, 315 P.3d 720, 727 (2013)
(quoting State v. Rivera, 106 Hawaii 146, 154-55, 102 P.3d 1044,
1052-53 (2004)).
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IV. Discussion
On certiorari, Henley raises the following questions
presented: whether “(1) there was insufficient evidence to
support his conviction; (2) the Circuit Court abused its
discretion in raising his bail pending appeal; and (3) the
Circuit Court abused its discretion in sentencing him to jail
for a first offense.” As a preliminary matter, we agree with
the ICA that the standard for appellate review compels the
conclusion that sufficient evidence supported Henley’s
conviction as the jury apparently credited Massey’s testimony,
and credibility determinations are for the trier of fact.
Henley, SDO at 3. We accepted certiorari in this case, however,
because the circuit court plainly erred in failing to instruct
the jury on mutual affray, and we cannot say that this error is
harmless. Therefore, we vacate the ICA’s Judgment on Appeal,
which affirmed the circuit court’s judgment of conviction and
sentence, and remand this case for further proceedings.
Although a retrial obviates the need for this court to address
the second and third issues, we address the second issue to
provide the circuit court with guidance on remand. We do not
address the third issue.
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A. The Circuit Court Plainly Erred in Failing to Instruct
the Jury on Mutual Affray
Although neither the State nor Henley has raised the issue,
we note that the circuit court in this case was required to
instruct the jury on mutual affray. “[I]n our judicial system,
the trial courts, not parties, have the duty and ultimate
responsibility to insure [sic] that juries are properly
instructed on issues of criminal liability.” State v. Adviento,
132 Hawaii 123, 137, 319 P.3d 1131, 1145 (2014)(citations
omitted); see also Nichols, 111 Hawaii at 339, 141 P.3d at 986
(“[I]t is the duty of the trial court to see that the jury is
properly instructed.”). HRPP Rule 30, titled “Instructions to
the Jury,” also reflects that ultimate responsibility for
instructing the jury lies with the trial court. See, e.g.,
subsection (c), which authorizes the trial court to refuse,
approve, or modify requested instructions; and subsection (d),
which authorizes the trial court to revise and/or combine
instructions that were approved and/or not objected to, and
which authorizes the trial court to prepare its own instructions
if no written requests for instructions are made.
Henley was charged with Assault in the Third Degree under
HRS § 707-712(1)(a), which states, “A person commits the offense
of assault in the third degree if the person . . .
[i]ntentionally, knowingly, or recklessly causes bodily injury
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to another person[.]” HRS § 707-712(2) goes on to state,
“Assault in the third degree is a misdemeanor unless committed
in a fight or scuffle entered into by mutual consent, in which
case it is a petty misdemeanor.” “Mutual affray” is a
“mitigating defense” to Assault in the Third Degree, reducing
the offense from a misdemeanor to a petty misdemeanor. Kikuta,
125 Hawaii at 95-96, 253 P.3d at 656-57.
The circuit court, by agreement of the parties, gave the
jury the standard HAWJIC 9.21 jury instruction, which covers the
elements of Assault in the Third Degree enumerated in HRS
§ 707-712(1)(a). The circuit court did not give the jury the
standard HAWJIC 9.21A jury instruction on mutual affray, which
tracks the language of HRS § 707-712(2), or the standard HAWJIC
9.21C special interrogatory regarding mutual affray. We held in
Kikuta that a trial court “must submit a mutual affray
instruction to the jury where there is any evidence in the
record that the injury was inflicted during the course of a
fight or scuffle entered into by mutual consent. . . .” Kikuta,
125 Hawaii at 96, 253 P.3d at 657 (emphasis added). The notes
to HAWJIC 9.21A contain the same recommendation: “When an
Assault in the Third Degree instruction [HAWJIC 9.21] is
submitted to the jury, the court must also submit a mutual
affray instruction [HAWJIC 9.21A] and special interrogatory
[HAWJIC 9.21C] where there is any evidence that the fight or
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scuffle was entered into by mutual consent.” We have previously
found this recommendation to be “prudent,” notwithstanding the
introduction to the HAWJIC, which states, “Nothing herein
contained shall be construed as an approval by the Supreme Court
of the State of Hawaii . . . of the substance of any of said
instructions.” Kikuta, 125 Hawaii at 96 n.12, 253 P.3d at 657
n.12.
“[M]utual affray requires both parties to have approved of,
or agreed to, a fight or scuffle, whether expressly or by
conduct.” Id. In this case, there was evidence that Massey was
injured “during the course of a fight or scuffle entered into by
mutual consent. . . .” Kikuta, 125 Hawaii at 96, 253 P.3d at
657. First, the testimony may have suggested that Massey’s
decision to follow Copp and Henley caused an already tense
situation to deteriorate. Massey admitted on cross-examination
that Henley and Copp were voluntarily leaving the premises when
Massey decided to follow them, and that Massey could have
remained behind them at a distance. There was evidence that
Copp, Henley, and Massey had already engaged in a few rounds of
insults and name-calling. Officer Muna testified that Massey
told him the verbal argument escalated as they all headed down
the stairs.
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Second, Copp and Henley testified that Massey initiated
aggressive physical contact and attempted several fighting
maneuvers upon Henley. Both testified that Massey grabbed
Henley’s arm and jerked him forward as Henley was exiting the
stairwell. It was at this point that Henley shoved Massey away.
Undeterred, Massey stated, “[Y]ou’re going to get it now,”
according to Copp’s testimony. Then, Massey tried to “tackle”
Henley and put him in an “arm bar or choke.”
Third, there was evidence to suggest that Massey persisted
in his attempts to hurt Henley, even after Henley disengaged
from the fight. According to both Copp and Henley, when Massey
was unable to tackle Henley or get him into an armbar or
chokehold, Massey grabbed Henley’s testicles. Even after Henley
sprang off of Massey, Copp testified that Massey “was still
clinging onto Henley’s shirt as Henley attempted to leave,”
which caused Copp to “karate chop” Massey’s hand.
This testimony provided the evidence in the record that
Massey’s “injury was inflicted during the course of a fight or
scuffle entered into by mutual consent. . . .” Kikuta, 125
Hawaii at 96, 253 P.3d at 657 (emphasis added). Consequently,
the circuit court should have given the jury an instruction and
special interrogatory on mutual affray; the circuit court
plainly erred in failing to do so.
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Further, we cannot say that the omission of the mutual
affray instruction was harmless beyond a reasonable doubt, as it
is possible, on this record, that given a choice between
convicting Henley on misdemeanor Third Degree Assault and the
mitigated offense of petty misdemeanor assault, the jury could
have convicted Henley on the latter. See Kikuta, 125 Hawaii at
97, 253 P.3d at 658 (“Inasmuch as it is the duty of the trial
court to properly instruct the jury, the judgment of conviction
must be vacated, without regard to whether timely objection was
made, because there is a reasonable possibility that the error
contributed to [the] conviction for misdemeanor assault in the
third degree.”) (citation and quotation marks omitted).
Accordingly, the ICA’s judgment on appeal, which affirmed
Henley’s conviction, is vacated, and this case is remanded to
the circuit court for a new trial.
B. The Circuit Court Abused its Discretion in Increasing
Henley’s Bail from $200.00 to $2,000.00 Cash Only.
On certiorari, Henley argues that that the circuit court
abused its discretion in increasing his bail pending appeal. We
agree.
Article I, section 12 of the Constitution of the State of
Hawaii provides, “Excessive bail shall not be required. . . .
The court may dispense with bail if reasonably satisfied that
the defendant . . . will appear when directed, except for a
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defendant charged with an offense punishable by life
imprisonment.” Under HRS § 804-9, “[t]he amount of bail . . .
should be so determined as to not suffer the wealthy to escape
by the payment of a pecuniary penalty, nor to render the
privilege useless to the poor.” Further, under that statute,
“the officer letting to bail should consider the punishment to
be inflicted on conviction, and the pecuniary circumstances of
the party accused.” In setting bail, we have held that the
determination of bail under HRS § 804-9 must be made “on an
individualized basis. . . .” Pelekai, 75 Hawaii at 366, 861
P.2d at 1210. In Sakamoto, 56 Haw. at 451, 539 P.2d at 1200,
this court noted that bail is to be fixed in a reasonable
amount, considering the financial status of the defendant and
the punishment to be imposed upon him on conviction.
The circuit court abused its discretion in this case by not
tailoring the bail to Henley’s individual circumstances.
The police initially set Henley’s $200.00 bail pursuant to the
chief of police’s authority under HRS § 804-5 (2014) (“[W]here
the punishment for the offense charged may not exceed two years’
imprisonment with or without a fine, . . . the chief of police
or any person name by the chief of police . . . may admit the
accused person to bail.”). Apparently, $200.00 bail was seen as
an appropriate amount of bail under the circumstances, as
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neither the district nor circuit court judges that handled
Henley’s case changed the amount.
As this court recently noted in State v. Kiese, 126 Hawaii
494, 510, 273 P.3d 1180, 1196 (2012), HRS § 804-4 provides that
“[t]he right to bail shall continue after conviction of a
misdemeanor,” and our case law holds “an accused misdemeanant
. . . is entitled to bail as a matter of right after conviction
and pending appellate review.” (Citing State v. Ortiz, 74 Haw.
343, 356, 845 P.2d 547, 553 (1993)). Although Henley’s right to
bail continued post-conviction, the circuit court had the
authority to change the amount of bail post-conviction pursuant
to its discretionary authority under HRS ' 804-9. In exercising
its discretion, it was required by HRS § 804-9, governing the
amount of bail, to “consider the punishment to be inflicted on
conviction, and the pecuniary circumstances of the party
accused.”
First, regarding the “punishment to be inflicted,” bail was
initially set at $200.00 when Henley was facing the possibility
of one year in jail. The circuit court ultimately sentenced
Henley to 30 days’ imprisonment. Despite that, the circuit
court multiplied the amount of bail tenfold. Moreover, that the
increased bail amount was to be paid in cash only was equivalent
to increasing bail up to $20,000.00, because a bond normally may
be obtained for five to fifteen percent of the bail amount in
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Hawaii. National Conference of State Legislatures, Bail Bond
Agent Business Practices, available at
http://www.ncsl.org/research/civil-and-criminal-justice/bail-
bond-agent-business-practices.aspx (last visited Dec. 15, 2015).
Because the issue was not raised, we do not address whether
“cash only” bail is permissible under the law, but this case
highlights the unfairness in conditioning bail on payment in
cash only.
Second, regarding Henley’s “pecuniary circumstances,”
Henley was 19 years old. Although he was apparently working in
telecommunications, he was determined to be indigent and was
represented by court-appointed counsel throughout his trial.
The circuit court did not find any specific facts about Henley’s
individual circumstances that would have justified an increase
in bail. The State and the circuit court seemed to assume that
a bail increase was necessary because Henley was a flight risk.
This assumption was based merely on the fact, however, that
Henley and his father had apparently recently moved to Hawaii.
In other words, the increase of bail was premised upon recency
of arrival and not risk of flight. Defense counsel interjected
that Henley and his father had moved to Hawaii from Arkansas,
that his father started a construction business in Hawaii, and
that the family intended to stay. Nevertheless, the circuit
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court persisted in raising Henley’s bail simply because Henley
was a recent arrival. This approach overtly discriminates
against recent arrivals, with no indication as to the length of
time one must live in this state such that bail will not be
elevated on that basis.
The increase in bail was also directly contradicted by the
court’s comments. The circuit court refused to place defendant
on probation, despite defense counsel’s request. The circuit
court did not believe anger management, drug and/or alcohol
treatment, or mental health treatment was appropriate. That
Henley had no other apparent problems reaffirms that the
increase in bail was simply based on the fact of conviction and
not determined on an individualized basis.
Rather, the circuit court apparently increased Henley’s
bail amount based on Henley’s father’s ability to pay. Defense
counsel argued at sentencing that Henley’s increased bail should
be limited to $2,000.00, the maximum fine for a misdemeanor,
“because [Henley’s] father can post the bond today.” Defense
counsel represented that Henley’s father could post the bond
(i.e., $100.00 to 350.00, or five to fifteen percent of the
proposed bail amount). The circuit court remarked that that was
“useful information.” In setting bail at $2,000.00 cash only,
the circuit court actually set bail even beyond what Henley’s
father stated he could pay that day. Indeed, Henley’s father
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was not able to pay the $2,000.00 cash only bail until three
days later.
There is also evidence on the record that the circuit court
used the maximum amount of the fine ($2,000.00) to determine the
amount of bail, as that is what defense counsel requested as a
last resort. Lacking any other justification based on Henley’s
individual circumstances, this method of increasing bail to
match the maximum fine is improper. Instead, at its core, the
bail increase was based simply on the fact that defendant had
been convicted, sentenced to jail, and had allegedly “recently”
arrived in Hawaii, despite his family having settled here. This
is clearly contrary to the intent of our bail statutes with
respect to misdemeanants. In short, the circuit court clearly
abused its discretion in increasing Henley’s bail from $200.00
to $2,000.00 cash only.
V. Conclusion
The circuit court plainly erred in failing to instruct the
jury on mutual affray. Based on this error, Henley’s judgment
of conviction for Assault in the Third Degree must be vacated.
For future guidance, however, we also note that the circuit
court abused its discretion in increasing Henley’s $200.00 bail
to $2,000.00 cash only bail pending appeal. Therefore, the
ICA’s Judgment on Appeal, is vacated, as is the circuit court’s
judgment of conviction and sentence. This case is remanded to
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the circuit court for further proceedings consistent with this
opinion.
Shawn A. Luiz /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Loren J. Thomas
for respondent /s/ Michael D. Wilson
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