State v. Corder ( 2010 )

LAW L|BRAR``Y
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28877
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
STATE oF HAWAI‘I, Plaintiff-Appellee, v.
LAWRENCE CORDER, Defendant-Appellant
93 =‘9 HV 52 HVHB£§Z
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(FC-CRIMINAL NOS. 07-1-lO80; 06-1-20l2; and 07-1-lO48)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Lawrence Corder
from Counts II and III of the Judgment of Conviction and Sentence
(Corder) appeals
(Conviction and Sentence)F for two offenses of Violation of an
Order for Protection under Hawaii Revised Statutes (HRS) § 586-ll
entered on November 29, 2007, by the Family Court of the
in FC-CR No.
this court entered a Summary
(2006),
First Circuit (Family Court)
On March 3l, 2009,
Disposition Order vacating the Conviction and Sentence on the
07-1-1030.€/
grounds that:
The Family Court abused its discretion in denying Corder's
alternative request for a bill of particulars because the
Family Court failed to consider whether, under the
the bill of particulars was necessary to
circumstances,
Corder's preparation for trial and to prevent him from being
prejudicially surprised as to what acts he allegedly
committed in violation of the Extended Order.
2009 and an application
Judgment was entered on May 2l,
On November l9, 2009,
for writ of certiorari was timely filed.
2007, a jury found Corder not guilty as to Count I
C0unt I charged Corder
l/ On October l2,
but on a
and guilty as to Counts II and III of the complaint.
with committing the same offense alleged in Counts ll and III,
Corder was acquitted of the charges brought in FC-Criminal
different date.
NOS. 06-1-2012 and 07-1-1048.
2/
The Honorable Rhonda A. Nishimura presided.
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court erred in concluding that the Family Court abused its
discretion in denying Corder's request for a bill of particulars.
The supreme court reversed the decision of this court and
remanded the case to this court to address the remaining four
points of error raised by Corder in his opening brief.
In the remaining four points of error, Corder contends:
[l] The trial court erred in denying Defendant's
requested jury instruction re: ambiguous orders;
[2] The trial court erred in denying Defendant's
motion for judgment notwithstanding verdict with respect to
Count III;
[3] The trial court erred in sentencing Defendant
without allowing him an opportunity to address the court as
required by H.R.P.P., Rule 32(a); and
[4] The sentence is illegal.
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, we
resolve Corder's points of error as follows:
(l) Regarding the jury instructions, Corder argues:
[I]n the absence of an election by the prosecution
specifying exactly what conduct was allegedly wrongful, if
the jury was being allowed to interpret the meaning of the
order, they should have properly been instructed that any
ambiguity must be resolved in Mr. Corder's favor. This
should have been done, even if the prosecutor had made an
election as it was relevant to the issue of intent. Mr.
Corder should not have been found guilty if he was being
charged with something that was ambiguously prohibited by
the order.
(Citations omitted.)
Corder does not otherwise argue that the jury was
improperly instructed on the issue of intent or the prosecution's
burden of proof in this case. The requested jury instruction,
entitled Defendant's Supplemental Instruction No. l, read:
The law requires that a [court order] state with reasonable
clarity the act it proscribes and provide fixed standards
for adjudging guilt[, or the order is void for vagueness].
[Orders] must give a person of ordinary intelligence a
reasonable opportunity to know what conduct is prohibited so
that he or she may choose between lawful and unlawful
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conduct. State v. Tripp, 71 Haw. 479, 482, 795 P.2d 280,
282 (l990).
If you find that the order for protection is ambiguous, you
must resolve any such ambiguity in favor of Mr. Corder.
STATE V. ALULI, 78 Haw. 3l7, 321 (l995); STATE V. BUCH, 83
Haw. 308, 327 (l996); STATE V. MAHOE, 88 Haw. l8l, 184 ``
(l998); STATE V. BAUTISTA, 86 HaW 207, 210 (l997); STATE v.
COELHO, lO7 HaW. 273, 277 (App. 2005)
Corder argued, generally, that the Extended Order was
ambiguous and that this instruction was necessary to provide him
with due process of law. The DPA responded that an Arceo
instruction would be appropriate instead of Defendant's
Supplemental Instruction NO. l, that the Extended Order was
clear, and that the jurors could interpret the Extended Order
themselves. The Family Court denied Corder's requested jury
instruction, stating:
the redacted protective order [] states what it
states. As to how the jury interprets, that's for the jury
but also for the attorneys. If they wish to persuade the
jury to adopt their, uh, respective interpretations, it's up
to the attorneys in their closing argument. Tie it in to
the particular facts. And also the requisite state of mind.
(Format altered.)
The Family Court approved the Arceo instruction, which
was given by agreement, and which stated the following:
COURT'S GENERAL INSTRUCTION NO. 35
8.02 UNANIMITY INSTRUCTION
The law allows the introduction of evidence for the
purpose of showing that there is more than one act upon
which proof of an element of an offense may be based. In
order for the prosecution to prove an element, all jurors
must unanimously agree that the same act has been proven
beyond a reasonable doubt.
We reject Corder's argument that the extended order for
protection was ambiguous, Moreover, the cases cited by Corder
address the issue of statutory construction, not purportedly
ambiguous court orders. Corder has failed to provide any
persuasive authority to support the requested instruction, The
Family Court's Arceo instruction properly instructed the jury on
the necessity of reaching a unanimous verdict on the same
underlying act. Accordingly, we conclude that the omission of
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the requested jury instruction did not render the jury
instructions prejudicially insufficient, erroneous, inconsistent,
or misleading. See State v. Nichols, lll Hawafi 327, 334, l4l
P.3d 974, 981 (2006).
(2) Corder argues that there was no basis for finding
a violation as to the younger child, and also no violation as to
the older child, who had the discretion to make contact with
Corder and had testified that contact was made by the older
child's initiation, except for the initial contact. Corder
argues that the school should be considered a neutral location
under the extended order for protection and that paragraph 4 of
the extended order, which prohibits Corder from coming within lOO
feet of mother, should apply to the children. Corder claims that
the older child did not testify that he came within lOO feet of
the younger child at any time on January l9, 2007. This is
inaccurate because the older child testified that Corder came
within 30 to 40 feet of the younger child. In his reply brief,
Corder argues that on Defendant's Exhibit D-l, the older child
marked the locations of the younger child and Corder where they
stood nearest each other. Corder argues that this distance was
125 feet away, thus, more than lOO feet away.
Regardless of how many feet Corder came within the two
children, the record on appeal shows that the older child told
Corder to leave and Corder refused. Also, the record contains
substantial evidence of Corder's proximity to the younger child's
school, to the older child, and to the younger child, sufficient
to support a finding of impermissible contact in violation of the
Extended Order.
Therefore, viewing the evidence in the light most
favorable to the prosecution, we conclude that the Family Court
did not err in denying Corder's Motion for JNOV as to Count III.
(3) In the opening brief, Corder argues that his
statement to the Family Court at the initial sentencing hearing
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held on October 18, 2007, could not be considered a fair
opportunity to be heard because it was made before the pre-
sentence investigation report was filed.W In the reply brief,
Corder further argues that at the continued sentencing hearing
held on November l9, 2007, he was not given a fair opportunity to
address the issue of his disposition or mitigation of punishment
because he was not invited to make his statement until after the
Family Court first announced the disposition.
"Allocution is the defendant's right to speak before
sentence is imposed.“ 'State v. Chow, 77 Hawafi 241, 246, 883
P.2d 663, 668 (App. l994) (citation, brackets, and internal
quotation marks omitted). The right of allocution is a right
guaranteed under the due process clause, article I, section 5, of
the Constitution of the State of HawaiT~ State v. Schaefer, 117
HaWafi 490, 498, 184 P.3d 805, 813 (App. 2008). HRS § 706-604
(l993 & Supp. 2006) states in relevant part:
§ 706-604 Opportunity to be heard with respect to
sentence; notice of pre-sentence report; opportunity to
controvert or supplement; transmission of report to
department. (1) Before imposing sentence, the court shall
afford a fair opportunity to the defendant to be heard on
the issue of the defendant's disposition.
(2) The court shall furnish to the defendant or the
defendant's counsel and to the prosecuting attorney a copy
of the report of any pre-sentence diagnosis or
psychological, psychiatric, or other medical examination and
afford fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement them.
Under HRS § 706-604(2), the defendant has a right to controvert
or supplement the pre-sentence investigation report, but the
statute is silent as to whether the defendant's opportunity to be
heard must occur entirely after receiving the report. Instead,
HRS § 706-604(l) provides that the court shall afford the
defendant a fair opportunity to be heard "[b]efore imposing
sentence[.]"
5/ Corder waived the pre-sentence investigation report and objected
when the State requested that the court order a pre-sentence report.
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Hawafi Rules of Penal Procedure (HRPP) Rule 32(a)
further provides that "[b]efore suspending or imposing sentence,
the court shall address the defendant personally and afford a
fair opportunity to the defendant and defendant's counsel, if
any, to make a statement and present any information in
mitigation of punishment." At the initial sentencing hearing,
the Family Court gave Corder the opportunity to make a statement.
However, over Corder's objections, the court ordered the
preparation of a pre-sentence investigation report before
imposing Corder's sentence. Corder failed to identify any
reasons why making his statement prior to the filing of the pre-
sentence investigation report did not constitute, at least in
part, a fair opportunity to be heard before the Family Court
imposed its sentence.
In addition, at the continued sentencing hearing, as
the Family Court announced the granting of the State's motion for
consecutive sentence, Corder asked the court if he had the chance
to say something before he was sentenced. The Court's response
was: "Of course, you can." Although this portion of the
November 29j 2007 hearing transcript has several "unintelligible"
entries, it is clear that the Family Court invited Corder to
offer anything else that he wished to submit at that time.
Corder then gave a further uninterpreted statement to the court
that is memorialized in over seven transcript pages. After
Corder finished his statement, the court finished announcing4
Corder's sentence: "Forthwith. Credit for time." After the
court asked if the parties had anything further to add, the
hearing was concluded, and the Judgment of Conviction and
Sentence was then entered. On appeal, Corder has not alleged
that he was unable to fully address issues related to his
disposition or that the court failed to consider his statement
prior to the conclusion of the sentencing hearing and the entry
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of his sentence. Rather, Corder alleges that the timing of his
statements rendered his sentence constitutionally infirm.
Based on the record in this case, we conclude that the
Family Court provided Corder a fair opportunity to be heard on
the mitigation of his sentencing and the issues related to his
disposition, and that the Family Court did not violate Corder's
right of allocution. h
(4) In his opening brief, Corder challenges the two
consecutive terms of one-year imprisonment on the ground that HRS
§ 586-11(a)(1)(A) limits a jail sentence to 48 hours. However,
in his reply brief, Corder notes that he overlooked one of the
provisions in HRS § 586-11(a). He concedes to the legality of a
sentence of one-year imprisonment, pursuant to HRS § 586-ll(a),
which provides, "Nothing in this section shall be construed as
limiting the discretion of the judge to impose additional
sanctions authorized in sentencing for a misdemeanor offense."
Pursuant to HRS § 586-11(a), a person who knowingly or
intentionally violates the order for protection is guilty of a
misdemeanor. According to HRS § 706-663 (l993), after
considering the factors set forth in HRS §§ 706-606 and 706-
621,F the court may sentence a person who has been convicted of
a misdemeanor or a petty misdemeanor to imprisonment for a
definite term to be fixed by the court and not to exceed one
year.
For multiple sentences of imprisonment, HRS § 706-668.5
(1993) provides:
(1) If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of imprisonment is
imposed on a defendant who is already subject to an
unexpired term of imprisonment, the terms may run
concurrently or consecutively. Multiple terms of
imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the
terms run consecutively. Multiple terms of imprisonment
3/ HRS § 706-621 (1993) sets forth the factors to be considered in
imposing a term of probation.
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imposed at different times run consecutively unless the
court orders that the terms run concurrently.
(2) The court, in determining whether the terms
imposed are to be ordered to run concurrently or
consecutively, shall consider the factors set forth in
section 706-606.
In State v. Smith, this court stated, "[t]here is no
requirement, however, that the court expressly recite its
findings on the record for each of the factors set forth in HRS
§ 706-606." 106 HawaiW_365, 379, 105 P.3d 242, 256 (App. 2004)
(citation omitted). We further stated, "[a]bsent clear evidence
to the contrary, it is presumed that a sentencing court which has
received a pre-sentence report and conducted the required
sentencing hearing has considered all the factors set forth in
HRS § 706-606 before imposing concurrent or consecutive terms of
imprisonment." lQ; (citation omitted).
At the hearing on the State's sentencing motion, the
Family Court heard arguments from both parties and stated the
following prior to making its ruling:
The court has considered everything that has been
submitted to it including the PSI. The supplement.
(Unintelligible) letter and all arguments as well statements
made by [mother] and a -- others as well as the defendant
himself.
In terms of responding to a motion for consecutive
sentencing the court can also consider . . . charges against
the defendant to which we have the defendant on felony
probation but also more importantly we have him having been
sentenced sometime in -- in 2006 for protective order
violation charges.
In that for that matter he was given 365 days jail
with credit for time which involves the protective order
concerning himself and [mother] . . . .
Including in that was also the harassment by stalking
which also involved [mother].
So we have a situation where the history of the
defendant involving [mother] in terms of whether or not is
he a good candidate or poor prospect for rehabilitation the
court will find that defendant's prospect for rehabilitation
is poor.
In looking at the letters submitted to the court and
-- and listening to the arguments presented to the court the
court is also struck by the lack of remorse on the
defendant's part.
Therefore the court will grant the motion for
consecutive sentence with respect to FC-CR NO. 7-1-1080 for
Count 2 and Count 3.
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Here, Corder does not present any legal argument as to
how the Family Court abused its discretion, nor does he cite to
any part of the record demonstrating that the Family Court did
not consider the factors listed under HRS § 706-606. Finally, he
admits that he failed to object to the consecutive imprisonment
terms in the proceedings below.
Based on the record before us, we conclude that the
Family Court did not abuse its discretion by imposing two
consecutive terms of one-year imprisonment for Counts 11 and II1.
See State v. Reis, 115 Hawafi 79, 83, 165 P.3d 980, 984 (2007).
For these reasons, the Family Court's November 29, 2007
Judgment of Conviction and Sentence is affirmed.
DATED: Honolulu, Hawafi, March 25, 20l0.
On the briefs: t 619
Walter R. Schoettle P esiding Judge
for Defendant-Appellant
Delanie D. Prescott-Tate
Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee