State v. Toma

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Electronically Filed
Supreme Court
SCAP-13-0000029
21-DEC-2015
08:48 AM
SCAP-13-0000029
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Plaintiff-Appellee,
vs.
FAALAGA TOMA,
Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-13-0000029; CR. NO. 11-1-0452)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
and Circuit Judge Nacino, in place of Wilson, J., recused)
Part I (By: Nakayama, J., with whom Recktenwald, C.J.,
and Circuit Judge Nacino, join,
and Pollack, J., dissenting separately,
with whom McKenna, J., joins)
Part II (By: Pollack, J., with whom Recktenwald, C.J.,
and McKenna, J., join, and Nakayama, J., dissenting separately,
with whom Circuit Judge Nacino J., joins)
INTRODUCTION
This appeal arises out of defendant-appellant Faalaga
Toma’s (Toma) conviction of assault in the second degree in the
Circuit Court of the First Circuit (circuit court). Toma was
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charged with assault in the second degree on April 5, 2011. At
the end of trial, the circuit court allowed the jury to be
instructed with accomplice liability over the defense’s
objection, and the jury found Toma guilty as an accomplice to the
assault. On appeal, Toma argues that the circuit court erred in
giving the complicity instruction because the felony information
charged him as a principal and did not give him adequate notice
that he could be convicted as an accomplice. He also argues that
even if the jury instruction was properly given, there was
insufficient evidence to support his conviction as an accomplice.
For the reasons set forth below, we vacate the circuit
court’s judgment of conviction, and remand this case for further
proceedings.
A. BACKGROUND
Around midnight on August 28, 2010, Michael Bodner
(Bodner) and David Gunderson (Gunderson) arrived at Señor Frog’s
on the third floor of the Royal Hawaiian Shopping Center in
Waikiki. Bodner and Gunderson had just come from having drinks
at the Yard House. Toma’s company, Top Flight Security, had been
providing security to Señor Frog’s since 2008. On that night,
Toma was acting as head of security, and the other security
personnel were hired by Toma.
When Bodner and Gunderson approached the front of the
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line, Francysco “Paco” Dardon Herrera (Paco), who was working as
cashier, told them that they needed to pay a $10 cover charge to
get in. Bodner explained that he did not have money but asked to
use the restroom. Paco refused to let him in, and Bodner made a
derogatory remark about people from Mexico. According to Paco,
Bodner and Gunderson then pushed him. Other security members
including Pita Funaki (Funaki) moved to take Bodner and Gunderson
out of the foyer area.
Toma testified that while this was going on inside the
foyer area, he was outside doing his usual rounds when he heard
someone yell out that somebody had hit Paco. Toma then hit
Gunderson who was the first person to exit the front doors of
Señor Frog’s. Funaki then yelled out, “No, that’s not him.
That’s not him. It’s this guy[,]” referring to Bodner. Toma
immediately turned his attention to Bodner and slapped him.
Funaki then punched Bodner, putting him on the ground.
Bodner’s testimony contradicted Toma’s testimony.
Bodner testified that after he made the derogatory remark to
Paco, he was grabbed from behind, punched, and dragged out of the
foyer. He stated, “From my recollection, at that point, I was
continuously beat. Other people were hitting me as well. I felt
as if there were three individuals punching me.” Bodner recalled
that he was punched over fifteen times and his “head was ringing”
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after he “got nailed in [the] face really hard.” He stated, “And
I –- that’s what happens when you get knocked out. You kind
of –- it clocked me really good. Threw off my equilibrium. I’m
having trouble keeping balance.” Bodner testified that Toma held
him down and that three individuals repeatedly punched him.
Bodner testified that Toma then grabbed him by the throat while
other bouncers punched him.
Toma claimed that he was trying to move Bodner away
from Señor Frog’s and toward the escalator. Bodner and Gunderson
testified that Toma pushed Bodner against a rail and began
strangling him. Bodner was able to slide out of Toma’s grasp,
and Toma and at least one other person hit Bodner while other
people who had come from inside Señor Frogs yelled and encouraged
the fight. By this point there were “a lot of people out there
watching the fight . . . . And everyone seemed to be egging the
fight on and yelling things.” Gunderson testified that people
from the crowd may have “jumped in” and hit Bodner, and he stated
that he was unable to distinguish who worked for the nightclub
and who were customers of the nightclub.
Bodner testified that he fell to the ground where he
was kicked by multiple people in the back, top of his head, and
by Toma in his right eye. Gunderson testified that he saw Toma
kick Bodner in the face, although he did not see precisely where
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the kick landed. Toma denied that he kicked Bodner.
The following morning, Bodner went to Queens Medical
Center. Bodner’s face was swollen and puffy, and he learned that
his nose was fractured.
On April 5, 2011, Toma was charged with Assault in the
Second Degree via felony information which stated the following:
On or about the 28th day of August, 2010, in the City and
County of Honolulu, State of Hawai#i, FAALAGA TOMA did
intentionally or knowingly cause substantial bodily injury
to Michael Bodner, and/or did recklessly cause substantial
bodily injury to Michael Bodner, thereby committing the
offense of Assault in the Second Degree, in violation of
Section 707-711(1)(a) and/or Section 707-711(1)(b) of the
Hawai#i Revised Statutes.
1. Circuit Court Proceedings1
During the settlement of jury instructions, the circuit
court stated its intent to give a supplemental jury instruction
regarding complicity. The defense objected, arguing that Toma
had not been charged as an accomplice, that there was no evidence
of solicitation, and that giving the instruction would confuse
the jury because Bodner claimed “he was assaulted at various
locations, by various people, none of who he [could] identify.”
In response, the State argued that there was evidence of the
defendant being an accomplice, specifically video evidence
showing “an individual who’s been identified by the State’s
witnesses as another bouncer, striking Mr. Bodner.” The State
1
The Honorable Rom A. Trader presided.
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also argued that any confusion on the part of the jury would be
cleared up by a unanimity instruction that would inform the
jurors that they must unanimously agreed as to the person and act
that caused Bodner’s injury.
The circuit court overruled the defense’s objection
stating:
The Court believes, notwithstanding the concerns raised by
the Defense, that given the state of the evidence, there are
multiple individuals that were alleged to be involved in
this particular incident, who did or may have struck the
complainant. And given the facts and circumstances, the
Court does not necessarily agree that it’s required to
establish any sort of a relationship or knowledge, personal
knowledge, with respect to the identity or specific
individuals [sic] that might have been involved in this
particular incident. And that, within the context of the
additional instructions that the Court intends to give, the
Court believes that, notwithstanding the objection that’s
been raised, that the giving of this instruction is not only
appropriate, but required.
Defense counsel then asked the trial judge to identify the
evidence on which the circuit court based its finding that Toma
had solicited another person to commit the assault. The trial
judge responded,
[e]ssentially, as up to this point in time, there are
number of circumstances. There are certainly a number of
people that are there. There are a number of people that
the evidence would support that there were statements [sic]
being made by other individuals at about the time that Mr.
Bodner is alleged to have been assaulted outside of the
establishment.
But as far as this specific testimony, the Court would
simply note that, based upon the sum total of what’s before
the jury, that the solicitation aspect is nonetheless
appropriate.
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One of the State’s proposed instructions on accomplice
liability stated,
Before you find Defendant Faalaga Toma guilty of
any offense, you must unanimously agree that the
offense was committed by the Defendant’s own conduct
or by the conduct of another person for which he is
legally accountable or both and that the prosecution
has proved the offense beyond a reasonably doubt.
If you find the Defendant guilty, you will be
asked to identify on a special verdict form whether
you found that the offense was committed by the
Defendant’s own conduct or by the conduct of another
person for which he is legally accountable or both.2
The circuit court amended the instruction to read as follows:
Before you find Defendant Faalaga Toma guilty of
any offense, you must unanimously agree that the
offense was committed by the Defendant’s own conduct
or by the conduct of another person who you
unanimously determine to be an accomplice of the
Defendant or to whom the Defendant was an accomplice
and that the prosecution has proved the offense beyond
a reasonable doubt.
If you find the Defendant guilty, you will be
asked to identify on a special verdict form whether
you found that the offense was committed by the
Defendant’s own conduct or by the conduct of another
person who you unanimously determine to be an
2
The circuit court’s proposed modifications to this pattern
instruction on accomplice liability are indicated below:
[Y]ou will be asked on a special verdict form whether
you found that the offense was committed by the
Defendant’s own conduct or by the conduct of another
person for which he is legally accountable or both.
and that the prosecution has proven the offense beyond
a reasonable doubt
[who you unanimously determine to be an accomplice of
the D
or
to whom the D was an accomplice]
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accomplice of the Defendant or to whom the Defendant
was an accomplice and that the prosecution has proven
the offense beyond a reasonable doubt.
The reason for the court’s modification does not appear in the
record. Defense counsel objected with the following:
We object, both for the reasons stated as to the
accomplice instructions as a whole, and secondarily as
to this specific instruction, because we also believe
there needs to be included language as to the
requirement that the jury unanimously determine not
only an accomplice to the defendant, or to whom the
defendant was an accomplice, but also the act that was
committed by that person.
However, the circuit court gave the instruction as modified.
The verdict form consisted of two questions. The first
question asked, “Did the jury unanimously find that the
prosecution proved beyond a reasonable doubt that Defendant
Faalaga Toma committed the offense by his own conduct?”3 The
verdict form then asked, “Did the jury unanimously find that the
prosecution proved beyond a reasonable doubt that Defendant
Faalaga Toma committed the offense by the conduct of another
person who you unanimously determine to be an accomplice of the
Defendant or to whom the Defendant was an accomplice?”4
3
The jury indicated “No” as its response to the first question on
the verdict form, concluding that the State had not proved Toma committed the
offense by his own conduct.
4
The jury answered “Yes” to the verdict form’s second question
incorporating the theory of accomplice liability from the court’s modified
instruction, and thus the form indicated that the jury found that the
prosecution proved beyond a reasonable doubt that Toma was guilty based on
“the conduct of another person who [the jury] unanimously determine[d] to be
an accomplice of the Defendant or to whom the Defendant was an accomplice.”
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During deliberation, the jury submitted the following
question to the court: “Could you explain the accomplice policy?”
In response, the court instructed the jury to refer to all the
instructions provided, specifically the ones pertaining to
accomplice liability. Shortly thereafter, the jury reached a
verdict. The jury found Toma guilty of Assault in the Second
Degree (HRS § 707-711(1)(a) and/or § 701-711(1)(b)). According
to the verdict form, the jury found that Toma did not commit the
offense by his own conduct but found him guilty as an accomplice
to the assault. See supra notes 3-4 and accompanying text. Toma
was sentenced to five years of probation and the Judgment of
Conviction of Probation Sentence was filed on December 18, 2012.
2. Toma’s Appeal
On January 16, 2013, Toma filed a timely appeal to his
conviction and sentence. After briefing was completed, Toma
filed a timely application for transfer of the appeal from the
ICA to this court on October 14, 2013. On November 13, 2013,
this court issued an order granting discretionary transfer
pursuant to HRS § 602-58(b). The transfer was accepted so that
this court could address a purported inconsistency in its case
law.5
5
See infra Part I.1.
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On appeal, Toma asserts two points of error: 1) “[t]he
circuit court erred in instructing the jury with complicity
because the State failed to provide adequate and fair notice to
Toma by failing to allege complicity in the charging document[,]”
and 2) there was insufficient evidence to find Toma guilty as an
accomplice to the assault.
B. STANDARDS OF REVIEW
1. Sufficiency of a Charge
“‘Whether [a charge] sets forth all the essential
elements of [a charged] offense . . . is a question of law[,]’
which we review under the de novo, or ‘right/wrong,’ standard.’”
State v. Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170, 1177
(2009).
2. Sufficiency of Evidence
“On appeal the test to determine the sufficiency of the
evidence is whether, viewing the evidence in the light most
favorable to the State, there is substantial evidence to support
the conclusion of the trier of fact.” State v. Ildefonso, 72
Haw. 573, 576, 827 P.2d 648, 651 (1992). “It matters not if a
conviction under the evidence as so considered might be deemed to
be against the weight of the evidence so long as there is
substantial evidence tending to support the requisite findings
for the conviction.” State v. Tamura, 63 Haw. 636, 637, 633 P.2d
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1115, 1117 (1981). “‘Substantial evidence’ . . . is credible
evidence which is of sufficient quality and probative value to
enable a man of reasonable caution to reach a conclusion.” State
v. Naeole, 62 Haw. 563, 565, 617 P.2d 820, 823 (1980).
3. Jury Instructions
“When jury instructions . . . 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.” State v. Nichols, 111
Hawai#i 327, 334, 141 P.3d 974, 981 (2006).
PART I: THE CIRCUIT COURT DID NOT ERR IN GIVING THE JURY
AN ACCOMPLICE LIABILITY INSTRUCTION, AND THERE WAS SUBSTANTIAL
EVIDENCE TO SUPPORT TOMA’S CONVICTION.
(By: Nakayama, J., with whom Recktenwald, C.J.,
and Circuit Judge Nacino, join)
1. The Court did not err in giving the jury a complicity
liability instruction because Apao is controlling.
Toma argues that the circuit court erred in instructing
the jury with complicity because the State did not charge or
allege sufficient facts to put him on notice that he may be
liable as an accomplice. Therefore, Toma argues that the jury
instruction and his subsequent conviction violated his state and
federal constitutional rights to adequate and fair notice. Toma
further asserts that although State v. Apao, 59 Haw. 625, 586
P.2d 250 (1978), is controlling, it is ripe for review in light
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of this court’s holding in State v. Wheeler, 121 Hawai#i 383, 219
P.3d 1179 (2009).
The State argues that pursuant to Apao and the Hawai#i
Penal Code, there are no distinctions between principals and
accessories, and charging a defendant as a principal is
sufficient to put him/her on notice that he/she may be convicted
as an accomplice. The State also contends that because it was
clear that there were others involved in the incident who were
under Toma’s supervision and who shared his motivations and
purpose, Toma had sufficient notice that he could be liable as an
accomplice.
As set forth below, the circuit court did not err in
giving the jury a complicity liability instruction because it was
proper to do so under Apao.
A. The circuit court did not err in giving the jury an
instruction on complicity under Apao.
In Apao, the defendant was found guilty of murder
following a grand jury indictment that stated:
On or about the 20th day of July, 1974, in the City
and County of Honolulu, State of Hawai#i, ROY AIU APAO
did intentionally or knowingly cause the death of
Faafouina Tuaolo, a person known by Roy Aiu Apao to be
a witness in a murder prosecution, by beating the said
Faafouina Tuaolo, thereby committing the offense of
murder in violation of Section 701 and 606(a)(ii) of
the Hawai#i Penal Code, Act 9, Session Laws of Hawai#i,
1972.
59 Haw. at 627, 586 P.2d at 253. At trial, three witnesses who
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were with Apao and the victim testified and gave conflicting
accounts as to the extent of each person’s participation in the
killing. Id. at 630-33, 586 P.2d at 255-56. Near the end of
trial, the jury was instructed with the law of principals and
accomplices over the defense’s objection. Id. at 630, 586 P.2d
at 255.
On appeal, Apao argued that the giving of such
instruction was reversible error because the indictment did not
specify whether he was being charged as a principal or an
accomplice. Id. at 644, 586 P.2d at 262. This court disagreed
with Apao and cited to Sections 702-221 through 702-223 of the
Hawai#i Revised Statutes (HRS). Id. at 644-45, 586 P.2d at 262-
63. HRS § 702-221 states that a person can be guilty of an
offense if he/she commits the offense by his/her own conduct or
if he/she is an accomplice to another person in the commission of
the offense. This court further noted that the commentary to §
702-221(1) clarified that “[d]istinctions between principals and
accessories are dispensed with and a defendant may be convicted
directly of an offense committed by another for whose conduct the
defendant is accountable.” As to Apao’s claim that he was not
able to prepare a proper defense because the indictment did not
provide whether he was being charged as a principal or an
accomplice, this court noted that other jurisdictions have held
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that “when the indictment charges a defendant as principal, it is
not error for the court to instruct the jury that under the facts
of a particular case, the defendant may be guilty as an aider and
abetter.” Apao, 59 Haw. at 645-46, 586 P.2d at 263. The court
concluded that given testimony regarding Apao’s participation in
the events surrounding the killing, there was sufficient proof to
support the indictment, and the jury instruction was proper. Id.
at 646, 586 P.2d at 263.
When Apao is applied to the instant case, the circuit
court did not err in giving the complicity instruction. Like
Apao, Toma could be convicted as an accomplice in the commission
of the assault, even though the felony information charged him as
a principal. In fact, Toma does not dispute that Apao is on
point and controlling in this case, nor does he dispute that the
circuit court did not err if Apao is still good law. Instead,
Toma argues that Apao should be overturned because it is
inconsistent with Wheeler and its progeny. (“Although State v.
Apao . . . addressed this issue 35 years ago, in light of the
more recent decisions of State v. Wheeler . . . and its progeny,
Apao is not only ripe for review, but under the current case law,
it must be overturned.”).
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B. Apao remains good law because it is not inconsistent
with Wheeler and comports with notice requirements.
Toma argues that “[i]n the last 35 years since Apao,
there have been momentous changes in the Hawai#i and the United
States Supreme Courts’s jurisprudence regarding notice in
charging . . . [and] Apao is irreconcilable with these cases.”
However, Toma fails to recognize that while these recent cases
have clarified notice requirements, they have not changed the
existing law in this area that pre-dates Apao. Additionally,
because a charge as a principal gives a defendant sufficient
notice of what he must defend against, Apao is not inconsistent
with these cases and meets constitutional requirements.
In Wheeler, this court held that an oral charge of
operating a vehicle under the influence of an intoxicant (OVUII)
was insufficient because it did not allege that the defendant
operated his vehicle upon a public way, street, road, or highway
which the court found to be an element of the offense. 121
Hawai#i at 393, 219 P.3d at 1180. However, while Toma asserts
that Wheeler was part of a “momentous change” in case law
regarding notice in charging, the court in Wheeler relied on
older, pre-existing case law in rendering its decision. The
court cited to State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d
1242, 1244 (1977), a case decided two years before Apao, for the
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rule that “an ‘accusation must sufficiently allege all of the
essential elements of the offense charged,’ a requirement that
‘obtains whether an accusation is in the nature of an oral
charge, information, indictment, or complaint[.]’” Wheeler, 121
Hawai#i at 391, 219 P.3d at 1178. Therefore, although Wheeler
was decided many years after Apao, it was decided under
principles of law that already existed when Apao was decided.
Furthermore, since the time that Toma’s Application for
Transfer was granted, this court decided State v. Acker in which
it upheld the rule that a defendant may properly be convicted as
an accomplice even though he/she was only charged as a principal.
133 Hawai#i 253, 327 P.3d 931 (2014). Therefore, despite Toma’s
arguments that the court should revisit Apao and that Apao has
been implicitly overturned by Wheeler, this court has clearly
declined to do so and has disagreed with Toma.
Toma also argues that because he was not charged with
complicity, he was not given “adequate and fair notice, as
guaranteed under Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution and Article I, §§ 5 and 14 of the
Hawai#i Constitution.” Article I, § 14 of the Constitution of
the State of Hawai#i and the Sixth Amendment of the Constitution
of the United States contain identical language stating that
“[i]n all criminal prosecutions, the accused shall enjoy the
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right . . . to be informed of the nature and cause of the
accusation.” In addressing this constitutional right, the court
in Wheeler noted that “[the Hawai#i Supreme Court’s] analysis of
charges under the Hawai#i constitution has focused on whether the
language actually used in the charge provides fair notice to the
defendant.” 121 Hawai#i at 394, 219 P.3d at 1181. The court
then concluded that the oral charge was deficient because it did
not provide adequate notice to Wheeler that the State was
required to prove that he had operated the vehicle on a public
road as an element of an OVUII offense. Id. at 395, 219 P.3d at
1182.
Other cases analyzing the sufficiency of a charge have
also focused on whether the charge provides the defendant fair
notice of the nature and cause of the alleged offense. See,
e.g., State v. Nesmith, 127 Hawai#i 48, 56, 276 P.3d 617, 625
(2012) (charge insufficient for failing to include intentional,
knowing, or reckless state of mind requirements because omission
does not inform defendant that negligently operating a vehicle
under the influence of an intoxicant is not an offense under HRS
§ 291E-61(a)(1)); State v. Mita, (charge sufficient even though
statutory definition of “animal nuisance” was not alleged because
the definition did not create any additional elements of the
offense, and the definition is consistent with its commonly
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understood meaning so that defendant had fair notice of the
offense charged); State v. Israel, 78 Hawai#i 66, 72, 890 P.2d
303, 309 (1995) (charge did not adequately inform defendant of
the nature and cause of Possession, Use or Threat to Use a
Firearm in the Commission of a Felony offense because the
underlying felony was not alleged); State v. Jendrusch, 58 Haw.
279, 281-82, 567 P.2d 1242, 1244-45 (1977) (charge was
insufficient for failing to allege all of the essential elements
of the offense charged and was, therefore, a denial of due
process).
In the present case, the felony information
sufficiently charged Toma with Assault in the Second Degree under
HRS § 707-711(1)(a) and/or (b). Toma does not contest that the
felony information provided him with adequate notice as to the
charge of assault. He instead seems to argue that charging a
defendant under HRS § 707-711, without more, is only sufficient
to charge him/her as a principal. He asserts that assault as a
principal and assault as an accomplice are different “offenses
[that] are separately codified and encompass different elements.”
Toma, therefore, contends that the felony information needed to
“adequately inform Toma of the elements and essential facts of
complicity to Assault in the Second Degree.”
However, Toma’s argument fails for the same reason that
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Apao and Wheeler are not inconsistent: assault as a principal and
assault as an accomplice are not separate offenses but different
theories of liability for the same offense. Accomplice liability
does not need to be charged to comply with notice requirements
because it is not a crime but a theory of culpability. Strong v.
Dragovich, No. Civ. A. 00-5058, 2006 WL 1517343, at *5 (E.D.
Penn. May 31, 2006). Although complicity and assault in the
second degree are codified in different HRS chapters, complicity
is in Chapter 702, titled “General Principles of Penal
Liability,” and there are no specific criminal offenses contained
in that chapter. Assault in the second degree, on the other
hand, is one of the specific criminal offenses in Chapter 707,
titled “Offenses Against the Person.” Therefore, even the
organization of HRS suggests that complicity is not an offense.
This is also evidenced by the fact that a defendant cannot be
guilty as an accomplice unless the jury finds that a principal
committed an underlying offense. See State v. Keaweehu, 110
Hawai#i 129, 134, 129 P.3d 1157, 1162 (App. 2006) (jury
instruction needed to “sufficiently advise[] the jury that the
charged offense must have been committed for the defendant to be
an accomplice”).
Thus, Toma could be convicted as an accomplice even
though he was charged as a principal because the charge gave him
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adequate notice of the nature and cause of the alleged offense,
assault in the second degree. See Apao, 59 Haw. at 645-46, 586
P.2d at 263 (citing State v. Cooper, 26 Wash. 2d 405, 174 P.2d
545 (1946)) (specifically noting the Washington Supreme Court’s
holding that “the defendant was sufficiently put on notice when
he was charged as a principal in the indictment, and the [trial]
court did not err in instructing the jury on the theory of
‘aiding and abetting.’”). Neither Hawai#i case law nor the
Hawai#i and United States constitutions require more.6
6
The dissent argues that our analysis here is flawed because
charging a defendant as a principal does not necessarily provide a defendant
with sufficient notice that he/she must also be prepared to defend against
accomplice liability, and our case law demonstrates this by considering the
facts of each case to determine whether or not the defendant had sufficient
notice of accomplice liability. Dissent at 2-3. In support of this argument,
the dissent cites to State v. Soares, 72 Haw. 278, 815 P.2d 428 (1991), and
asserts that “Soares demonstrates that charging a defendant as a principal is
not necessarily sufficient to provide the defendant with adequate notice of
the charges as constitutionally required by both the Hawai#i and federal
constitutions.” Dissent at 5. In Soares, this court held that the jury was
improperly instructed with accomplice liability because “under the
circumstances . . . , where each defendant is charged separately and each
charge involves different facts with different victims, an accomplice
instruction should not have been given.” 72 Haw. at 281, 815 P.2d at 430.
However, Soares is distinguishable from this case because the different facts
and victims in Soares made the charges two separate offenses. Therefore, the
Soares court was not addressing different theories of liability, but a
scenario in which the defendants could have been convicted of an offense that
they were never charged with. This is clearly distinguishable from and
inapplicable to the present case where Toma was convicted of the offense he
was charged with.
The dissent also relies on State v. Fukusaku, 85 Hawai#i 462, 946
P.2d 32 (1997), and asserts that “even after discounting the necessity for
notice of accomplice liability in the charging instrument, [the court]
discussed the facts and circumstances of the case to demonstrate that the
defendant did have notice that he could be charged with complicity.” Dissent
at 6. The defendant in that case had alleged that the prosecution had
indicated that it would not be pursuing accomplice liability and, thus, he had
no notice that accomplice liability was still a possibility. Fukusaku, 85
Hawai#i at 55-57, 946 P.2d at 485-87. Therefore, the court needed to recount
(continued...)
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For the foregoing reasons, Apao is not outdated or
inconsistent with current case law regarding notice requirements
for charging documents.
C. Apao is consistent with how other state and federal
jurisdictions treat principal and accomplice liability.
Other state and federal jurisdictions have also held
that a defendant who is indicted as a principal to an offense may
be properly convicted as an accomplice.
Like HRS § 702-221, 18 U.S.C. § 2 states that there are
no distinctions between principals and accomplices because
“[w]hoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.” Federal courts have also long
recognized that charging a defendant as a principal and
convicting him as an accomplice does not violate the Sixth
Amendment, which contains identical language to Article I, § 14
of the Hawai#i state constitution regarding notice requirements
for charging documents. See, e.g., United States v. Moore, 936
F.2d 1508, 1526 (7th Cir. 1991) (“It is unnecessary that an
6
(...continued)
the facts presented and events at trial to show that the “[d]efendant’s claim
that accomplice liability was precluded by the Prosecution’s assurances [was]
unsupported by the record.” Id. at 56, 946 P.2d at 486. Although the court
needed to address these facts and circumstances in order to dispose of
Fukusaku’s allegations of unfairness or surprise, this court did not hold that
such an analysis is necessary absent such allegations of assurances made by
the prosecutor.
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indictment specifically charge aiding or abetting.”); United
States v. Kegler, 724 F.2d 190, 201 (D.C. Cir. 1983) (“An aiding
and abetting instruction may be given in a case where the
indictment does not allege violation of the aiding and abetting
statute.”); United States v. McCambridge, 551 F.2d 865, 871 (1st
Cir. 1977) (“It is well settled that even though a defendant is
indicted solely for commission of a substantive offense, he may
be convicted as an aider and abettor even if not designated as
such in the indictment.”); United States v. Good Shield, 544 F.2d
950, 952 (8th Cir. 1976) (“The indictment may charge a defendant
as a principal, and need not specifically allege that he aided
and abetted in the commission of the crime.”); Pang v. United
States, 209 F.2d 245, 246 (9th Cir. 1953) (rejecting the argument
that the law requires that a defendant be charged as an aider or
abettor in the indictment if he/she is to be tried as such).
Moreover, the vast majority of states that have
addressed this issue also follow the same approach. See, e.g.,
Baker v. State, 905 P.2d 479, 489 (Alaska Ct. App. 1995); Whitson
v. State, 109 So. 3d 665 (Ala. Crim. App. 212); State v.
McInelly, 704 P.2d 291 (Ariz. Ct. App. 1985); Holsombach v.
State, 246 S.W.3d 871 (Ark. 2007); Johnson v. State, 215 A.2d 247(Del. 1965); State v. Shackelford, 247 P.3d 582 (Idaho 2010);
People v. Ceja, 789 N.E.2d 1228 (Ill. 2003); State v. Barton, 702
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A.2d 336 (N.H. 1997); People v. Rivera, 646 N.E.2d 1098 (N.Y.
1995); State v. Burney, 82 P.3d 164 (Or. Ct. App. 2003); Com. v.
Perkins, 401 A.2d 1320 (Pa. 1979); State v. Dickman, 534 S.E.2d
268 (S.C. 2000); State v. Johnston, 933 P.2d 448 (Wash. Ct. App.
1997).
Therefore, because the rule from Apao is the prevailing
view in this country, and it does not raise notice issues, this
court should reject Toma’s argument that it should be overturned.
2. There was sufficient evidence to support the jury’s finding
that Toma acted as an accomplice.
In Toma’s second point of error, he argues that even if
the trial court did not err in instructing the jury with
complicity, his conviction must be reversed because there was
insufficient evidence to support it. He argues that HRS § 702-
222(1) requires that a defendant have “the intention of promoting
or facilitating the commission of the offense” to be liable as an
accomplice and that he did not have this requisite intent because
his intent was to get Bodner to leave, not to commit assault in
the second degree. He also argues that there was no evidence
that he solicited, aided, or attempted to aid any of the multiple
individuals who also hit Bodner.
In response, the State argues that although it needed
to prove that Toma intentionally promoted or facilitated the
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commission of the assault, only a reckless state of mind was
required to be proven as to the result of serious bodily injury.
The State also contends that because there was evidence that Toma
had hired the other security personnel at Señor Frog’s, that the
security personnel were working in concert during the incident,
and that Toma immediately turned his attention to Bodner and
slapped him after Funaki said “It’s this guy[,]” there was proof
that Toma and Funaki were working as a team and that Toma acted
with intent to engage his team to hit and kick Bodner.
Toma’s argument that “there must be proof that [he]
intended to cause or facilitate Bodner’s nose being fractured and
that he ‘aided or agreed or attempted to aid another person in
planning or committing’ the nose fracture” is without merit. HRS
§ 707-223 states that:
[w]hen causing a particular result is an element of an
offense, an accomplice in the conduct causing the result is
an accomplice in the commission of that offense, if the
accomplice acts, with respect to that result, with the state
of mind that is sufficient for the commission of the
offense.
Therefore, because HRS § 707-711(b) states that a person commits
assault in the second degree if “[t]he person recklessly causes
serious bodily injury to another person[,]” it does not matter
whether Toma actually intended to cause serious bodily injury to
Bodner, as long as he solicited, aided, or attempted to aid the
principal in attacking Bodner while disregarding known risks that
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serious bodily injury could result.7 And because there was
evidence that Toma and Funaki were working together, that Funaki
hit Bodner with a running punch after Toma slapped him around,
that Funaki said, “It’s this guy[,]” and that Toma participated
with others in further beating Bodner and kicking him, there was
sufficient evidence that he solicited, aided, or attempted to aid
the others in committing assault in the second degree.
DATED: Honolulu, Hawai#i, December 21, 2015.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Edwin C. Nacino
PART II: THE CIRCUIT COURT’S ACCOMPLICE INSTRUCTION AFFECTED
TOMA’S SUBSTANTIAL RIGHTS AND DENIED HIM A FAIR TRIAL.
(By: Pollack, J., with whom Recktenwald, C.J.,
and McKenna, J., join)
In his application for writ of certiorari, Toma argues
that the circuit court’s jury instructions regarding accomplice
liability “did not clearly or adequately convey the proper
instructions and were therefore, prejudicially insufficient,
erroneous, and misleading thereby violating Toma’s constitutional
rights to a fair trial and due process.” The circuit court
7
The commentary to HRS § 702-223 gives the following example:
[O]ne who urges a driver to increase the speed of an
automobile, disregarding known risks to pedestrians, would
stand in the same position as the driver on a charge of
reckless homicide and would not be allowed to defend on the
ground that one solicited the violation of the traffic law
and not the homicide law.
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instructed the jury that they could convict Toma of the assault
charge if Toma was the accomplice of the person who committed the
assault or if the person who committed the assault was an
accomplice of Toma. The latter alternative in the court’s
instruction permitted the jury to convict Toma on a theory of
criminal liability that is not recognized by our law and thus
affected Toma’s substantial rights and was not harmless beyond a
reasonable doubt.
1. The Circuit Court’s Alternative Theory of Accomplice
Liability is Not Recognized by Hawai#i Law.
Under Hawai#i law, a person is guilty of an offense “if
it is committed by the conduct of another person for which he is
legally accountable; such accountability arises when he is an
accomplice to the perpetrator in the commission of the offense.”
State v. Hernandez, 61 Haw. 475, 480, 605 P.2d 75, 78 (1980); see
also HRS § 702-221 (1993).
Accomplice liability is a limited theory of liability
that focuses on the accused’s conduct establishing complicity.
See HRS § 702-222 cmt. Accomplice liability is set forth in HRS
§ 702-222 (1993), which provides as follows:
A person is an accomplice of another person in the
commission of an offense if:
(1) With the intention of promoting or facilitating the
commission of the offense, the person:
(a) Solicits the other person to commit it; [or]
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(b) Aids or agrees or attempts to aid the other person in
planning or committing it . . . .
Thus, the requisite intent of an accomplice to promote or
facilitate the commission of the offense is premised on the
accomplice’s objective to bring about the conduct that forms the
basis for the charge, that is, the principal’s conduct. See
State v. Basham, 132 Hawai#i 97, 109, 319 P.3d 1105, 1117 (2014)
(discussing the meaning of “intention of promoting or
facilitating the commission of the offense”); State v. Mikasa,
111 Hawai#i 1, 6, 135 P.3d 1044, 1049 (2006) (“A principal is the
person that commits the crime.”). Thus, HRS § 702-222 requires
proof of conduct establishing complicity--solicitation, aiding,
agreeing to aid, or attempting to aid--“[w]ith the intention of
promoting or facilitating the commission of the offense.”
The circuit court’s modification to the State’s
proposed jury instruction in this case reflects a critical
misunderstanding of accomplice liability. The circuit court
instructed the jury that Toma could be found guilty if Toma was
an accomplice of the principal or if the principal was an
accomplice of Toma:
Before you find Defendant Faalaga Toma guilty of any
offense, you must unanimously agree that the offense was
committed by the Defendant’s own conduct or by the conduct
of another person who you unanimously determine to be an
accomplice of the Defendant or to whom the Defendant was an
accomplice and that the prosecution has proved the offense
beyond a reasonable doubt.
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(Emphasis added). Consequently, the court submitted a theory of
criminal liability to the jury that Toma could be found guilty
based on another person being both the principal and the
accomplice for the offense. The court did so unprompted by the
State and over the objection of defense counsel.
The circuit court’s accomplice liability theory,
allowing for conviction based on the principal being an
accomplice, is directly contrary to HRS § 702-222--which provides
that a person is an accomplice based on his or her own intent and
conduct demonstrating complicity. The commentary to HRS § 702-
222 states, “The Code avoids the vague concept of conspiracy in
basing penal liability on the conduct of another, and focuses
instead on the conduct of the accused which is sufficient to
establish the accused’s complicity.” See HRS § 702-222 cmt. The
commentary to Model Penal Code § 2.06 (Proposed Official Draft
1962)--from which accomplice liability under HRS §§ 702-221 and
702-222 is derived11--makes the same observation. See Model
Penal Code § 2.06 cmt. 4.(a) (providing that the most important
point of divergence from the common law with regard to accomplice
liability is that “it does not make ‘conspiracy’ as such a basis
of complicity in substantive offenses committed in furtherance of
its aims”). In rejecting the conspiracy model, the HRS and Model
11
See HRS vol. 7A app. 3 (1976) (table of derivation).
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Penal Code formulation of accomplice liability “asks, instead,
more specific questions about the behavior charged to constitute
complicity, such as whether the defendant solicited the
commission of the particular offense or whether he aided, or
agreed or attempted to aid, in its commission.” Id. “The reason
for this treatment is that there appears to be no better way to
confine within reasonable limits the scope of liability to which
conspiracy may theoretically give rise.” Id.
Therefore, it would be contrary to HRS § 702-222 to
find Toma guilty of an offense because another person was his
accomplice. Such a result would allow the jury to convict Toma
based on another person’s intention of promoting or facilitating
the commission of the offense and the other person’s conduct
demonstrating complicity. Under our law, Toma can only be
legally responsible for the assault as an accomplice if the State
demonstrates that Toma solicited, aided, agreed to aid, or
attempted to aid another person with the intention of promoting
or facilitating the commission of the offense. HRS § 702-222.
The circuit court’s theory that accomplice liability may be
premised on the principal being an accomplice of the defendant is
an expansion of accomplice liability neither prescribed nor
authorized under HRS § 702-222.
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2. Hawai#i Law Precludes Judicial Establishment of a Theory of
Criminal Liability.
As discussed, the circuit court’s theory of accomplice
liability in this case is not recognized by Hawai#i law. This
unfounded expansion of accomplice liability amounts to judicial
establishment of a theory of criminal liability. Such judicial
expansion of the law is directly contrary to Hawaii’s
comprehensive criminal statutory scheme, which precludes common-
law offenses and theories of criminal liability.
It has long been “observed that there are no common-law
offenses in Hawai#i.” Territory v. Rogers, 37 Haw. 566, 567
(Haw. Terr. 1947). In 1972, this basic principle was enacted
into law; HRS § 701-102(1) (1993) provides, “No behavior
constitutes an offense unless it is a crime or violation under
this Code or another statute of this State.” The commentary to
HRS § 701-102 notes that despite the clear rule against common-
law offenses, “it appears wise to enact specifically that no
behavior is penal unless it is made so by this Code or by another
statute.” HRS § 701-102 cmt12 (Emphasis added).
In State v. Yamamoto, 98 Hawai#i 208, 46 P.3d 109212
HRS § 701-102 was derived from Model Penal Code § 1.05. See HRS
vol. 7A app. 3 (1976) (table of derivation). The commentary to Model Penal
Code § 1.05 is in accordance with the commentary to HRS § 701-102(1). The
Model Penal Code commentary explains that “[t]here can be no justification for
preserving common law offenses once a comprehensive penal code is enacted.”
Model Penal Code § 1.05 cmt. 2.
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(App. 2002), the trial court erroneously instructed the jury with
regard to one of the elements of kidnapping by stating,
“Terrorize means the risk of causing another person serious alarm
for his or her personal safety.” 98 Hawai#i at 217, 46 P.3d at
1101. The inclusion of the word “risk” was error because the
kidnapping statute required the intent to “[t]errorize that
person or a third person,” not the intention of the “mere risk of
causing another person serious alarm.” Id. The Yamamoto court
cited to HRS § 701-102(1) in support of its conclusion that a
conviction based on the defendant’s “mere risk” of terrorizing
the victim was “not the statutory crime, and hence, no crime at
all.” Id. at 219, 46 P.3d at 1103; cf. State v. Kaakimaka, 84
Hawai#i 280, 295, 933 P.2d 617, 632 (1997).13
The instruction in this case, like the erroneous
instruction in Yamamoto, instructed the jury in a manner that is
unfounded in statutory law. The circuit court’s theory of
accomplice liability is not a statutory theory of liability as it
13
In Kaakimaka, the prosecution attempted to extend the three year
statute of limitations for conspiracy to commit second degree murder based on
“concealment of the murder” as being an “original objective of the murder.”
Id. at 292, 933 P.2d at 629. However, the court concluded that “the
conspiratorial objective must constitute an offense enumerated within the
Code,” and the prosecution did not cite to any section of the code in its
indictment prohibiting “concealment.” Id. at 293, 933 P.2d at 630. The court
found that “[b]ecause the ‘concealment’ objective is not an enumerated offense
within the Code, the defendants have not been notified, as due process
requires, of any cognizable objective of the conspiracy that could extend the
limitations period.” Id. at 295, 933 P.2d at 632.
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is not premised on the definition of accomplice liability found
in HRS § 702-222, and, thus, it is “no crime at all.” Id. at
219, 46 P.3d at 1103. The circuit court instructed the jury
that it could find Toma guilty of the charged offense if another
person was an accomplice of him, even though HRS § 702-222
requires Toma to have the requisite intent to promote or
facilitate the commission of the offense and to engage in conduct
demonstrating complicity.
A jury instruction that violates the prohibition in HRS
§ 701-102, by submitting to the jury a common law theory of
criminal liability, also raises significant due process concerns,
for a criminal justice system that requires criminal liability to
be statutorily defined is “a dictate of fundamental fairness.”
See HRS § 701-102 cmt.14
3. Unforeseeable Judicial Enlargement of a Theory of Criminal
Liability Violates Fundamental Constitutional Rights.
Because the flawed jury instruction in this case went
far beyond the definition of “accomplice liability,” it expanded
the scope of Toma’s criminal liability in a way that Toma could
not have anticipated. Such an “unforeseeable and retroactive
judicial expansion of narrow and precise statutory language”
14
The Model Penal Code commentary also points to “vagueness of the
common law offenses” as another point of concern and criticism of common law
offenses. Model Penal Code § 1.05 cmt. 2.
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deprives a defendant of the right to fair notice under the Due
Process Clause of the United States Constitution and article 1,
section 5 of the Hawai#i Constitution. See Bouie v. City of
Columbia, 378 U.S. 347, 352 (1964); Garcia v. State, 125 Hawai#i
429, 437-38, 263 P.3d 709, 717-18 (2010) (noting unexpected
judicial reformation of the law violates the principle of fair
warning); State v. Jess, 117 Hawai#i 381, 408, 184 P.3d 133, 160
(2008) (same). Additionally, the circuit court’s expansion of
criminal liability by its jury instructions on the law deprived
Toma of an adequate opportunity to defend against the uncharged
accusation and derogated his right to a fair trial.15
Of further gravity, “judicial enlargement of a criminal
act by interpretation is at war with a fundamental concept of the
common law that crimes must be defined with appropriate
definiteness.” Bouie, 378 U.S. at 352; see State v. Alangcas,
No. SCWC-30109, 2015 WL 518274, at *11 (Haw. Feb. 9, 2015, Feb.
20, 2015); State v. Beltran, 116 Hawai#i 146, 151, 172 P.3d 458,
463 (2007). The United States Supreme Court has stated that
15
“The due process guarantee of the . . . Hawaii constitution[]
serves to protect the right of an accused in a criminal case to a
fundamentally fair trial. Central to the protections of due process is the
right to be accorded a meaningful opportunity to present a complete defense.”
State v. Kaulia, 128 Hawai#i 479, 487, 291 P.3d 377, 385 (2013) (alteration in
original) (quoting State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672
(1990)) (internal quotation marks omitted); Crane v. Kentucky, 476 U.S. 683,
690 (1986) (“[T]he Constitution guarantees criminal defendants “a meaningful
opportunity to present a complete defense.”).
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“unforeseeable judicial enlargement of a criminal statute,
applied retroactively, operates precisely like an ex post facto
law,” and the Court reasoned that “[i]f a state legislature is
barred by the Ex Post Facto Clause from passing such a law, it
must follow that a State Supreme Court is barred by the Due
Process Clause from achieving precisely the same result by
judicial construction.” Bouie, 378 U.S. at 353-54.
By instructing the jury in a manner that judicially
expanded accomplice liability, the circuit court enlarged HRS §
207-722 in a manner completely unforeseeable to Toma and
retroactively charged an unfounded theory of accomplice liability
to Toma’s previous conduct. “Our system of laws assumes that a
person must choose between lawful and unlawful conduct, so we
require that laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that he or
she may act accordingly.” State v. Kaneakua, 61 Haw. 136, 138,
597 P.2d 590, 592 (1979).
This “fundamental principle that ‘the required criminal
law must have existed when the conduct in issue occurred,’”
applies “to bar retroactive criminal prohibitions emanating from
courts.” Bouie, 378 U.S. at 353 (quoting Hall, General
Principles of Criminal Law 58—59 (2d ed. 1960)). Because HRS §
702-222 and our case law applying accomplice liability could not
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possibly have put Toma on notice with regard to the circuit
court’s erroneous theory of accomplice liability, the jury
instruction violated Toma’s federal and state due process rights
and deprived Toma of a fair trial and his right to prepare and
present a defense. This denial of Toma’s due process and fair
trial rights affected his substantial rights.16
4. Flawed Accomplice Instruction Failed to Require Proof of a
Culpable State of Mind or Conduct.
The circuit court’s misstatement of accomplice
liability in its instruction to the jury also implicates the most
basic statutory requirements for proof of accomplice liability.
Under Hawai#i law, a person may not be convicted of an offense
unless each element of the offense and the state of mind required
to establish each element of the offense is proved beyond a
reasonable doubt. HRS § 701-114 (1993).
In State v. Aganon, 97 Hawai#i 299, 36 P.3d 1269(2001), this court found that a jury instruction, which
instructed a jury that it only needed to find the requisite state
of mind as to one of three elements, constituted plain error.
The defendant in Aganon was charged with the offense of murder in
16
See State v. Miller, 122 Hawai#i 92, 101, 223 P.3d 157, 166 (2010)
(recognizing appellate review under the plain error standard is appropriate
where trial court error “implicates” “due process” (quoting State v. Adams, 76
Hawai#i 408, 414, 879 P.2d 513, 519 (1994)).
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the second degree under HRS § 702-205 (1993), which required
proof that the defendant acted intentionally or knowingly with
respect to each of the three elements of the offense. 97 Hawai#i
302, 36 P.3d at 1273. The court instructed the jury that the
three elements must have been committed by the defendant
“intentionally or knowingly,” and the court proceeded to define
what “intentionally” and “knowingly” meant respectively in the
context of each element of the offense. Id. at 301-02; 36 P.3d
at 1272-73. In response to a communication sent by the jury in
deliberation, the court erroneously instructed the jury that it
was sufficient if the jury unanimously agreed that the defendant
had the requisite state of mind for one of the three elements.
Id. at 302; 36 P.3d at 1273. This court held that the error
adversely affected the defendant’s substantial rights and
constituted plain error because the jury could have found the
defendant guilty without finding the requisite state of mind for
each element of the offense. Id. at 303; 36 P.3d at 1273.
In this case, the circuit court crafted an instruction
that advised the jury that it could find Toma guilty if he was an
accomplice of the principal or if the principal was an accomplice
of him, even though HRS § 702-222 requires proof that the
defendant had the prescribed intent and engaged in the requisite
conduct to establish complicity as an accomplice. This
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instruction may have led to the absurd result that the jury found
Toma guilty of the offense entirely based on a finding of another
person’s conduct and intent to be an accomplice of Toma.
Thus, the instruction in this case goes much farther
than the erroneous jury instruction in Aganon--which erred by not
requiring the requisite mental state of the defendant be proven
for each element--by not requiring any proof that Toma had the
requisite mental state or that he exhibited conduct demonstrating
his complicity. The instruction in this case made it possible
that the jury’s finding of guilty was premised entirely on the
intent and conduct of another person. Accordingly, the circuit
court’s theory of accomplice liability was in direct
contravention of HRS § 701-114’s requirement that the State prove
the requisite state of mind as defined in HRS § 702-222.
5. The Erroneous Jury Instructions Adversely Affected Toma’s
Substantial Rights Necessitating Exercise of this Court’s
Authority to Recognize Plain Error.
As stated, the circuit court’s unfounded theory of
accomplice liability deprived Toma of due process under the
United States Constitution and the Hawai#i Constitution, and it
also violated basic principles of our criminal law requiring
criminal theories of liability to be statutorily defined and
proven.
The jury instructions with regard to accomplice
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liability were not only wrong but they were also confusing and
inconsistent. We know, based on the jury’s answers to the
questions on the verdict form, that the jury found Toma guilty of
the offense based on an accomplice theory of liability. By
virtue of the circuit court’s jury instruction, the jury could
have found Toma guilty based on “another person, who [the jury]
unanimously determine[d] to be an accomplice of [Toma].” The
confusion created by the jury’s misstatement of accomplice
liability was particularly problematic in this case because of
the conflicting testimony presented at trial and the numerous
people involved in the fight. Given the nature of the
circumstances of this case, the jury could have convicted Toma
based on the conduct of one of the other employees of the
nightclub, one of the mall security guards, or one of the people
from the crowd surrounding the fight. Under the court’s
erroneous theory of accomplice liability, even if the jury
believed Toma’s testimony that he merely restrained the
complaining witness and asked him to leave, the jury could still
have found him guilty based on another person who committed the
offense and was found to be “an accomplice of” Toma.
The defense, in objecting to the accomplice
instruction, predicted that it would cause “utter confusion on
the part of the jury.” The record indicates that the jury was in
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fact confused with regard to the accomplice instruction; the
jury’s only question for the court during its deliberations asked
the court to “explain the accomplice policy.” The circuit court
responded by referring the jury back to its written instructions,
including its misstatement of accomplice liability.
Although the jury instructions also defined accomplice
correctly, no curative instruction relating to the misstatement
of the law on accomplice liability was given. See State v.
Espiritu, 117 Hawai#i 127, 143, 176 P.3d 885, 901 (2008) (holding
that instructions given by the court correctly stating the law
did not redress a prosecutor’s misstatements of the law absent a
specific curative instruction relating to the misstatements); see
also Basham, 132 Hawai#i at 111, 319 P.3d at 1119 (“[W]hile the
court properly instructed the jury on accomplice liability, that
instruction did not cure the prosecutor’s misstatements of the
law, where no specific curative instruction relating to the
misstatements was given.”).
Further, the court’s error was repeated in both the
written jury instructions and the jury verdict form.17 As
completed by the jury, the jury verdict form rejected a finding
that Toma was a principal that committed the offense, and the
17
The jury verdict form did not include the correct accomplice
definition.
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jury found Toma guilty under a theory of accomplice liability.
It is uncertain whether the verdict was based on the correct
theory of accomplice liability under HRS § 702-222 or on the
court’s unfounded, reverse-accomplice theory.
In light of the circuit court’s uncorrected
misstatement of the law and the jury verdict form indicating that
the jury reached its guilty verdict on the accomplice liability
instruction presented by the court, there is more than a
reasonable possibility that the jury found Toma guilty under the
circuit court’s erroneous theory of accomplice liability. This
is particularly true given the state of the evidence in this
case, including the involvement of multiple actors.
Accordingly, the circuit court’s instruction misstating
accomplice liability adversely affected Toma’s substantial rights
and constituted plain error.18 See Aganon, 97 Hawai#i at 303, 36
18
Although Toma specifically objected to the court’s flawed
accomplice instruction at the circuit court because the instruction would
create “utter confusion on the part of the jury” given that the complaining
witness claimed he was assaulted at various locations by multiple unidentified
people, his position before the ICA and this court was that no accomplice
instruction should have been given at all. Thus, even though he objected to
the jury instruction as confusing at trial, he did not assert on appeal that
the instruction was flawed because it allowed the jury to convict him of the
assault charge if the person who committed the assault was an accomplice of
Toma. However, assuming arguendo that Toma did not preserve his objection for
appeal to the giving of the flawed accomplice instruction by the court, its
submission to the jury and its integration into the verdict form
unquestionably demonstrates that the instructions were not correctly stated,
and “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.” State v. Eberly, 107 Hawai#i
(continued...)
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P.3d at 1273 (finding plain error because “the jury could have
found [defendant] guilty . . . even though it did not find the
requisite state of mind” for each element of the offense based on
the court’s erroneous response to the jury); cf. Yamamoto, 98
Hawai#i at 219, 46 P.3d at 1103 (finding jury instructions were
not harmless where the instruction deprived defendant of a
possible defense and a reasonable possibility existed that the
jury convicted defendant of something that did not even
constitute a crime).
The error in this case arose from the circuit court’s
erroneous modification to the State’s proposed instruction over
the objection of the defense. This court confirmed that “[i]n
our judicial system, the trial courts, not the parties, have the
duty and ultimate responsibility to insure that juries are
properly instructed on issues of criminal liability. Basham, 132
Hawai#i at 110, 319 P.3d at 1118 (quoting State v. Haanio, 94
Hawai#i 405, 415, 16 P.3d 246, 256 (2001)); State v. Kikuta, 125
Hawai#i 78, 90, 253 P.3d 639, 651 (2011) (“[I]t is the duty of
the trial court to ensure that the jury is properly
18
(...continued)
239, 250, 112 P.3d 725, 736 (2005); see State v. Pinero, 75 Haw. 282, 291, 859
P.2d 1369, 1374 (1993) (“An appellate court presume that an instruction
correctly stated the law if no objection to the allegedly erroneous
instruction was made at trial.” (emphasis added)).
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instructed.”); State v. Flores, 131 Hawai#i 43, 56, 314 P.3d 120,
133 (2013) (“[T]he trial courts, not the parties, have the duty
and ultimate responsibility to insure that juries are properly
instructed on issues of criminal liability.”)
Consequently, in reviewing a flawed jury instruction,
“we will vacate, without regard to whether timely objection was
made, if there is a reasonable possibility that the error
contributed to the defendant’s conviction, i.e., that the
erroneous jury instruction was not harmless beyond a reasonable
doubt.” State v. DeLeon, 131 Hawai#i 463, 480, 319 P.3d 382, 399
(2014) (quoting State v. Nichols, 111 Hawai#i 327, 141 P.3d 974(2006).19 As discussed, the jury instruction in this case
misstated accomplice liability so that Toma could have been found
guilty based on a theory of accomplice liability not recognized
19
The plain error standard is also applied when the issue has not
been raised to this court on appeal but the error affects substantial rights
of the defendant. State v. Getz, 131 Hawai#i 19, 27, 313 P.3d 708, 716 (2013)
(vacating and remanding for a new trial based on the circuit court’s failure
to give a specific unanimity decision although the defendant did not raise the
lack of a specific unanimity instruction as a point of error on appeal); State
v. Salas, SCWC-10-123 (Haw. Feb. 12, 2014) (mem.) (invoking plain error and
vacating conviction and remanding for further proceedings where defense
counsel failed to raise a lack of a specific unanimity instruction on appeal);
see also State v. Staley, 91 Hawai#i 275, 286, 982 P.2d 904, 915 (1999)
(addressing the violation of the defendant’s right to testify as plain error
although not raised by defense counsel on appeal); In Interest of Doe, 77
Hawai#i 46, 50, 881 P.2d 533, 537 (1994) (“Although Doe has not raised the
family court’s failure to explain the nature of assault as error with regard
to her waiver of counsel, we may sua sponte notice plain error where it
affects Doe’s substantial rights.”); State v. Fox, 70 Haw. 46, 55, 760 P.2d
670, 675 (1988) (“And we may notice ‘plain error’ even when ‘not presented’ by
the appellant.”).
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by our law. Given the fact that the jury specifically indicated
on the verdict form that Toma was found guilty based on a theory
of accomplice liability there is a reasonable possibility that
the erroneous accomplice instruction contributed to Toma’s
conviction. Thus, the flawed instruction was not harmless beyond
a reasonable doubt.
In conclusion, the circuit court in this case modified
the proposed jury instructions in a manner that misinformed the
jury regarding the applicable criminal law and allowed the jury
to convict him of a felony offense based upon conduct that is not
a crime. The erroneous instruction therefore affected Toma’s
substantial rights and denied him a fair trial.20
Accordingly, the circuit court’s December 18, 2012
Judgment of Conviction of Probation Sentence is vacated, and this
case is remanded to the circuit court for further proceedings.
DATED: Honolulu, Hawai#i, December 21, 2015.
Taryn R. Tomasa /s/ Mark E. Recktenwald
for defendant-appellant
/s/ Sabrina S. McKenna
Brian R. Vincent
for plaintiff-appellee /s/ Richard W. Pollack
20
This court has repeatedly stated that it “will apply the plain
error standard error 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.” See,
e.g., Nichols, 111 Hawai#i at 334, 141 P.3d at 981; see also DeLeon, 131
Hawai#i at 480, 319 P.3d at 399 (same); State v. Taylor, 130 Hawai#i 196, 205,
307 P.3d 1142, 1151 (2013) (same); State v. Walsh, 125 Hawai#i 271, 284, 260
P.3d 350, 363 (2011) (same); Kikuta, 125 Hawai#i at 95, 253 P.3d at 656(same); State v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998) (same).
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