State v. Taylor

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Electronically Filed
Supreme Court
SCWC-30161
19-AUG-2013
08:30 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
________________________________________________________________
STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellee,
vs.
PAMELA L. TAYLOR, Respondent/Defendant-Appellant.
________________________________________________________________
SCWC-30161
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30161; CR. NO. 08-1-0331)
AUGUST 19, 2013
RECKTENWALD, C.J., NAKAYAMA AND MCKENNA, JJ.,
AND CIRCUIT JUDGE GARIBALDI, ASSIGNED BY REASON OF VACANCY;
WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY
AMENDED OPINION OF THE COURT BY MCKENNA, J.
I. Introduction
The State asks us in this appeal to overrule the plurality
opinion in State v. Stenger, 122 Hawai‘i 271, 226 P.3d 441(2010). Despite the apparent confusion regarding its actual
holding, Stenger does not stand for the proposition for which it
is sometimes cited; therefore, we decline to overrule Stenger.
“[A] court should not overrule its earlier decisions unless the
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most cogent reasons and inescapable logic require it.” Johnston
v. KFC Nat’l Mgmt. Co., 71 Haw. 229, 233, 788 P.2d 159, 161
(1990) (internal quotations and citations omitted). Due to the
confusion, however, we do take the opportunity to clarify
Stenger’s holding.
Since Stenger’s publication, our appellate courts have
interpreted the case inconsistently. A dissent to one of our
dispositions notes that Stenger held that a trial court has a
duty to sua sponte give a jury instruction on a defense that the
defendant has not asked for, where there is some evidence
supporting the defense, no matter how weak, inconclusive, or
unsatisfactory the evidence may be. See, e.g., State v. Pang,
No. 29003 (Haw. Aug. 30, 2010) (dissent to order rejecting
application for writ of certiorari) at 1. Many of the
Intermediate Court of Appeals’ (“ICA”) dispositions note that
Stenger held that the trial court has a limited duty to sua
sponte instruct the jury on a particular defense only if (1) it
appears that the defendant is relying on such a defense, or (2)
if there is substantial evidence supportive of such a defense,
and the defense is not inconsistent with the defendant’s theory
of the case, citing the alternative standard that Chief Justice
Moon suggested in dissent. Stenger, 122 Hawai‘i at 299, 226 P.3d
at 469 (Moon, C.J., dissenting). See, e.g., State v. Yue, No.
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29141 (App. Sept. 23, 2010)(SDO) at 7; State v. Metcalfe, No.
30518 (App. Mar. 30, 2012)(mem.) at 15; State v. Mabson, No.
29386, (App. Sept. 28, 2011)(SDO) at 3. Even though unpublished
dispositions of the appellate courts are “not precedent,” they
may nonetheless be “cited for persuasive value.” Hawai‘i Rules
of Appellate Procedure Rule 35(c)(2)(2010). Hence, the need for
clarity is apparent.
In the process of clarifying Stenger, we also reexamine our
holding in State v. Nichols, 111 Hawai‘i 327, 141 P.3d 974(2006). It is this court’s duty to revisit our legal rules from
time to time, as circumstances demand:
Blind adherence to legal rules constitutes an abrogation of
the judicial function. Such blind adherence may result as
much from adoption of a rule without adequate analysis as
from application of a precedent without examination of its
claim to validity. Legal rules should result from, rather
than be a substitute for, legal analysis. Judicial
rumination of ideas in a multitude of factual circumstances
gives birth to rules. And continued rumination insures that
such rules will be applied only as long as they serve the
function for which they were designed.
Columbia Casualty Co. v. Hoohuli, 50 Haw. 212, 217, 437 P.2d 99,
104 (1968). On the issue of how appellate courts are to review
the impact of an unrequested mistake of fact jury instruction,
denominated as error for the first time on appeal, we clarify and
hold that such error is to be reviewed first for plain error. In
the case of an unrequested mistake of fact jury instruction,
plain error exists if the defendant, at trial, had met his or her
initial burden to adduce credible evidence of facts constituting
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the defense (unless those facts are supplied by the prosecution’s
witnesses). See Stenger, 122 Hawai‘i at 280, 226 P.3d at 450
(citing State v. Locquiao, 100 Hawai‘i 195, 206, 58 P.3d 1242,
1253 (2002) and the Commentary to Hawai‘i Revised Statutes
(“HRS”) § 701-115 (1993)). If the omission of the unrequested
mistake of fact jury instruction constitutes plain error, it
shall be a basis for reversal of the defendant’s conviction only
if an examination of the record as a whole reveals that the error
was not harmless beyond a reasonable doubt.
II. Background
A. The Trial1
Respondent/Defendant-Appellant Pamela Taylor was charged by
Felony Information and Non-Felony Complaint with Theft in the
Second Degree, in violation of HRS §§ 708-830(2) (1993)2 and 708-
831(1)(b) (1993)3 (Count I); and Unauthorized Practice of Law,
in violation of HRS §§ 605-144 and -17 (1993 & Supp. 2007)5
1
The Honorable Dexter D. Del Rosario presided.
2
At the time of the alleged offense, as it does now, HRS § 708-830(2)
provided that “[a] person commits theft if the person . . . obtains, or exerts
control over, the property of another by deception with intent to deprive the
other of the property.”
3
At the time of the alleged offense, as it does now, HRS § 708-831(1)(b)
provided that “[a] person commits the offense of theft in the second degree if
the person commits theft . . . [o]f property or services the value of which
exceeds $300[.]”
4
At the time of the alleged offense, as it does now, HRS § 605-14 provided:
Unauthorized practice of law prohibited. It shall be
unlawful for any person, firm, association, or corporation
(continued . . . )
4
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(Count II). The charges stemmed from a period of time in
February 2007 in which Taylor allegedly offered to provide legal
services to Mariko Bereday, and subsequently obtained or exerted
control over a retainer check for $7,000.00 by deception.
Taylor defended against these allegations by asserting that
she herself was a victim of deception. She testified she
believed she was offering legal services to Bereday on behalf of
Ismael Serna Lara6 and Damon Roth, two individuals she assumed
were lawyers working for a firm called Legal Associate Services,
Inc., LLC.
The complaining witness, Mariko Bereday, testified to the
events leading up to Taylor’s prosecution as follows. Bereday’s
friend had referred Taylor to her as an attorney. When Taylor
went to Bereday’s home for their first meeting, Taylor stated she
was previously a federal public defender but was currently an
attorney working at a 35-person law firm.
(. . . continued)
to engage in or attempt to engage in or to offer to engage
in the practice of law, or to do or attempt to do or offer
to do any act constituting the practice of law, except and
to the extent that the person, firm, or association is
licensed or authorized so to do by an appropriate court,
agency, or office or by a statute of the State or of the
United States. Nothing in sections 605-14 to 605-17
contained shall be construed to prohibit the preparation or
use by any party to a transaction of any legal or business
form or document used in the transaction.
5
At the time of the alleged offense, as it does now, HRS § 605-17 provided
that a violation of HRS § 605-14 is a misdemeanor. Taylor was acquitted on
the Unauthorized Practice of Law count.
6
Serna Lara was named as a co-defendant in the information and complaint
but could not be located for trial.
5
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Taylor went to Bereday’s home again with a retainer
agreement, which Bereday did not sign, and asked for a $30,000
retainer. Because Bereday could only afford $7,000, she wrote
out a check in that amount, with the payee line blank at Taylor’s
direction. The very next day, Taylor called her from the bank
where Taylor was attempting to cash the check. Bereday asked
Taylor why the check had to be cashed, and Taylor stated that her
boss wanted to make sure Bereday’s money was good.
That morning, $7,000.00 was drawn on Bereday’s account.
Bereday later became suspicious and asked the bank to see the
copy of the check. Bereday was surprised to see Serna Lara’s
name on the payee line, having never dealt with him.
After learning that there was no such law firm as Legal
Associate Services, Inc., LLC and that Taylor was not an
attorney, Bereday confronted Taylor and demanded her money back.
Taylor returned to Bereday’s home with a Capitol One check for
$7,000.00 with Taylor’s “law number” written on it. The check
turned out to be a “bogus” check not connected to any checking
account. Bereday never got her money back.
Other witnesses for the State testified consistently with
Bereday’s testimony. Julie Tablit, a customer service manager at
the Kapolei Branch of Central Pacific Bank (“CPB”), testified
that Taylor took the lead in attempting to cash Bereday’s
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$7,000.00 check. Tablit testified that a male and a female (whom
she later positively identified through photographic line-ups as
Serna Lara and Taylor, respectively) presented a questionable
check to one of the bank tellers. The teller called Tablit over
because the check amount was over her cashing limit, and Tablit
spoke with Taylor, who stated that the check was for “payment or
service that was rendered to Ms. Bereday.” Tablit attempted to
speak with Serna Lara, but Taylor informed her that he did not
speak English. According to Tablit, Serna Lara did not do
anything or say anything during the five minutes that Tablit and
Taylor spoke. That day, Tablit also confirmed Serna Lara’s
identity through his Hawai‘i drivers license. Serna Lara also
inked his thumbprint upon the check, per bank procedures. Tablit
could not reach Bereday by phone, so she refused to cash the
check and directed Taylor and Serna Lara to the Kahala Times
Supermarket in-store branch of CPB, Bereday’s home branch, for
further action.
Stephanie Hirayama, the manager of that branch, testified
that a male and a female (whom she did not rule out in a later
photographic lineup as Serna Lara and Taylor), came in to cash
the $7,000.00 check. Even though Serna Lara was the payee,
Taylor did all the talking. Hirayama testified that Bereday, by
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phone, authorized her to cash the check, and that Taylor was the
one who took the $7,000.00 cash off the counter.
Glenn Taniguchi, an accountant and attorney who had a long-
standing professional relationship with Bereday, testified that
he also discovered Taylor was not listed in the bar directory.
When he confronted Taylor with that fact, Taylor told him she was
listed under her maiden name, Pamela Merch. Taniguchi confirmed
that a “Pamela Merch” was an inactive attorney. Unable to reach
Merch under the Maryland telephone number in the bar directory,
Taniguchi abandoned his efforts to confirm Taylor’s credentials.
Taniguchi later demanded that Taylor return the $7,000.00 in the
form of a cashier’s check or cash to Bereday by a date certain,
which Taylor agreed to do but did not do. Instead, Bereday
received the bogus $7,000.00 check from Taylor.
Although the State provided no evidence concerning Roth, the
State did provide evidence that there was no such business entity
by the name of Legal Associate Services, Inc., LLC, and that
Serna Lara was not an attorney.
Testimony regarding Serna Lara came from David Wong, the
owner-operator of the former Mountain View Dairy in Wai#anae. He
testified that Serna Lara had been a full-time cow-milker for
about ten years at the time of the alleged theft. Wong testified
that Serna Lara lived in the employee housing complex on-site.
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Wong stated that he had seen Taylor at Serna Lara’s home before.
Wong testified that Serna Lara was not a licensed attorney, did
not work for a law firm, did not run a law office out of his
employee housing, and never mentioned anything about working at a
law firm. Put plainly, Serna Lara was “[j]ust a milker.”
Taylor testified in her own defense. She testified that she
graduated from the David A. Clarke School of Law in Washington,
D.C. in 1998, moved to Hawai‘i in 2000, but never took the
Hawai‘i bar exam. Taylor never disputed that she was not
licensed to practice law in Hawai‘i. Taylor denied telling
Bereday or Taniguchi she was an attorney.
Taylor testified generally that she took direction from
Serna Lara and Roth. Taylor testified that Bereday spoke by
phone with Roth multiple times and directed that her $7,000.00
check be turned over to Roth. Unable to reach Roth, Taylor
instead turned the check over to Serna Lara and later met up with
him at the Kapolei CPB branch. After Tablit refused to cash the
check, Taylor and Serna Lara went to the Kahala CPB branch, where
Hirayama cashed the check and handed the money to Serna Lara.
Taylor testified that she never touched the money and did not
know what happened to the $7,000.00 in cash.
Taylor testified that Serna Lara instructed her to visit
Bereday’s home again to deliver a receipt for the check and other
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paperwork. After Bereday demanded a refund of the $7,000.00,
Serna Lara became “infuriated,” wrote out a refund check, and
directed Taylor to deliver the check to Bereday, which Taylor
did.
Taylor testified that she believed Serna Lara and Roth were
attorneys because she met them through a mutual attorney friend,
Pamela Merch. She said she believed Roth was an attorney because
he did not agree to meet with Taylor until Merch was on-island to
make the formal introduction at Roth’s Queen Street office. She
allegedly believed Serna Lara was an attorney because when she
met him, he was “professional-looking” and “average articulate”
in his use of English. Taylor testified that she filled out a
job application, was hired by Roth and Serna Lara in 2006, did
clerical work for both, and was paid by check per assignment.
She testified that she had visited Serna Lara at the dairy
farm, and he explained that “he was an overseer of a set of the
farmers,” a job he held in addition to his work as an attorney at
the law firm. On cross-examination, the State pointed out
photographic evidence that Serna Lara was not dressed
professionally (i.e., he was dressed in a shirt and shorts) when
he and Taylor attempted to cash the check on a regular business
day in the middle of the day. Taylor testified that she did not
find his manner of dress curious.
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She testified that she did not know Roth and Serna Lara were
not attorneys with a legitimate law firm. Taylor testified that
she understood the process of becoming a licensed attorney but
never confirmed whether Serna Lara or Roth were licensed to
practice law in Hawai‘i.
The defense did not submit any jury instructions. All of
the court’s jury instructions were given by agreement. There was
no instruction on mistake of fact.
The jury found Taylor guilty of theft in the second degree
but acquitted her of unauthorized practice of law. The trial
court issued its Judgment of Conviction and Sentence, sentencing
Taylor to five years of incarceration and restitution of
$7,000.00 to Bereday. Taylor timely appealed.
B. The Appeal
For the first time on appeal, Taylor argued, “The trial
court reversibly erred in sua sponte failing to instruct the jury
on the mistake-of-fact defense as to Theft2-Deception.”
Specifically, Taylor argued that she was operating under the
mistaken belief that she
was acting on behalf of attorneys Serna Lara and Roth. . . .
Since Taylor was mistaken as to the facts that Roth and
Serna Lara (1) were not attorneys, (2) were not members of a
35-person law firm, and (3) were ineligible to practice law,
she was entitled to a “mistake of fact” instruction. In
other words, Taylor did not commit Theft2 by deception
because she did not accept Bereday’s check, knowing that
Roth and Serna Lara intended to take the money without
rendering legal services to Bereday.
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Taylor further cited to Stenger, 122 Hawai#i 271, 226 P.3d
441, which was decided after she was convicted, for the
proposition that, where some evidence was adduced that the
defendant was laboring under a mistake of fact that could negate
the state of mind necessary to commit theft, the trial court was
required to sua sponte instruct the jury on the mistake of fact
defense, and the court’s failure to so instruct the jury was not
harmless beyond a reasonable doubt. Taylor concluded by
requesting that the ICA vacate her Theft2-Deception conviction
and remand the case for a new trial, with an order that the court
instruct the jury on the mistake of fact defense.
The State’s Answering Brief focused on Stenger. The State
argued that Stenger was wrongly decided, for reasons set forth in
the Stenger dissent, authored by Justice Nakayama and joined by
Chief Justice Moon. Those reasons were that requiring a sua
sponte mistake of fact jury instruction (1) requires the trial
court to advocate for the criminal defendant by identifying, and
therefore highlighting, all possible defenses to the jury; (2)
implicitly requires that the State (in order to stave off
automatic retrial) request an instruction on potentially all
defenses that are supported by any piece of weak evidence in the
record; and (3) incentivizes defense counsel not to request a
mistake-of-fact instruction in order to “receive an automatic
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retrial” when the issue is raised on appeal. In conclusion, the
State requested that the ICA affirm Taylor’s conviction.
The ICA held, “Based on [Stenger], we conclude that the
Circuit Court erred in failing to instruct the jury on Taylor’s
mistake-of-fact defense and that such error was not harmless
beyond a reasonable doubt.” State v. Taylor, No. 30161 (App.
Feb. 29, 2010)(SDO) at 2. The ICA therefore vacated the trial
court’s judgment of conviction and sentence and remanded the case
for a new trial on the charge of second-degree theft by
deception. See id.The State now renews its request that this court overrule
Stenger.
III. Discussion
A. The Mistake of Fact Defense
Taylor was charged with Theft in the Second Degree, by
Deception, in violation of HRS § 708-830(2), which states, “A
person commits theft if the person . . . obtains, or exerts
control over, the property of another by deception with intent to
deprive the other of the property,” and in violation of HRS §
708-831(1)(b), the value of the property or services having
exceeded $300. “Deception” is further defined, in relevant part,
in HRS § 708-800 (1993) as knowingly “[c]reat[ing] or
confirm[ing] another’s impression which is false and which the
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defendant does not believe to be true,” “[f]ail[ing] to correct a
false impression which the person previously has created or
confirmed,” or “[p]romis[ing] performance which the person does
not intend to perform or knows will not be performed. . . .”
Mistake of fact can be a defense to Theft in the Second
Degree. This defense is provided by statute:
Ignorance or mistake as a defense. In any prosecution for
an offense, it is a defense that the accused engaged in the
prohibited conduct under ignorance or mistake of fact if:
(1) The ignorance or mistake negatives the state of mind
required to establish an element of the offense; or
(2) The law defining the offense or a law related thereto
provides that the state of mind established by such
ignorance or mistake constitutes a defense.
HRS § 702-218 (1993) (emphasis added).
B. State v. Stenger
Our most recent case expounding on mistake of fact
instructional error is Stenger, 122 Hawai‘i 271, 226 P.3d 441.
In that case, Petitioner/Defendant-Appellant Angela Stenger was
charged and convicted of Theft in the First Degree for allegedly
taking $23,034 in welfare benefit overpayments. 122 Hawai‘i at
276, 226 P.3d at 446. The State alleged that Stenger obtained
the overpayments by deceiving the Department of Human Services
(“DHS”) when she failed to report that her children were not
living with her and failed to report her income from substitute
teaching, from her surf school, and via inheritance. 122 Hawai‘i
at 275-76, 226 P.3d at 445-46. At trial, Stenger requested a
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claim of right instruction on the basis that Stenger “believed
she was entitled to the benefits that she obtained and exerted
control over[.]” 122 Hawai‘i at 276, 226 P.3d at 446. The trial
court denied the request. Id.Stenger appealed her conviction to the ICA, arguing that the
trial court erred by refusing to give the requested claim of
right instruction and “fail[ed] sua sponte to give a mistake-of-
fact instruction[.]” Id. In other words, Stenger raised the
lack of an explicit mistake of fact instruction for the first
time before the ICA. The ICA vacated the trial court’s judgment
of conviction and remanded Stenger’s case for a new trial. 122
Hawai‘i at 277, 226 P.3d at 447. It held that the trial court
erred in denying Stenger’s requested claim of right instruction.
122 Hawai‘i at 276-77, 226 P.3d at 446-47. It also held that
Stenger was not entitled to a mistake of fact instruction because
her claimed mistake concerned what she was required to report,
which the ICA considered to be a mistake of law and no defense.
122 Hawai‘i at 277, 226 P.3d at 447.
On certiorari, Stenger pressed the mistake of fact issue,
arguing that the ICA gravely erred in concluding she was not
entitled to the instruction. Id. Stenger acknowledged that she
did not request an explicit mistake of fact instruction at trial,
but she argued that the evidence adduced at trial supported the
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instruction, and that the trial court’s failure to give the
instruction was not harmless beyond a reasonable doubt. Id.Stenger argued that she labored under the following mistake of
fact: “if she believed she was complying with the reporting
requirements by virtue of the items she did report to DHS, then
she could not have ‘knowingly’ created or failed to correct a
false impression.” 122 Hawai‘i at 280, 226 P.3d at 450.
A plurality of this court agreed with Stenger. The
plurality concluded that the trial court’s “failure to instruct
on the defense of mistake of fact” was not harmless beyond a
reasonable doubt because there was a “reasonable possibility that
the jury, if provided with a separate mistake of fact
instruction, could have found that [Stenger] believed she
complied with the reporting requirements and, thus, did not
knowingly deceive DHS.” 122 Hawai‘i at 282-83, 226 P.3d at 452-
53 (following the analytical framework set forth in Nichols, 111
Hawai‘i 327, 141 P.3d at 974).
In reaching this conclusion, the Stenger plurality first
favorably cited Locquiao, 100 Hawai‘i at 206, 58 P.3d at 1253 and
the commentary to HRS § 701-115 for the following proposition:
With respect to defenses that negate penal liability, the
defendant has the initial burden to adduce ‘credible
evidence of facts constituting the defenses, unless those
facts are supplied by the prosecution’s witnesses.’
122 Hawai‘i at 280, 226 P.3d at 450.
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The plurality noted that Locquiao held that “where a
defendant has adduced evidence at trial supporting an instruction
on the statutory defense of ignorance or mistake of fact, the
trial court must, at the defendant’s request, separately instruct
as to the defense, notwithstanding that the trial court has also
instructed regarding the state of mind requisite to the charged
offense.” 122 Hawai‘i at 281, 226 P.3d at 451 (citing Locquiao,
100 Hawai‘i at 208, 58 P.3d at 1255) (emphasis added)). This is
so, “no matter how weak, inconclusive, or unsatisfactory the
evidence [as to the defendant’s mistake of fact] may be.” 122
Hawai‘i at 281, 226 P.3d at 451. See also State v. Stocker, 90
Hawai‘i 85, 94 n.10, 976 P.2d 399, 408 n.10 (1999) (“To meet his
[or her] initial burden of production [on a non-affirmative
defense, including mistake of fact], the defendant need only come
forward with “‘some’ evidence, ‘no matter how weak, inconclusive,
or unsatisfactory the evidence may be.’”)
It was no accident that the plurality turned to Locquiao, a
case involving a mistake of fact instruction requested by the
defendant at trial but denied by the trial court. Stenger argued
that she “did request a claim of right instruction, which is a
subspecies of mistake of fact, and, therefore, . . . that request
should be construed liberally to encompass a request for mistake
of fact.” 122 Hawai‘i at 281 n.13, 226 P.3d at 451 n.13. The
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Stenger plurality construed Stenger’s mistake of fact instruction
to have been “requested” by the defendant at trial as
“encompass[ed]” in her request for a claim of right instruction.
122 Hawai‘i at 284, 226 P.3d at 454.
The plurality explained that the claim of right defense is a
“particular type of mistake of fact that would be logically
encompassed under a general mistake of fact instruction.” Id.Specifically, a claim of right instruction would be appropriate
where the defendant asserts “(1) some form of pre-existing
ownership or possession of (2) specific property.” 122 Hawai‘i
at 285, 226 P.3d at 455. Based on the evidence presented, the
Stenger plurality concluded that it was a mistake of fact defense
Stenger asserted at trial, not a claim of right defense. Id.As Judge Kim emphasized in his concurrence, “I would contend
that . . . the defense in the instant case did essentially
request a jury instruction on the mistake of fact defense when it
mistakenly requested one on claim of right. . . . In effect, the
defense had the theory right, but the specific instruction wrong,
and the trial court, while correctly recognizing the latter,
mistakenly failed to recognize the former[.]” 122 Hawai‘i at
296, 226 P.3d at 466 (Kim, J., concurring) (emphasis added). One
of the dissents recognized that, had Stenger explicitly requested
the mistake of fact jury instruction, under Locquiao, the trial
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court would have been required to so instruct. 122 Hawai‘i at
300 n.1, 226 P.3d at 470 n.1 (Nakayama, J., dissenting)
The Stenger plurality could have expressly stated that a
trial court has a duty to correct an erroneous request for a jury
instruction where the theory of the defense clearly implicates
another jury instruction. See State v. Faria, 100 Hawai‘i 383,
390, 60 P.3d 333, 340 (2002) (“[F]aced with inaccurate or
incomplete instructions, the trial court has a duty to, with the
aid of counsel, either correct the defective instructions or to
otherwise incorporate it into its own instructions.”); State v.
Vanstory, 91 Hawai‘i 33, 42, 979 P.2d 1059, 1068 (1999) (“If the
instructions requested by the parties are inaccurate or
incomplete but are necessary ‘in order for the jury to “have a
clear and correct understanding of what it is that they are to
decide[,]”’ then the trial court has the duty either to correct
any defects or to fashion its own instructions.”) (citing State
v. Okumura, 78 Hawai#i 383, 411, 894 P.2d 80, 108 (1995)); State
v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998) (same).
Upon review, then, Stenger actually determined that (1) a
trial court has a duty to properly instruct the jury on mistake
of fact in the face of a requested but erroneous jury instruction
on claim of right; and (2) the mistake of fact jury instruction
was further required to be given because the defendant
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“requested” it and raised some evidence in support of the
defense. Read this way, Stenger did not actually disrupt our
instructional error precedent to the extent feared by the dissent
in that case. See 122 Hawai‘i at 306, 226 P.3d at 476 (Nakayama,
J., dissenting) (interpreting Stenger to require a trial court to
“instruct the jury sua sponte as to all defense instructions that
may possibly be implicated by the facts”). Read this way, it
also would not have been necessary for Chief Justice Moon to
propose an alternative test, which has since been inconsistently
adopted by the ICA in appeals raising instructional error. See
122 Hawai‘i at 298, 299, 226 P.3d at 468, 469 (Moon, C.J.,
dissenting) (“[T]he trial court has a limited duty to sua sponte
instruct the jury on a particular defense if (1) it appears that
the defendant is relying on such a defense, or (2) if there is
substantial evidence supportive of such a defense and the defense
is not inconsistent with the defendant’s theory of the case.”)
(citing People v. Barton, 906 P.2d 531, 535 (Cal. 1995)).
Rather, as to requested jury instructions, Stenger reaffirmed the
trial court’s duty to correct erroneously requested jury
instructions, and reaffirmed that a defendant is entitled to a
requested jury instruction on a defense when he presents some
evidence going to the defense.
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C. State v. Nichols
Thus, Stenger does not stand for the proposition that it has
become cited for: that a trial court errs in failing to sua
sponte give a jury instruction unrequested by the defendant at
trial; Nichols, however, does. 111 Hawai‘i 327, 141 P.3d 974.
Thus, Nichols is actually dispositive of Taylor’s appeal, and we
take the opportunity to revisit that case. In Nichols, the
defendant (“Nichols”) was charged with and convicted of
Terroristic Threatening in the First Degree in violation of HRS §
707-716(1)(c) (1993). 111 Hawai‘i at 328-29, 141 P.3d at 975-76.
On certiorari, Nichols argued, inter alia, that the trial
court erred in not instructing the jury that they could compare
the “relevant attributes” between him and the complaining witness
(a police officer) to determine whether the complaining witness
objectively, reasonably felt threatened. 111 Hawai‘i at 329, 141
P.3d at 976. As with Taylor, the error in Nichols was raised for
the first time on appeal, as Nichols had not requested the
instruction at trial, and no such instruction was given to the
jury. 111 Hawai‘i at 333, 339 n.7, 141 P.3d at 980, 986 n.7.
In reversing Nichols’ conviction, this court held
[A]lthough as a general matter forfeited assignments of
error are to be reviewed under the [Hawai‘i Rules of Penal
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Procedure (“HRPP”)] Rule 52(b) [7] plain error standard of
review, in the case of erroneous jury instructions, that
standard of review is effectively merged with the HRPP Rule
52(a) [8] harmless error standard of review because it is the
duty of the trial court to properly instruct the jury. As a
result, once instructional error is demonstrated, 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.
111 Hawai‘i at 337, 141 P.3d at 984. We stated the new “merger”
rule “flow[ed] from this court’s holding in Haanio9 that the duty
to instruct the jury ultimately lies with the trial court[.]”
111 Hawai‘i at 335-36, 141 P.3d at 982-83 (footnote omitted).
We reiterate that it is the trial court’s duty to
properly instruct the jury. However, in the case of a jury
7
Under HRPP Rule 52(b) (1977), “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the
attention of the court.”
8
Under HRPP Rule 52(a) (1977), “Any error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded.”
9
Upon further review, however, State v. Haanio, 94 Hawai‘i 405, 16 P.3d
246 (2001), did not necessarily compel the holding in Nichols, which Stenger
adopted. Stenger, 122 Hawai‘i at 281, 226 P.3d at 451. Haanio held “that
trial courts must instruct juries as to any included offenses when ‘there is a
rational basis in the evidence for a verdict acquitting the defendant of the
offense charged and convicting the defendant of the included offense[.]’”
Haanio, 94 Hawai‘i at 413, 16 P.3d at 254. This is so “despite any objection
by the defense, and even in the absence of a request from the prosecution.”
Id. In other words, “trial courts are duty bound to instruct juries ‘sua
sponte . . . regarding lesser included offenses’ . . . having a rational basis
in the evidence.” 94 Hawai‘i at 415, 16 P.3d at 256 (citation omitted).
There is a clear difference between requiring sua sponte jury
instructions on lesser included offenses versus defenses, in terms of the
burden upon the trial court, and in terms of the effect upon trial strategy.
See, e.g., State v. Auld, 114 Hawai‘i 135, 148, 149, 157 P.3d 574, 587, 588
(App. 2007) (“A rule requiring the court to give a self-defense instruction
even if deliberately not requested by the defense would put the trial court in
a difficult position . . . Permitting a defendant to exercise a measure of
strategic control over whether the jury is instructed on self-defense . . .
would simply allow the defendant to focus the jury’s attention. . . .”)
(Nakamura, J., concurring and dissenting).
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instruction that is not requested at trial, the omission of which
is later denominated as error for the first time on appeal, the
Nichols’ “merger” holding should also be clarified.
Upon further examination of this case, it appears that the
Nichols court, despite its “merger” holding, continued to engage
in a two-step, plain-error-then-harmless error review in
analyzing instructional error. Nichols observed that the
defendant must first overcome the presumption that the
instructions as given were correct. 111 Hawai‘i at 337 n.6, 141
P.3d at 984 n.6. Once instructional error is demonstrated, the
defendant must then show that that there was a reasonable
possibility that the erroneous jury instruction contributed to
his or her conviction, i.e., that the instructional error was not
harmless beyond a reasonable doubt. See 111 Hawai‘i at 337, 141
P.3d at 984.
The first step in the Nichols analysis was our determination
that “the circuit court’s failure to give a ‘relevant attributes’
instruction was plain error[.]” 111 Hawai‘i at 338, 141 P.3d at
985 (emphasis added). This was so because under State v.
Valdivia, the failure to instruct on relevant attributes in a
terroristic threatening case is reversible error in any event,
whether or not the relevant attributes instruction is requested
(as it was in Valdivia) or unrequested (as it was in Nichols).
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95 Hawai‘i 465, 479, 24 P.3d 661, 675 (2001) (concluding that the
omission of an instruction on relevant attributes was error
because “the jury . . . should have been instructed that it could
consider relevant attributes of both the defendant and the
[complaining witness] in determining whether the [complaining
witness’s] fear of bodily injury . . . was objectively reasonable
under the circumstances. . . .”)
The next step in the Nichols analysis was our determination
that “there is a reasonable possibility that the error
contributed to Nichol’s conviction, i.e., the error was not
harmless beyond a reasonable doubt.” 111 Hawai‘i at 338, 141
P.3d at 985 (emphasis added). Thus, it would appear that, rather
than “merging” the two standards of review, the Nichols court
retained the two-step plain-error-then-harmless-error inquiry.
Thus, in the case of a mistake of fact jury instruction that
is not requested and not given at trial, the omission of which is
denominated as error for the first time on appeal, we clarify
that the plain error standard continues to apply. Plain error
exists “[i]f the substantial rights of the defendant have been
affected adversely[.]” State v. Kikuta, 125 Hawai‘i 78, 95, 253
P.3d 639, 656 (2011). This court “will apply the plain error
standard of review to correct errors [that] seriously affect the
fairness, integrity, or public reputation of judicial
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proceedings, to serve the ends of justice, and to prevent the
denial of fundamental rights.” Id. (citations omitted).
In the case of a jury instruction on mistake of fact that is
not requested by the defense and not given by the trial court,
plain error affecting substantial rights exists if the defendant
had met his or her initial burden at trial of adducing credible10
evidence of facts constituting the defense (or those facts are
supplied by the prosecution’s witnesses). See Stenger, 122
Hawai‘i at 280, 226 P.3d at 450 (citing Locquiao, 100 Hawai‘i at
206, 58 P.3d at 1253 and the Commentary to HRS § 701-115). See
id.
We draw our holding from HRS § 701-115(2) and its
Commentary. HRS § 701-115 (1993) provides:
10
By “credible” evidence we mean evidence “offering reasonable grounds for
being believed.” Webster’s Ninth New Collegiate Dictionary 305 (1988). The
Dissent defines “credible” to mean “not incredible, that is, not ‘too
extraordinary and improbable to be believed[.]’” Dissent at n.11 (citing
Merriam Webster’s Collegiate Dictionary 590 (10th ed. 1993)). Respectfully,
we have already opined that evidence that is “not credible,” as Taylor’s was,
could merely be “plausible (and, therefore, not incredible),” just not
entirely believable.” State v. Maelega, 80 Hawai#i 172, 178 n.9, 907 P.2d
758, 764 n.9 (1995).
We are aware that “credibility” is usually associated with subjective
believability. See, e.g., State v. West, 95 Hawai#i 452, 464, 24 P.3d 648,
660 (2001) (“[A]ppellate courts must objectively review all the evidence and
avoid commenting on its subjective believability, especially the credibility
of the witnesses.”) Appellate courts are, however, sometimes required to
employ credibility determinations. For example, “[w]hen an appellate court
reviews the sufficiency of the evidence, it examines whether there was
substantial evidence to support the conclusion of the trier of fact. . . .
Substantial evidence as to every material element of the offense charged is
credible evidence which is of sufficient quality and probative value to enable
a person of reasonable caution to support a conclusion.” State v. Gomes, 117
Hawai#i 218, 226, 177 P.3d 928, 936 (2008) (citation omitted). Thus, in the
current context, we examine whether the defendant met her initial burden to
adduce evidence with reasonable grounds for being believed.
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Defenses. (1) A defense is a fact or set of facts which
negatives penal liability.
(2) No defense may be considered by the trier of fact unless
evidence of the specified fact or facts has been
presented. If such evidence is presented, then:
(a) If the defense is not an affirmative defense, the
defendant is entitled to an acquittal if the trier of fact
finds that the evidence, when considered in the light of any
contrary prosecution evidence, raises a reasonable doubt as
to the defendant’s guilt; or
(b) If the defense is an affirmative defense, the defendant
is entitled to an acquittal if the trier of fact finds that
the evidence, when considered in light of any contrary
prosecution evidence, proves by a preponderance of the
evidence the specified fact or facts which negative penal
liability.
(3) A defense is an affirmative defense if:
(a) It is specifically so designated by the Code or another
statute; or
(b) If the Code or another statute plainly requires the
defendant to prove the defense by a preponderance of the
evidence.
The Commentary to HRS § 701-115 provides, in full:
The Code establishes two classes of defenses. As to
both, it places an initial burden on the defendant to come
forward with some credible evidence of facts constituting
the defense, unless, of course, those facts are supplied by
the prosecution’s witnesses.
As to the burden of persuasion, two different rules
are codified. In the case of defenses which are not
affirmative, the defendant need only raise a reasonable
doubt as to the defendant’s guilt. The other side of the
coin is that the prosecution must prove beyond a reasonable
doubt facts negativing the defense. The prosecution in fact
does this when the jury believes its case and disbelieves
the defense.
In the case of affirmative defenses, the burden on the
defendant increases. Now the defendant must prove by a
preponderance of the evidence facts which negative the
defendant’s penal liability. Subsection (4) defines
“affirmative defense,” making it clear that this type of
defense needs special legislative prescription. Unless the
Legislature has made a particular defense affirmative, the
defendant’s burden is only to raise a reasonable doubt. 11
11
The dissent states that the majority “preemptively shifts the burden of
persuasion to the defendant at a point in the litigation where the defendant
is only required to satisfy the burden of production.” Dissent at V.B.
However, the commentary actually states that the defendant must “come forward
with some credible evidence of facts constituting the defense,” and the phrase
“come forward” clearly elaborates upon the statute’s requirement that the
defendant “present[]” “evidence of the specified fact or facts” before the
(continued . . . )
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Contrary to the Dissent’s assertion, Maelega, 80 Hawai‘i
172, 907 P.2d 758, did not invalidate the Commentary to HRS §
701-115. Dissent at VI.A. In that case, the defendant
(“Maelega”), who was tried for murder, requested a jury
instruction on extreme mental and emotional disturbance (“EMED”).
80 Hawai‘i at 174, 907 P.2d at 760. We observed that the
requirement in State v. Nobriga, 10 Haw. App. 353, 359, 873 P.2d
110, 113 (1994), that the defendant come forward with credible
evidence was inconsistent with this court’s holding in State v.
Pinero, 75 Haw. 282, 304, 859 P.2d 1369, 1379 (1993), that even
“weak, inconclusive, or unsatisfactory” evidence supports the
giving of a defense instruction. That much remains true as to
requested defense instructions, which Maelega’s was.
The primary issue in Maelega, however, was not the meaning
of the Commentary but whether the circuit court’s modified
instruction on the defendant’s requested EMED defense, which
included language drawn from the Commentary, impermissibly
(. . . continued)
trier of fact considers a defense. In other words, “credible evidence” in the
Commentary refers to the defendant’s burden of production, not persuasion. In
fact, the next paragraph in the Commentary states the “burden of persuasion”
is identified as belonging to the State or to the defendant, depending upon
whether the defense is an affirmative or non-affirmative defense. Thus, the
Commentary still provides helpful guidance as to the defendant’s burden of
coming forward with credible evidence to constitute a defense. Contrary to
the Dissent’s assertion, this interpretation of the Commentary to HRS § 701-
115 is still viable. Dissent at VI.A. As recently as Locquiao and Stenger,
we continued to favorably cite to the Commentary to HRS § 701-115. See
Locquiao, 100 Hawai#i at 206, 58 P.3d at 1253; Stenger, 122 Hawai#i at 280, 226
P.3d at 450.
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shifted the burden of proof onto the defendant. Maelega, 80
Hawai‘i at 176, 907 P.2d at 762. The modified instruction read
as follows:
The defense of extreme mental or emotional disturbance
places the initial burden on the defendant to come forward
with some credible evidence of fact constituting a defense
unless those facts are supplied by the prosecution’s
witnesses. If this occurs, the prosecution must then prove
beyond a reasonable doubt that the defendant was not at the
time of the offense under the influence of extreme mental or
emotion [sic] disturbance for which there is a reasonable
explanation.
80 Hawai‘i at 176, 907 P.2d at 762 (emphasis in original).
We held that this instruction “impliedly instructed the jury
that the burden under HRS § 701-115(2) was a question of fact for
the jury to decide,” i.e., that the jury was to decide whether
Maelega came forward with some credible evidence of facts
constituting the EMED defense. 80 Hawai‘i at 177, 907 P.2d at
763. We held that the circuit court should not have instructed
the jury on Maelega’s “burden of production. . . .” Id. Rather,
the jury should have been instructed only as to the State’s
ultimate burden of persuasion to negative Maelega’s EMED defense
beyond a reasonable doubt. Id.We stated that it was not the jury’s job to “conclude[] that
Maelega’s purported defense was not credible,” because “it is not
the province of the jury to second guess the judge’s decision to
instruct on EMED manslaughter. . . .” 80 Hawai‘i at 178 n.9, 179
n.10, 907 P.2d at 764 n.9, 765 n.10. Rather, we held that
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whether the defendant’s burden of production “has been met is a
question that should be decided by the trial court as a matter of
law.” 80 Hawai‘i 179 n.10, 907 P.2d at 765 n.10; see also 80
Hawai#i at 177 n.8, 907 P.2d at 763 n.8 (characterizing the trial
court’s determination that a defendant has met his initial burden
of producing “some credible evidence of facts constituting the
defense” as calling for a “legal conclusion.”). In Maelega, we
believed that the circuit court had, by giving the EMED
instruction to the jury, “implicitly acknowledged that, based on
the record, a reasonable juror could harbor a reasonable doubt as
to whether Maelega acted while under an extreme emotional
disturbance for which there was a reasonable explanation when he
killed [the victim.]” 80 Hawai‘i at 177, 907 P.2d at 763.
Therefore, the role of the trial court in deciding to give a jury
instruction on a requested non-affirmative defense is to resolve
a question of law based on an objective juror standard.
Synthesizing and applying HRS § 701-115, its Commentary, and
Maelega in the context of this case, we hold that, in the case of
an unrequested mistake of fact jury instruction denominated as
error for the first time on appeal, HRS § 701-115(2) and its
accompanying Commentary place the burden of production on the
defendant to present evidence of the specified fact or facts
going to the defense. In other words, the defendant must have
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come forward at trial with credible evidence of facts
constituting the defense, unless those facts were supplied by the
prosecution’s witnesses. Further, “credible evidence” in this
context means that the circuit court should have concluded, based
on the record that existed at trial, that the evidence “offered
reasonable grounds for being believed,” i.e., that “a reasonable
juror could harbor a reasonable doubt” as to the defendant’s
guilt, and should have given the unrequested mistake of fact jury
instruction. Failure to give the mistake of fact jury
instruction under these circumstances constitutes plain error.12
This is so, because a defense like mistake of fact is
capable of “negativ[ing] the state of mind required to establish
an element of the offense,” thus capable of avoiding conviction.
HRS § 702-218 (1993); see also HRS § 701-114(1)(b) (1993) (“[N]o
person may be convicted of an offense unless the following are
proved beyond a reasonable doubt: . . . The state of mind
required to establish each element of the offense[.]”).
This court may notice as plain error the omission of a
mistake of fact jury instruction if it appears that the defendant
12
In this regard, we disagree with the Dissent that weak, inconclusive, or
unsatisfactory evidence going to a particular defense is always “apparent” to
the trial court in a bench or jury trial. Dissent, Section V.A. It is more
likely the case that weak, inconclusive, or unsatisfactory evidence would
become “apparently” relevant to a particular defense when the defendant
requests the defense and the trial court’s attention is drawn to such evidence
in the record. Absent such a request, due to its nature, weak, inconclusive,
or unsatisfactory evidence relevant to an unstated defense may not necessarily
take on any apparent significance during trial.
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has come forward with credible13 evidence going to the defense
that the jury should have been able to consider, as such an error
“seriously affects the fairness, integrity, or public reputation
of judicial proceedings,” and it would “serve the ends of
justice” and “prevent the denial of fundamental rights” to
address such an omission. Kikuta, 125 Hawai‘i at 95, 253 P.3d at
656. In such an instance, where the omission of the mistake of
fact jury instruction constitutes plain error, it shall be a
basis for reversal of the defendant’s conviction only if an
examination of the record as a whole reveals that the error was
not harmless beyond a reasonable doubt.
D. Taylor’s Appeal
Turning to Taylor’s appeal, the absence of a jury
instruction on mistake of fact was not plain error, because
Taylor had not met her initial burden of adducing credible14
evidence of facts constituting the defense, and those facts were
not supplied by the prosecution’s witnesses. Taylor’s testimony
that she believed Roth and Serna Lara were attorneys after she
met them through Pamela Merch at their Queen Street office and
worked for them in a clerical capacity for a year was not
credible15, in light of the evidence, as summarized above.
13
See supra note 10.
14
See supra note 10.
15
See supra note 10.
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Therefore, the omission of the mistake of fact jury instruction
at trial was not plain error. Even assuming arguendo that it
was, there is no reasonable possibility that the omission of a
mistake of fact instruction contributed to Taylor’s conviction.
In other words, the omission of the mistake of fact jury
instruction was harmless beyond a reasonable doubt.
We therefore reverse the ICA’s March 27, 2012 Judgment on
Appeal, entered pursuant to its February 29, 2012 Summary
Disposition Order, which vacated the October 7, 2009 Judgment and
Conviction of the Circuit Court of the First Circuit and remanded
this case for a new trial. Taylor’s Judgment of Conviction and
Sentence is affirmed.
Kimberly Tsumoto Guidry /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Phyllis J. Hironaka /s/ Sabrina S. McKenna
for respondent
/s/ Colette Y. Garibaldi
32