State v. Souza.

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Electronically Filed
Supreme Court
SCWC-13-0002043
30-MAY-2018
09:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
TRACY SOUZA,
Petitioner/Defendant-Appellant.
SCWC-13-0002043
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002043; CRIMINAL NO. 12-1-1028)
MAY 30, 2018
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
In State v. Murray, 116 Hawaii 3, 169 P.3d 955 (2007),
this court held that if a defendant offers to stipulate to the
prior conviction element of a charged offense, the trial court
must accept the stipulation. This appeal arises from a
challenge by Tracy Souza asserting that the circuit court
refused to accept his offer to stipulate to his prior felony
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conviction, which constituted an element of an offense with
which he was charged. We hold that the manner in which the
circuit court addressed Souza’s offer to stipulate to the prior
conviction element was inconsistent with our decision in Murray.
Because this error was not harmless beyond a reasonable doubt,
we vacate the judgment and remand the case for further
proceedings consistent with this opinion.
I. BACKGROUND
On July 16, 2012, Souza was charged by felony
information in the Circuit Court of the First Circuit (circuit
court) with place to keep unloaded firearms other than pistols
and revolvers, in violation of Hawaii Revised Statutes (HRS) §
134-24 (hereinafter “place to keep firearm”),1 and ownership or
1
HRS § 134-24 (2011) provides in relevant part as follows:
(a) Except as provided in section 134-5, all firearms
shall be confined to the possessor’s place of business,
residence, or sojourn; provided that it shall be lawful to
carry unloaded firearms in an enclosed container from the
place of purchase to the purchaser’s place of business,
residence, or sojourn, or between these places upon change
of place of business, residence, or sojourn, or between
these places and the following:
(1) A place of repair;
(2) A target range;
(3) A licensed dealer’s place of business;
(4) An organized, scheduled firearms show or exhibit;
(5) A place of formal hunter or firearm use training
or instruction; or
(continued . . .)
2
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possession prohibited of any firearm or ammunition by a person
convicted of certain crimes, in violation of HRS § 134-7(b)
(hereinafter “prohibited possession of firearm”).2 Souza pleaded
not guilty to the charges, and a jury trial was held.3
A. Proposed Stipulation
Prior to jury selection, the circuit court discussed
with both parties the subject of a possible stipulation as to
Souza’s previous conviction of a felony offense. The court
noted that both the State and Souza drafted proposed
stipulations but that an agreement had not been reached as to
which version would be used at trial. The court stated the
following:
After reviewing both of the stipulations, it’s my
view, that, absent a specific agreement by both of you,
then the State would be perfectly within its right to call
whatever witnesses they felt are necessary and relevant --
obviously it would be -- have to be approved and permitted
by the Court -- to establish that element of a prior
conviction.
(. . . continued)
(6) A police station.
2
HRS § 134-7 provides in relevant part as follows:
(b) No person who is under indictment for, or has
waived indictment for, or has been bound over to the
circuit court for, or has been convicted in this State or
elsewhere of having committed a felony, or any crime of
violence, or an illegal sale of any drug shall own,
possess, or control any firearm or ammunition therefor.
HRS § 134-7(b) (2011).
3
The Honorable Rom A. Trader presided.
3
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And, so, with that, [defense counsel], has Mr. Souza
arrived at any decisions as to whether or not he’ll accept
the State’s version of the stipulation?
Defense counsel responded, “Yes,” and indicated that
he wished to make a record. Counsel stated that while the
defense was seeking to exclude the naming of Souza’s prior
convictions, the State’s stipulation included facts that were
not elements of the offense of prohibited possession of firearm
and therefore they were not relevant.4 As an example, defense
counsel cited paragraph 3 of the State’s proposed stipulation--
regarding Souza not having been pardoned of the prior
conviction--as already covered by Souza’s stipulation that he
has a prior conviction. Counsel also pointed to paragraph 4 of
the State’s proposed stipulation--that Souza was prohibited from
4
The record on appeal does not include Souza’s proposed
stipulation. The State’s proposed stipulation provided, inter alia, as
follows:
1. As of July 11, 2012, the Defendant, Tracy Souza, had
been convicted of a felony offense in the State of
Hawaii.
2. As of July 11, 2012, the Defendant, Tracy Souza, knew
that he had been convicted of a felony offense in the
State of Hawaii.
3. The Defendant, Tracy Souza, has not been pardoned for
such felony offense.
4. As a result of this conviction, the Defendant, Tracy
Souza, is prohibited from owning or possessing any
firearms or ammunition.
5. As a result of this conviction, the Defendant, Tracy
Souza, knew that he was prohibited from owning or
possessing any firearms or ammunition.
4
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owning or possessing firearms as a result of his prior
conviction--as being a statement of law and not an element of
the offense. Additionally, defense counsel referenced paragraph
5 of the State’s proposed stipulation--that Souza knew he was
prohibited from owning or possessing any firearms--as also not
being an element of the prohibited possession of firearm
offense. Souza requested that, even if the defense did not
agree to the State’s proposed stipulation, the State be
precluded from presenting evidence as to these matters. Defense
counsel continued as follows:
My understanding is the State is proffering or would put up
. . . Mr. Souza’s former probation officer, to testify to
the effect that Mr. Souza was instructed or informed or
advised that he was prohibited from possessing. And, so,
that not being relevant under 403 -- well, 401, 403, we’d
ask that we not have to agree to that as well as the State
not -- as well as the State be precluded from presenting
that evidence.
Although the State acknowledged that pursuant to State
v. Murray the defense had the right to stipulate to the name and
nature of the offense, the State asserted that it still needed
to prove that it was a Hawaii court that had issued the prior
judgment. The State indicated that it intended to provide such
proof by entering a certified, sealed judgment of the conviction
subject to redaction. Defense counsel disagreed with the State
5
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that it was required to prove the jurisdiction of the court that
rendered the prior judgment.5
The State also contended that it needed to prove that
Souza knew he was prohibited from owning or possessing firearms.
Thus, the State would not agree to Souza’s proposed stipulation
because it did not want to be precluded from offering evidence
as to what the State believed were elements of the offense that
the State was required to prove to obtain a conviction. The
court then inquired of the State whether it believed that,
absent the stipulation, it would be entitled under caselaw to
introduce the matters contained in its stipulation, or
alternately, whether it intended to present evidence of such
matters even with the stipulation. The State responded that it
did not want the situation to be cast in a light where Souza was
forced to accept its proposed stipulation and if that was the
case it would withdraw its proposed stipulation. The State
again acknowledged that Souza had the right under Murray to
stipulate to preclude the name and nature of the prior
conviction. At the same time, the State contended that, absent
a broader stipulation, it would need to introduce evidence of
5
The court indicated that it tended to agree with the defense as
to its position on this issue. However, the jurisdictional fact was included
in the stipulation that was read to the jury. See infra § I-C.
6
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Souza’s state of mind with respect to the firearm prohibition.
The State continued,
So . . . I would intend to call the probation officer, not
to discuss the name and nature of the prior offenses but
just to establish that he did go over the terms and
conditions of that probation and they did include the fact
that he was prohibited from owning or possessing the
firearm.
Defense counsel disagreed that the State was required
to prove that “Souza knew he was prohibited or even reckless
about being prohibited from possessing” a firearm. Souza
maintained that this state of mind is not an element of the
offense of prohibited possession of firearm. And because
knowledge or recklessness as to the statute’s prohibition was
not relevant to proof of the offense, defense counsel contended
that the State should be precluded from calling the probation
officer for such testimony.
The court stated that it seemed the language in the
felony information did involve Souza’s state of mind. Defense
counsel responded that Souza’s stipulation included his state of
mind as to having been convicted but not that Souza knew he was
prohibited from owning or possessing a firearm. The court
responded as follows:
THE COURT: Basically this is the situation, and if Mr.
Souza, after discussing with you the pros and cons of the
stipulation and the pros and cons of deciding not to agree
to enter into the stipulation as proposed by the State --
and it’s his choice -- if he decides that he -- the
stipulation as proposed is unacceptable to him, the Court
is certainly not going to do anything to try to persuade
him or convince him that, you know, he should do that.
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That’s entirely up to him. And so -- but if, however, he
chooses, after thinking about it and talking to you about
it, making a decision, and upon voir dire by the Court that
that’s what he wants to do, then the stipulation will stand
as it is. So I’ll give you some time to talk to him. But
certainly prior to opening statement we’ll reach a
resolution on the stipulation.
Defense counsel asked the court whether it was ruling that
“Souza’s state of mind with regard to . . . [paragraphs] 4 and 5
. . . that he knew he was prohibited from owning or possessing
firearms or ammunition, that the Court is of the belief . . .
that that is relevant.” The court responded, “Yes.”
Following jury selection, the court asked the parties
whether an agreement had been reached regarding the proposed
stipulations. Defense counsel stated that “because of the
court’s rulings,” Souza was going to stipulate to the five
enumerated paragraphs that the State proposed although he
originally had no desire to do so.
The court then conducted a colloquy, and Souza
acknowledged that he agreed to the State’s proposed stipulation.
The court found that Souza voluntarily entered into the
stipulation with the requisite knowledge and understanding.
B. Trial Testimony
On July 11, 2012, Dennis Crail, a security agent for
the Board of Water Supply, responded to a report of homeless
people or trespassers on state property located at 2530 Likelike
8
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Highway.6 While searching the property, Crail discovered a blue
tent that was situated on Board of Water Supply land. Crail
testified that he was approximately thirty feet from the tent
when he saw a male exit that tent. The male had his back turned
toward him, Crail stated, but the male later turned sideways,
allowing Crail to see the side of his face. Crail later
identified the male as Souza. Crail acknowledged that he had
not seen Souza prior to the incident.
According to Crail, Souza was carrying in his hand
what appeared to be a rifle case. Crail observed Souza take
something out of the case and hold it in his right hand; when
Souza raised his hand, Crail could see the stock of a rifle.
Crail testified that he saw Souza hold the rifle for about three
minutes. Crail then retreated a safe distance and called 911.
Crail later learned that there were two other persons with
Souza--a male and a female--but testified that he was sure he
saw Souza with the rifle.
Brianna Lincoln-Chong, who was with Souza on the day
he was arrested, testified that she and Souza had arrived at the
wooded area on Likelike Highway earlier that day. Souza went to
6
Crail testified that the state property at 2530 Likelike Highway
had none of the following: a target range for firearms, a place of repair for
firearms, a licensed firearm dealer’s place of business, an organized
scheduled firearm show or exhibit, a place of formal hunter or firearm use
training, and a police station.
9
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check hunting traps, and then she and Souza hiked to a campsite.
When the police arrived, Souza was asleep. Chong stated that
Souza never had the rifle in his possession during the entire
time from when she arrived at the campsite until John Wilcox
arrived. Chong explained that Wilcox asked her if she had seen
a case for the rifle and that Wilcox had the rifle in his hand
at that time.7
Chong acknowledged that in her statement to police she
wrote that only Souza had possession of the rifle and that the
rifle was brought out when she and Souza left for the hike and
put back into the case when they reached the campsite. However,
she explained that when she made the statement, she was scared
and felt threatened by the possibility of going to jail. Chong
testified that she had been handcuffed and held for questioning
and that she was not allowed to leave until she made a
statement. She stated that she told the police that she did not
know whose rifle it was and did not initially include in the
statement anything about Souza holding it. Chong testified that
the police made her add at the end of her statement that Souza
7
The State also presented the testimony of Honolulu Police
Department (HPD) officers who responded to the reported incident (but did not
view the alleged carrying), an HPD detective who interviewed Crail, HPD
personnel who examined the rifle and who kept records of permits or licenses
to carry firearms, and an employee of the Board of Water Supply who testified
that the property at 2530 Likelike Highway is state property.
10
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had possessed the rifle.8 Because she had never been in trouble
or been arrested before, Chong said, she “just cooperated and
did whatever [the police] wanted [her] to do” in order to leave
the police station. Chong acknowledged that Souza is a family
friend and that she did not want to testify because she felt she
could be the reason for Souza going to jail.
John Wilcox testified that he and Souza had found the
rifle in the bushes the day earlier when they were pig hunting.
Wilcox stated he had picked up the rifle and put it in the
bushes where he and Souza were camping.
The next day when Wilcox arrived at the campsite,
Souza was asleep in the tent. Wilcox testified that he
retrieved the rifle from the bushes. A little while later, he
heard tires screeching, saw the police officers, ran back to the
tent, and woke Souza up. Wilcox asked Souza what he should do
with the rifle, and Souza said to get rid of it. Wilcox put the
rifle back in the bushes where he had placed it earlier. He
testified that Souza never handled the rifle and that he had
never seen Souza pick it up. He further testified that he
understood it was possible that he could get in trouble by
8
The final two sentences in Chong’s written statement read, “John
[Wilcox] never had the gun in his possession. Only Tracy [Souza] did.”
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testifying. And although Souza was his friend, Wilcox explained
he was not making up a story to help Souza.
On cross-examination, Wilcox indicated that the rifle
did not have a magazine, nor was it loaded when it was found.
Wilcox stated that at no point was the rifle fired either on the
day it was found or on the following day. Wilcox acknowledged
that he did not have a license or permit to carry or acquire the
rifle. Wilcox also related that he had known Souza for a little
over a year and they were friends and did side jobs together.
C. Stipulation and Jury Instructions
At the end of the State’s case-in-chief, the circuit
court informed the jury that the State and Souza had reached a
stipulation and that the stipulated facts were true and accurate
and would be admitted into evidence in lieu of other evidence or
testimony. The court then read the stipulation as follows:
It is hereby stipulated to by and between Defendant
Tracy Souza . . . and the State of Hawaii . . . that the
following facts are true and accurate and will be admitted
into evidence during trial of the above-entitled matter in
lieu of other evidence or testimony.
1) As of July 11, 2012, the defendant, Tracy Souza,
had been convicted of a felony offense in the state of
Hawaii.
2) As of July 11, 2012, the defendant, Tracy Souza,
knew that he had been convicted of a felony offense in the
state of Hawaii.
3) The defendant, Tracy Souza, has not been pardoned
for such felony offense.
4) As a result of this conviction, the defendant,
Tracy Souza, is prohibited from owning or possessing any
firearms or ammunition.
5) As a result of this conviction, the defendant,
Tracy Souza, knew that he was prohibited from owning or
possessing any firearms or ammunition.
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The court then advised the jury that one of the elements of
prohibited possession of firearm is referred to as the “prior
conviction element” and requires the State to prove that Souza
was previously convicted of a felony. The court explained that
the State and Souza had stipulated to this element, meaning that
both sides agreed that Souza has a prior felony conviction. The
court stated that based on this stipulation the jury must accept
as proven beyond a reasonable doubt the prior conviction
element.9
At the conclusion of the evidence, the court
instructed the jury on the elements of the offense of prohibited
9
The court’s instruction as to the stipulation stated as follows:
One of the elements of the alleged offense in Count II of
Ownership or Possession of Any Firearm or Ammunition by a
Person Convicted of Certain Crimes requires the Prosecution
to prove beyond a reasonable doubt that Defendant Tracy
Souza had been previously convicted of a felony. This
element is referred to as the “prior conviction element” of
the offense. The Defense and the Prosecution have
stipulated to this element, which means that both sides
agree that Defendant has a prior felony conviction. Based
on this stipulation, you must accept as proven beyond a
reasonable doubt the “prior conviction element.” You must
not consider the stipulation for any other purpose. You
must not speculate as to the nature of the prior
conviction. Do not consider this evidence for any other
purpose. You must not use this evidence to conclude that
because the defendant at another time has committed a crime
that he is a person of bad character and, therefore, must
have committed the offenses charged in this case. In
considering the evidence for the limited purpose of which
it has been received, you must weigh it in the same manner
as you would all other evidence in this case and consider
it along with all other evidence in this case.
The instruction was given again, substantially verbatim, at the close of
evidence.
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possession of firearm. The court reiterated that the State and
Souza had stipulated to the prior conviction element, meaning
that both sides agreed that Souza has a prior felony conviction,
and that this element must be accepted as proven beyond a
reasonable doubt.
The jury found Souza guilty of both charged offenses.
Souza was sentenced to five years of probation in each count,
with the terms to run concurrently. As part of Souza’s
probation sentence, the court imposed concurrent jail terms of
thirty days with credit for time served. Souza filed a notice
of appeal to the Intermediate Court of Appeals (ICA) from the
Judgment of Conviction and Probation Sentence (judgment).
II. ICA PROCEEDINGS
In his opening brief, Souza contended that he offered
to stipulate to the prior conviction element of the prohibited
possession of firearm charge but that the circuit court refused
to accept his stipulation unless he agreed to the State’s
proposed stipulation.10
Souza explained that he and the State discussed his
intent to admit to his prior felony conviction and to his
knowledge of that conviction, but that they differed as to
10
Souza raised three other points of errors, none of which were
raised in his application for a writ of certiorari, and thus they are not
addressed.
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agreeing to other matters in the stipulations. Souza noted that
the State made it clear that if he did not accept its
stipulation it would call a witness to establish that Souza knew
his prior conviction prohibited him from owning or possessing
firearms. Souza added that the State informed the court that it
would also seek to admit a redacted version of the certified
judgment of the prior felony conviction to prove that the
conviction occurred in the State of Hawaii. Souza argued that
these facts were not elements of the offense and were unduly
prejudicial.
Souza maintained that the court admonished him that if
he did not accept the State’s proposed stipulation, the State
would be free to call any witnesses it felt were necessary to
establish the prior felony conviction. The circuit court, Souza
continued, conditioned the acceptance of his offer to stipulate
to other evidence requested by the State. Souza argued that the
court’s error was not harmless and that such error infected the
jury’s verdict as to both of the charged offenses. Accordingly,
Souza requested that the judgment be vacated and the case
remanded for a new trial.
In its answering brief, the State responded that
neither it nor the circuit court forced Souza to accept the
State’s proposed stipulation. The State maintained that both
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parties had their own versions of the stipulation but that they
did not reach an agreement as to either version. The State
argued that the point of contention was whether the stipulation
should include that Souza was prohibited from owning or
possessing firearms as a result of his prior conviction and that
he knew he was prohibited from such ownership or possession.
The State contended that it was required to show that Souza
acted with the requisite state of mind to prove the prohibited
possession of firearm charge. The State concluded that it was
Souza’s choice to agree to the State’s stipulation and that
there was nothing in the record indicating that Souza would have
been prevented from stipulating to his prior conviction had he
not accepted the State’s proposed stipulation.
In a summary disposition order (SDO), the ICA affirmed
the circuit court’s judgment.11 The ICA determined that the
transcript of proceedings contradicted Souza’s contention that
he was forced to decide between accepting the State’s proposed
stipulation and not being allowed to stipulate. The ICA
indicated that the parties and the circuit court did not discuss
whether the court would accept Souza’s stipulation. However,
the ICA stated that “they did discuss that in the event that
11
The ICA’s SDO can be found at State v. Souza, NO. CAAP-13-
0002043, 2017 WL 2797598 (Haw. App. June 28, 2017).
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Souza’s stipulation was entered, whether the State would be
allowed to call Souza’s probation officer to establish that
Souza knew that he was not allowed to possess firearms.”
Accordingly, the ICA concluded that the circuit court complied
with the Murray decision.
III. DISCUSSION
A. Failure to Comply With the Murray Requirements
A defendant has a due process right to have each
element of an offense proven beyond a reasonable doubt; this
right is protected by the federal and state constitutions and
HRS § 701-114. State v. Murray, 116 Hawaii 3, 10, 10 n.8, 169
P.3d 955, 962, 962 n.8 (2007) (citing U.S. Const. amend. XIV, §
1; Haw. Const. art. I, § 5). Thus, where a prior conviction is
an essential element of the offense charged, the State must
prove the prior conviction beyond a reasonable doubt. Id. at
10, 169 P.3d at 962.
In this case, Souza was charged with violating HRS §
134-7(b), which provides, “No person who . . . has been
convicted in this State or elsewhere of having committed a
felony, or any crime of violence, or an illegal sale of any drug
shall own, possess, or control any firearm or ammunition
therefor.” Hence, to establish that Souza violated HRS § 134-
7(b), the State was required to prove, inter alia, that Souza
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was previously convicted of a felony, any crime of violence, or
an illegal sale of any drug.
A defendant may offer to stipulate to the prior
conviction element of a charged offense. If the defendant does
so, “the court must accept [the] stipulation.” Murray, 116
Hawaii at 21, 169 P.3d at 973. The stipulation may be accepted
only after the court has engaged the defendant in an on-the-
record colloquy regarding the defendant’s constitutional rights
and has ensured that the defendant “is making a knowing and
voluntary waiver of his right to have the prior convictions
proven beyond a reasonable doubt and decided by a jury.” Id.Following acceptance of the stipulation, the court must instruct
the jury, inter alia, that the defendant has stipulated to the
prior conviction element of the charged offense to make it clear
that this element is conclusively proven beyond a reasonable
doubt. Id. “The instruction must be carefully crafted to omit
any reference to the ‘name or nature’” of the prior conviction,
and “[t]he court must also preclude any mention of the nature of
[the defendant’s] prior convictions at any point during the
trial.” Id.In this case, Souza had a prior conviction that
constituted an element of the prohibited possession of firearm
charge. Thus, under Murray, Souza was allowed to stipulate to
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the prior conviction element, which stipulation “the court must
accept.” 116 Hawaii at 21, 169 P.3d at 973. Souza contends
that the circuit court violated this requirement by refusing to
accept his offer to admit to the prior conviction element. The
ICA disagreed, stating that “the Circuit Court did not
explicitly discuss whether the court would accept Souza’s
stipulation.” The transcript of proceedings contradicts this
holding, however.
The State and Souza each drafted proposed stipulations
regarding the prior conviction element. The circuit court
informed the parties that it had received and reviewed both the
State’s and Souza’s stipulations and would allow the State to
call witnesses to prove the conviction element if the parties
did not reach an agreement:
After reviewing both of the stipulations, it’s my view,
that, absent a specific agreement by both of you, then the
State would be perfectly within its right to call whatever
witnesses they felt are necessary and relevant -- obviously
it would be -- have to be approved and permitted by the
Court -- to establish that element of a prior conviction.
(Emphases added.) The circuit court thus stated that only an
agreement by both counsel as to the stipulation to be given
would preclude the State from calling witnesses to establish the
element of the prior conviction. By expressing that the State
would be permitted to call witnesses if an agreement was not
reached, the court was stating that it would not accept Souza’s
stipulation to the conviction element “absent an agreement by
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both” parties. In other words, the circuit court declined to
accept Souza’s stipulation on its own, without the State’s
consent--a ruling that Murray squarely forecloses. See 116
Hawaii at 21, 169 P.3d at 973 (“[T]he court must accept [the]
stipulation.”).
Souza further argues that the circuit court
conditioned his right to admit the prior conviction element on
his agreement to enter into the form of stipulation proposed by
the State, which contained additional information to which he
did not wish to stipulate. As discussed, the court stated at
the outset that, absent an agreement between the State and
Souza, the State would be entitled to call witnesses to
establish the prior conviction element of the prohibited
possession of firearm charge. Under Murray, Souza was entitled
to admit to the prior conviction element and preclude the
introduction of evidence to prove this element of the charged
offense. This entitlement exists whether or not the State
agrees to the form of the stipulation in which the defendant
admits to the prior conviction. Instead of informing Souza of
this right, the court told Souza he could either reach an
agreement with the State as to the form of the stipulation or
the State could call necessary and relevant witnesses to prove
the element of the prior conviction.
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The court then compounded its error by asking defense
counsel the following question: “And, so, with that . . . has
Mr. Souza arrived at any decisions as to whether or not he’ll
accept the State’s version of the stipulation?” Souza, however,
was under no obligation to elect whether to accept the State’s
version of the stipulation. The circuit court should only have
confirmed Souza’s intention to admit to the prior conviction,
and once Souza so indicated, that should have been the end of
the discussion.
The court did not correct its misstatements; as a
result, its subsequent statements to defense counsel aggravated
the approach that the court had followed.
THE COURT: Basically this is the situation, and if Mr.
Souza, after discussing with you the pros and cons of the
stipulation and the pros and cons of deciding not to agree
to enter into the stipulation as proposed by the State --
and it’s his choice -- if he decides that he -- the
stipulation as proposed is unacceptable to him, the Court
is certainly not going to do anything to try to persuade
him or convince him that, you know, he should do that.
That’s entirely up to him. And so -- but if, however, he
chooses, after thinking about it and talking to you about
it, making a decision, and upon voir dire by the Court that
that’s what he wants to do, then the stipulation will stand
as it is. So I’ll give you some time to talk to him. But
certainly prior to opening statement we’ll reach a
resolution on the stipulation.
(Emphases added.) Thus, the court gave Souza two choices: “not
to agree to enter into the stipulation as proposed by the
State,” which had pro and cons, or accept the State’s
stipulation, which also had pros and cons. But, as discussed,
under Murray, the choice should not have been whether to accept
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or not accept the State’s proposed stipulation in light of the
“pros and cons.” Instead, under the circumstances, Souza had an
absolute right to have his offer to admit to the prior
conviction accepted by the court.12
The circuit court’s misapprehension of the procedures
adopted in Murray was underscored when it informed Souza that he
could reject the State’s stipulation (which as the court had
previously explained essentially meant that the State could call
whatever witnesses it wished to prove the prior conviction), or
accept the State’s stipulation without any modification (“then
the stipulation will stand as it is”). (Emphasis added.) But
the court should have either modified the State’s proposed
stipulation in a manner that was consistent with this court’s
decision in Murray or, alternatively, accepted Souza’s proposed
stipulation. The circuit court therefore erred when, instead of
accepting Souza’s proffered stipulation to the prior conviction
element as required by Murray, it presented Souza with the
choice of accepting or not accepting the State’s stipulation.
12
The State asserted that it was Souza’s choice whether or not to
enter into the stipulation in the State’s proffered form. The mere assertion
that Souza was not required to agree to the form of stipulation that the
State submitted did not alter the court’s non-acceptance of Souza’s proposed
stipulation.
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B. The Procedure Utilized by the Circuit Court Compromised the
Protections Adopted in Murray
In Murray, we recognized the inherent difficulties
that arise in providing a fair trial to a defendant who is
charged with an offense of which a previous criminal conviction
forms a requisite element. On the one hand, a defendant
possesses a constitutional due process right to be convicted
only when the State proves every element of an offense beyond a
reasonable doubt, including that of a prior conviction. State
v. Murray, 116 Hawaii 3, 10, 169 P.3d 955, 962 (2007). On the
other hand, the introduction of evidence regarding a defendant’s
previous crimes injects undue prejudice into the proceedings
because it may lead the jury to make its decision on an improper
basis, such as the belief that the defendant is a bad person
with criminal inclinations. Id. at 19, 169 P.3d at 971.
To resolve this tension, we held that a defendant has
an unconditional right to make a knowing and voluntary waiver of
the requirement that a previous conviction be proven beyond a
reasonable doubt. Id. at 21, 169 P.3d at 973. By exercising
this unconditional right, a defendant may admit to the element
and remove the previous conviction from contention, ensuring
that the jury is not exposed to potentially prejudicial evidence
about the nature of the previous offense. Id. If the waiver is
knowing and voluntary, the court must accept the stipulation
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unconditionally. Id. This approach protects the defendant’s
constitutional due process right to a fair trial to the greatest
extent possible while minimizing the likelihood that the jury
will improperly consider the details of a previous crime as it
relates to the defendant’s character.
Here, the Murray stipulation was used by the circuit
court as a basis to make evidentiary rulings not applicable to
such a stipulation in a manner that exposed the jury to
information unrelated to the defendant’s prior conviction. In
addition, because this extraneous information was contained in a
stipulation, the jury was required to treat it as conclusive.
Thus, rather than striking a balance between competing
interests, the approach taken in this case contravened the
protections adopted in Murray.
1. The stipulation procedure was improperly combined with
evidentiary rulings to determine the scope of the stipulation.
The circuit court departed from the procedures
required by Murray by combining preliminary evidentiary rulings
with its consideration of Souza’s stipulation. Souza argued
that several paragraphs contained within the State’s proposed
stipulation were not elements of the prohibited possession of
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firearm charge, were irrelevant, and were prejudicial.13 The
circuit court disagreed, stating that the paragraphs were
relevant and even went so far as to specify which witnesses it
might permit to testify on the matter if Souza did not accept
the stipulation.14
The court’s evaluation of admissibility should have
been separate and distinct from the only determination at issue
in Souza’s Murray stipulation--namely, whether Souza knowingly
and voluntarily admitted the prior conviction element of the
prohibited possession of firearm charge. Murray required that
the court unconditionally accept Souza’s admission of the prior
conviction element if Souza so agreed to it. 116 Hawaii at 21,
169 P.3d at 973. All other issues were immaterial to the
13
Specifically, Souza argued against paragraphs three, four, and
five. Paragraph three stated the following: “The Defendant, Tracy Souza, has
not been pardoned for [the previous] felony offense.” Paragraph four read as
follows: “As a result of [his prior] conviction, the Defendant, Tracy Souza,
is prohibited from owning or possessing any firearms or ammunition.”
Paragraph five stated as follows: “As a result of [the prior] conviction, the
Defendant, Tracy Souza, knew that he was prohibited from owning or possessing
any firearms or ammunition.” It is noted that the court correctly did not
instruct the jury that the lack of a pardon, the fact of the prohibition, and
Souza’s knowledge of the prohibition were elements of the prohibited
possession of firearm offense, despite the inclusion of these paragraphs in
the State’s stipulation.
14
The State explained that, if Souza did not agree to the State’s
proposed stipulation, it intended to call Souza’s probation officer to prove
that Souza was aware that he was prohibited from owning or possessing
firearms. The circuit court ruled that Souza’s state of mind with respect to
the prohibition was relevant to the prohibited possession of firearm offense
and that it would permit the State to call the witnesses the State deemed
necessary to prove the matter if Souza did not agree to the State’s
stipulation.
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analysis. By combining the Murray ruling with unrelated
evidentiary matters, the circuit court intermingled the
determinations, compromising Souza’s fundamental right to remove
his prior conviction from consideration.
2. The contents of the State’s stipulation far exceeded the
parameters of a Murray stipulation.
In Murray, the defendant was charged with a recidivist
abuse offense for which the prosecution was required to prove,
inter alia, “that the violation was Petitioner’s ‘third or any
subsequent offense that occur[ed] within two years of a second
or subsequent conviction.’” 116 Hawaii at 7, 169 P.3d at 959(alteration in original) (quoting HRS § 709–906(7) (Supp.
2004)). We held that this requirement of a previous conviction
within the specified time frame was an attendant circumstance
that was an element of the offense and that the defendant had an
unconditional right to stipulate to that previous conviction
element. Id. at 8, 21, 169 P.3d at 960, 973.
Here, the court instructed the jury that Souza was
charged with a crime for which the prosecution needed to prove
the following elements:
[1) T]he defendant intentionally or knowingly possessed or
controlled the object in question; and 2) that the object
in question was a firearm; and 3) that at the time he
possessed or controlled the object in question Defendant
believed, knew, or recklessly disregarded a substantial and
unjustifiable risk that the object was a firearm; and 4)
that prior to July 11, 2012, the defendant was convicted of
committing a felony offense; and 5) that at the time he
possessed or controlled the object in question the
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defendant believed, knew, or recklessly disregarded the
substantial and unjustifiable risk that he had previously
been convicted of a felony offense.
Under Murray, Souza had a right to stipulate to the final two
elements in order to prevent the jury from hearing about the
name and nature of his previous conviction. That right could
not be conditioned on Souza stipulating to any other
information. The State’s proposed stipulation was far more
extensive. The stipulation read as follows:
1. As of July 11, 2012, the Defendant, Tracy Souza, had
been convicted of a felony offense in the State of Hawaii.
2. As of July 11, 2012, the Defendant, Tracy Souza, knew
that he had been convicted of a felony offense in the State
of Hawaii.
3. The Defendant, Tracy Souza, has not been pardoned for
such felony offense.
4. As a result of this conviction, the Defendant, Tracy
Souza, is prohibited from owning or possessing any firearms
or ammunition.
5. As a result of this conviction, the Defendant, Tracy
Souza, knew that he was prohibited from owning or
possessing any firearms or ammunition.
Only the first two paragraphs were covered by our Murray
holding.15 The State argued that the remaining paragraphs
constituted elements of the offense, which was incorrect. But
this is ultimately beside the point--even other elements of the
offense are beyond the scope of a Murray stipulation.
15
It is noted that paragraphs 1 and 2 are not entirely encompassed
by the decision in Murray. Both paragraphs indicate that Souza was
previously convicted in the State of Hawaii. Souza correctly argued to the
circuit court that the jurisdiction of the court that rendered the judgment
of the prior conviction is not an element of the prohibited possession of
firearm offense. In relevant part, HRS § 134-7(b) provides that “[n]o person
who . . . has been convicted in this State or elsewhere of having committed a
felony . . . shall own, possess, or control any firearm.” (Emphasis added.)
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The harm caused by the error was realized when the
court read the stipulation to the jury in its entirety. In
other words, the result of the Murray stipulation here was to
expose the jury to more prejudicial information rather than
less.
Instead of taking Souza’s prior conviction out of
contention, the stipulation made it a central focus and further
communicated to the jury that Souza had not been pardoned and
was aware that his possession of a firearm was prohibited. And,
as Souza pointed out to the circuit court, the stipulation
confused the issues by including a statement of law--that
Souza’s conviction prevented him from owning or possessing
firearms. In sum, the stipulation increased the likelihood that
the jury would make its decision on an improper basis--the
precise opposite of what a Murray stipulation is intended to
accomplish.
C. The Circuit Court’s Error Was Not Harmless Beyond a
Reasonable Doubt
Given the circumstances of this case, it cannot be
said that the circuit court’s error in not accepting Souza’s
stipulation was harmless beyond a reasonable doubt. “In
applying the harmless beyond a reasonable doubt standard[,] the
court is required to examine the record and determine whether
there is a reasonable possibility that the error complained of
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might have contributed to the conviction.” State v. Mundon, 121
Hawaii 339, 368, 219 P.3d 1126, 1155 (2009) (alteration in
original) (quoting State v. Balisbisana, 83 Hawaii 109, 114, 924
P.2d 1215, 1220 (1996)).
This is not a case “[w]here there is a wealth of
overwhelming and compelling evidence tending to show the
defendant guilty beyond a reasonable doubt.” State v. Rivera,
62 Haw. 120, 127, 612 P.2d 526, 532 (1980). The evidence
adduced at trial established that Crail was the only witness who
identified Souza as the person in possession of the rifle.
Crail admitted that he had not had any contact with Souza prior
to the underlying incident in this case. Crail further
testified that he was approximately thirty feet away from the
tent when he saw Souza carrying the rifle, that Souza had his
back turned toward him, and that he later saw only the side of
Souza’s face.
The evidence also included testimony that there were
two other persons with Souza on the day in question, Chong and
Wilcox. Chong testified that Souza never had the rifle with him
or in his possession during the entire time from when she
arrived at the campsite until Wilcox arrived.16 At a later
16
Although this testimony was inconsistent with the written
statement Chong initially made to police, which was admitted into evidence,
(continued . . .)
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point, Chong testified, Wilcox asked her--while holding the
rifle in his hand--whether she had seen the case for that rifle.
Wilcox testified that the rifle was found the day before Souza’s
arrest near where he and Souza were camping. He stated that
Souza never handled the rifle and that he had never seen Souza
pick it up and look at it. Wilcox testified that he was the
person who had held the rifle--even though he understood it was
possible that his testimony could get him in trouble.
Clearly, on this record, there is a reasonable
possibility that the court’s error in not accepting Souza’s
offer to stipulate might have contributed to Souza’s conviction
for prohibited possession of firearm. The State’s stipulation
conclusively informed the jury that Souza had not been pardoned
for his prior offense and that he was aware that his prior
conviction prohibited him from owning or possessing any
firearms. The jury may have thus drawn negative inferences
about Souza’s character from this information, including that he
was a person who was not worthy of a pardon and that he
willfully violated the law as he knew his conduct was a criminal
(. . . continued)
Chong testified that she was frightened when she made the earlier statement
because she had never before been in any kind of legal trouble and that the
police pressured her into blaming Souza by threatening her with a firearm
possession charge.
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offense.17 Such negative inferences would clearly have been
prejudicial to Souza in the jury’s evaluation of the evidence in
this case.
There is also a reasonable possibility that
impermissible speculation may have contributed to Souza’s
conviction for the place to keep firearm offense. With respect
to both charged offenses in this case, the only contested issue
was whether it was Souza who was in possession of the firearm.
Thus, the same negative inferences about Souza’s character that
applied to the offense of prohibited possession of firearm,
including that Souza was a person who did not deserve to be
pardoned and that he deliberately failed to respect the law as
he knew his conduct was unlawful, may have equally impacted the
jury’s evaluation of Souza with regard to the place to keep
firearm charge. As Souza maintains on certiorari, “it cannot be
17
Souza correctly argued to the circuit court that paragraph 4 of
the State’s stipulation--“As a result of this conviction, the Defendant,
Tracy Souza, is prohibited from owning or possessing firearms or ammunition”-
-is a statement of law. This statement of law was improperly included in a
factual stipulation, outside the allowable scope of Murray, and its
presentment as a statement of fact potentially confused the jury as to the
nature of its fact-finding role. Additionally, by specifying that
“Defendant, Tracy Souza” was prohibited from engaging in the conduct with
which he was charged, the stipulation likely increased the perceived gravity
of the charged conduct, which was also prejudicial to Souza.
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said that the trial court’s error did not infect the jury’s
verdict as to both of the charged offenses in this case.”18
The circuit court’s instruction that accompanied the
stipulation was not sufficient to cure this potential prejudice.
The instruction stated only that the jury was prohibited from
considering the stipulation and “this evidence” for any purpose
besides establishing the prior conviction element. It made no
reference to the underlying facts proven by the factual
stipulation, and it did not specifically address the ways in
which the stipulation was flawed, which included that Souza had
not been pardoned and that he was aware that his prior
conviction prohibited him from owning or possessing a firearm.
A jury instruction must be specific to the harm resulting from
the error to function as a curative, and a general, boilerplate
instruction will not serve to eliminate the prejudice. See
State v. Basham, 132 Hawaii 97, 111, 319 P.3d 1105, 1119 (2014)
(“Additionally, while 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.”);
18
The State did not file a response to Souza’s application for a
writ of certiorari, nor did it make an argument in its answering brief to the
ICA that distinguished between the two charged offenses as to prejudice.
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State v. Espiritu, 117 Hawaii 127, 143, 176 P.3d 885, 901 (2008)
(“While the court here did properly instruct the jury . . .,
that instruction could not cure Respondent’s misstatements of
the law, where no specific curative instruction relating to the
misstatements was given.”).
In addition, when the misstatement of the law comes
from the court as here, “the court, at least tacitly, place[s]
its imprimatur upon the” improper statement. State v. Schnabel,
127 Hawaii 432, 453, 279 P.3d 1237, 1258 (2012) (brackets
omitted) (quoting State v. Pacheco, 96 Hawaii 83, 96, 26 P.3d
572, 585 (2001)). A jury is presumed to follow a court’s
instructions precisely because a jury is likely to perceive a
court’s statements of the law as the accurate law to apply.
When the court does not unequivocally correct its own
misstatement, a contrary instruction simply introduces confusion
as to the law governing the jury’s determination without
rectifying the error.
Lastly, although there is normally a presumption that
the jury follows all of the trial court’s instructions, see
State v. Klinge, 92 Hawaii 577, 592, 994 P.2d 509, 524 (2000),
that presumption is refuted here. Prior to instructing the jury
regarding the stipulation, the court stated, “There are five
material elements of the offense of Ownership or Possession
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Prohibited of any Firearm by a Person Convicted of Certain
Crimes.” The court instructed the jury that two of those
elements were that 1) prior to possessing a firearm, Souza was
convicted of a felony offense, and 2) when he possessed the
firearm, Souza “believed, knew, or recklessly disregarded the
substantial and unjustifiable risk that he had been convicted of
a felony offense.” The stipulation in this case included facts
satisfying both of these requirements.19 However, the court’s
instruction regarding the stipulation, which was given both at
the close of the State’s case-in-chief and immediately prior to
closing arguments, stated as follows:
One of the elements of the alleged offense in Count II of
Ownership or Possession of Any Firearm or Ammunition by a
Person Convicted of Certain Crimes requires the Prosecution
to prove beyond a reasonable doubt that Defendant Tracy
Souza had been previously convicted of a felony. This
element is referred to as the “prior conviction element” of
the offense. The Defense and the Prosecution have
stipulated to this element, which means that both sides
agree that Defendant has a prior felony conviction. Based
on this stipulation, you must accept as proven beyond a
reasonable doubt the “prior conviction element.” You must
not consider the stipulation for any other purpose. You
must not speculate as to the nature of the prior
conviction. Do not consider this evidence for any other
purpose.
(Emphases added.) The instruction did not reference Souza’s
state of mind with respect to his prior conviction, which the
19
As stated, the stipulation provided inter alia that, “As of July
11, 2012, the defendant, Tracy Souza, had been convicted of a felony offense
in the state of Hawaii” and, “As of July 11, 2012, the defendant, Tracy
Souza, knew that he had been convicted of a felony offense in the state of
Hawaii.”
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jury had been instructed was a separate element the State was
required to prove in order to obtain a conviction. And, because
Souza’s state of mind as to his conviction was included in the
factual stipulation, the State did not present any other
evidence from which the jury could have inferred that Souza’s
state of mind was proven beyond a reasonable doubt.
In other words, there was no evidence adduced at trial
regarding Souza’s state of mind as to his prior conviction other
than the stipulation. But to find Souza guilty of prohibited
possession of firearm, the jury was required to find that Souza
believed, knew, or recklessly disregarded the substantial and
unjustifiable risk that he had a prior felony conviction, and
the court had instructed the jury that this was a different
element than the prior conviction element. The factual
stipulation contained this requisite fact, and it was the only
evidence from which a jury could have possibly found that the
state of mind for the prior conviction element was satisfied.
The court’s instruction, however, informed the jury that the
stipulation could not be used for this purpose because it could
be used only for the prior conviction element, which the court
had instructed the jury was separate from the state of mind
element as to his prior conviction. Thus, the jury necessarily
disregarded the court’s instruction and considered the
underlying facts in the stipulation substantively because the
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jurors would not have been able to convict Souza had they
followed the court’s instruction as delivered.20 Accordingly,
the verdict as to the prohibited possession of firearm charge
rebuts the presumption that the jury followed the circuit
court’s limiting instructions regarding the stipulation in this
case.
The dissent agrees that the circuit court erred by
refusing to accept Souza’s stipulation and requiring Souza to
accept or reject the State’s proposed stipulation without
modification. Dissent at 4. However, the dissent argues that
there is no reasonable possibility that the court’s errors
contributed to Souza’s convictions. Dissent at 4.
The dissent contends that the case turned on the
jury’s evaluation of the credibility of Crail, Chong, and
Wilcox’s respective testimonies. Dissent at 15. Although
acknowledging that the jury could have drawn impermissible
inferences regarding Souza’s character from the facts in the
State’s unmodified stipulation, the dissent concludes that
Souza’s character was irrelevant to Crail, Chong, and Wilcox’s
credibility and thus unlikely to have affected the jury’s
determination. Dissent at 15.
20
Given our disposition of this case, we do not address whether
this logical inconsistency would amount to reversible error in its own right.
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However, our holding in Murray sought to preclude the
unnecessary introduction of evidence from which a jury might
make negative inferences about a defendant’s character precisely
because such evidence is not relevant to any matter of
consequence and invariably prejudicial to a defendant. See
State v. Murray, 116 Hawaii 3, 21, 169 P.3d 955, 973 (2007)
(“Eliminating the name and nature of the previous convictions
from the jury’s realm will prevent unfair prejudice to
defendants . . . .”); Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d
387, 392 (1986) (“Unfair prejudice ‘means an undue tendency to
suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” (quoting Advisory Committee’s
Note to Federal Rules of Evidence Rule 403)). Similarly,
evidence concerning other crimes, wrongs, or acts is generally
inadmissible under Hawaii Rules of Evidence (HRE) Rule 404(b)
because it is largely irrelevant, and “every variety of ‘unfair
prejudice’” implicated under HRE Rule 403 “is present when an
accused’s prior crimes are sought to be used against her.”
Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3
(2016) (citing State v. Kassebeer, 118 Hawaii 493, 507, 193 P.3d
409, 423 (2008); State v. Arceo, 84 Hawaii 1, 23-24, 928 P.2d
843, 865-66 (1996)).
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As the dissent acknowledges, the jury could have drawn
negative inferences about Souza’s character from the facts
included in the State’s stipulation. Dissent at 4, 15. The
risk that the jury would decide the case on the basis of these
unfavorable inferences about Souza’s character rather than upon
the witnesses’ credibility, or that the jury would make
unreasonable inferences as to the credibility of the witnesses
based on Souza’s perceived bad character, is exactly why the
evidence was unfairly prejudicial and should not have been
admitted at trial.
The dissent responds that, unlike the name and nature
of a prior conviction, the wrongfully admitted evidence in this
case was not “of such an overwhelmingly prejudicial nature that”
it could “affect a jury’s determination of a case, irrespective
of the nature of the issues and arguments upon which the parties
relied at trial.” Dissent at 12-16.
As an initial matter, the dissent understates the
gravity of the prejudicial information included in the
stipulation, which informed the jury, inter alia, that
1) As of July 11, 2012, the defendant, Tracy Souza,
had been convicted of a felony offense in the state of
Hawaii.
2) As of July 11, 2012, the defendant, Tracy Souza,
knew that he had been convicted of a felony offense in the
state of Hawaii.
3) The defendant, Tracy Souza, has not been pardoned
for such felony offense.
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(Emphasis added.) Members of a jury unfamiliar with the
executive pardon power may have inferred that a pardon is
generally given in due course following a convicted defendant’s
successful rehabilitation, and there was a reason that Souza had
not received one. Certainly, jurors instructed by the court
that it was “true and accurate” that Souza had not been pardoned
for his felony offense would consider this fact important for
their consideration. Jurors thus may have concluded that Souza
had not been pardoned for his felony conviction because he did
not merit receiving a pardon based on his character or his
subsequent conduct. In this respect, the stipulation suggested
an ongoing, present failure by Souza to redeem himself, not
merely past misconduct for which Souza had already paid his debt
to society. And, unlike a prior conviction introduced through
the normal evidentiary process, Souza was unable to offer any
evidence demonstrating context or mitigating circumstances
explaining the prejudicial facts (including the rarity with
which pardons are granted) because the facts were established by
stipulation. See 83 C.J.S. Stipulations § 5 (2017) (“A
stipulation bars a party who enters into it from adducing
evidence to dispute the stipulated facts or the circumstances
surrounding them.”).
Further, the negative effect of each portion of the
stipulation must be considered cumulatively. As stated, the
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stipulation also informed the jury that Souza was prohibited
from possessing a firearm and knew he was prohibited from
possessing a firearm, increasing the perceived wrongfulness of
the conduct underlying the firearm-related charges against
Souza. The harm in this case of the improperly admitted
information is particularly manifest when the various aspects
are compounded. See State v. Pemberton, 71 Haw. 466, 473, 796
P.2d 80, 83–84 (1990) (“We find that a number of these acts,
while not individually sufficient to warrant reversal,
cumulatively prejudiced Defendant to the extent of denying him a
fair trial.”).
Specific negative inferences aside, the dissent’s
reasoning misapprehends the basis for our decision in Murray.
To be sure, this court determined that evidence of the name and
nature of a defendant’s previous conviction is overwhelmingly
prejudicial, and we accordingly prescribed the stipulation
procedure that a defendant must be allowed to utilize to
preclude its introduction. Murray, 116 Hawaii at 20-21, 169
P.3d at 972-73. We did not suggest, however, that other
negative character evidence must rise to this level for its
admittance to constitute harmful error. Indeed, the dissent
appears to formulate a new alternative standard for evaluating
the harmfulness of negative character evidence when the
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defendant’s character is not closely related to arguments or
issues in the case, requiring a showing of overwhelming
prejudice in such circumstances.21
But irrelevant negative character evidence undermines
the presumption of innocence and places a thumb on the scales of
justice regardless of what issues the case properly turns upon.
Admitting such evidence implies that the defendant “is not
entitled to the presumption of innocence throughout trial and
deliberations.” State v. Mara, 98 Hawaii 1, 16, 41 P.3d 157,
172 (2002) (quoting United States v. Doyle, 130 F.3d 523, 538
(2d Cir. 1997)); accord United States v. Myers, 550 F.2d 1036,
1044 (5th Cir. 1977) (holding bad character evidence is not
admissible because “[a] concomitant of the presumption of
innocence is that a defendant must be tried for what he did, not
for who he is”). Further, the admission of prejudicial
character evidence that is irrelevant may color a juror’s view
of other evidence that is relevant, bolstering the government’s
case and diminishing the defendant’s such that the government’s
burden of proof is effectively reduced. A juror “may take it
upon herself to make a premature evaluation of the case” and
21
Because the use of character evidence is restricted under our
evidentiary rules, a defendant’s character is actually related to the jury’s
determination in only limited circumstances.
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conclude that she “need not hold the Government to its strict
burden [because] she is otherwise convinced of the accused’s
guilt.” Mara, 98 Hawaii at 16, 41 P.3d at 172.
In sum, the admission of irrelevant character evidence
invites jurors to make a premature evaluation of the case,
erodes the presumption of innocence, and raises the potential
that such evidence will be used in deciding the case based on
irrelevant considerations of who the defendant is and not what
the defendant has done. See id. In light of the evidentiary
record, it cannot be concluded beyond a reasonable doubt that
such impermissible speculation by the jury did not contribute to
Souza’s conviction.22 Thus, we vacate the circuit court’s
judgment as to both convictions and remand the case for further
proceedings.
IV. CONCLUSION
The circuit court in this case did not accept Souza’s
offer to admit to his prior conviction. The court instead
required Souza to either accept or reject the State’s proposed
stipulation without modification, which included facts that were
22
We stated in Murray that the “failure to allow the defendant to
use the stipulation procedure would not be considered harmless error.” 116
Hawaii at 20 n.14, 169 P.3d at 972 n.14. Because the harm from the court’s
error was manifest in this case, we do not address whether a court’s failure
to accept a defendant’s Murray stipulation to a prior conviction is
structural error that is per se harmful.
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not elements of prohibited possession of firearm and that were
prejudicial to Souza. If Souza accepted the proffered
stipulation, it would have the opposite effect that a Murray
stipulation is intended to accomplish, making it more rather
than less likely that the jury would decide the case on an
improper basis. But if Souza rejected the State’s proposed
stipulation, the court indicated that the State would then be
allowed to call witnesses to prove Souza’s prior conviction
which would have the effect of introducing irrelevant facts
through potentially prejudicial testimony. Neither option
conformed to Murray. The circuit court’s error was not harmless
beyond a reasonable doubt.
Accordingly, we vacate the ICA’s August 4, 2017
Judgment on Appeal and the circuit court’s June 18, 2013
Judgment of Conviction and Probation Sentence and remand the
case for further proceedings consistent with this opinion.
William H. Jameson, Jr. /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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