In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to the conviction.State v. Tabigne, 88 Haw. 296, 302, 966 P.2d 608, 614 (1998) (citations omitted). If there is a reasonable possibility that error might have contributed to a conviction in a criminal case, then the error cannot be harmless beyond a reasonable doubt, and the conviction must be set aside.
These allegations plead the first two elements of a negligence claim - a duty, and a breach of that duty. E.g., State v. Tabigne, 966 P.2d 608, 616 (Haw. 1998) ("nonconformity with relevant statutory standards may be admissible as evidence of negligence in civil cases"); Ono v. Applegate, 612 P.2d 533, 539 (Haw. 1980) ("a standard of conduct may be determined by reference to a statute").
755 F. Supp. 2d at 311. Hawai'i courts also recognize that violations of law may constitute evidence of negligence. See, e.g., State v. Tabigne, 88 Hawai'i 296, 304, 966 P.2d 608, 616 (1998) ("nonconformity with relevant statutory standards may be admissible as evidence of negligence in civil cases"). This rule, however, appears to be limited to Hawai'i law.
Accordingly, Tsujimura's conviction must be vacated and the case remanded to the district court for a new trial.See Tachibana v. State , 79 Hawai‘i 226, 240, 900 P.2d 1293, 1307 (1995) ("Once a violation of the constitutional right to testify is established, the conviction must be vacated unless the State can prove that the violation was harmless beyond a reasonable doubt."); State v. Tabigne , 88 Hawai‘i 296, 306-07, 966 P.2d 608, 618-19 (1998) (remanding the case for retrial after finding not harmless the constitutional error involved). For purposes of the harmless error analysis, it is assumed that the evidence regarding Tsujimura's performance of the FSTs was properly admitted, see supra note 6.
Essential to the court's reasoning, however, was the need to show a violation of a separate traffic law to provide the required degree of care by which to establish the negligent act that formed the basis of the negligent-vehicular-homicide conviction. Id.;see also State v. Tabigne, 88 Hawai‘i 296, 966 P.2d 608, 616 (1998) (holding that “the jury may, consistent with the requirements of due process and other rules peculiar to the criminal process, be allowed to consider relevant statutes or ordinances in criminal negligent homicide cases”). Employing this reasoning that the degree of care is determined by traffic laws for a negligent-vehicular-homicide conviction, we conclude that “an act or omission,” as used in NRS 484B.657(1), denotes a violation of a traffic law.
Hawai`i case law does not state that a violation of law, by itself, is sufficient to establish all the elements of negligence. See State v. Tabigne, 88 Haw. 296, 304, 966 P.2d 608, 616 (1998) (holding that juries may consider violations of statutory standards as evidence of negligence); see also Michel v. Valdastri, Ltd., 59 Haw. 53, 55, 575 P.2d 1299, 1301 (1978) (holding that defendant's failure to conform to standards established by law . . . is admissible as evidence of negligence)"; Sherry v. Asing, 56 Haw. 135, 149, 531 P.2d 648, 658 (1975) (holding that violation of an ordinance was an "appropriate question of fact for the jury to decide in connection with the issue of negligence"); Young v. Honolulu Constr. Draying Co., Ltd., 34 Haw. 426, 435 (1938) (holding that the violation of an ordinance prescribing duty "is evidence of negligence sufficient to require the question of negligence to be submitted to the jury"). Moreover, the cases cited by Plaintiffs do not support their proposition that the law is that "a violation of law, by itself, is sufficient to establish negligence."
In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to the conviction.State v. Tabigne, 88 Hawai`i 296, 302, 966 P.2d 608, 614 (1998) (citations omitted). If there is a reasonable possibility that error might have contributed to a conviction in a criminal case, then the error cannot be harmless beyond a reasonable doubt, and the conviction must be set aside.
Furthermore, "[m]erely informing the jury that it should consider the court's instructions as a whole cannot obviate an error of omission where the remaining instructions fail to provide the crucial information." State v. Tabigne, 88 Haw. 296, 305, 966 P.2d 608, 617 (1998) (emphasis in original). In Pinero I, this court examined whether the omission of the mental element of a crime from jury instructions constituted prejudicial error and held that it did. 70 Haw. at 526-27, 778 P.2d at 715-16.
In that context, the real question becomes whether there is a reasonable possibility that error may have contributed to the conviction. State v. Tabigne, 88 Haw. 296, 302, 966 P.2d 608, 614 (1998) (citations omitted). If there is a reasonable possibility that error might have contributed to a conviction in a criminal case, then the error cannot be harmless beyond a reasonable doubt, and the conviction must be set aside.
(Brackets and emphases in original.) The above-quoted instruction, of course, implicates this court's decisions in State v. Tabigne, 88 Haw. 296, 966 P.2d 608 (1998), and State v. Pone, 78 Haw. 262, 893 P.2d 455 (1995), as well as the Intermediate Court of Appeals' decision in State v. Mitchell, 88 Haw. 216, 965 P.2d 149 (App. 1998), pertaining to the application of Hawaii Rules of Evidence (HRE) Rule 306 (1993) in criminal cases. [A]n HRE 306(a) presumption against the accused, whether recognized at common law or enacted by statute, see HRE 306(a)(1), merely creates a "permissible inference of fact" whereby the trier of fact "is permitted but not compelled to draw an inference of guilt from the circumstances which constitute a prima facie case" and retains the prerogative "to determine whether a reasonable doubt of guilt exists despite the permitted inference, whether or not the accused has offered any evidence."