Opinion
No. CAAP–13–0000056.
10-29-2015
STATE of Hawai‘i, Plaintiff–Appellee, v. John Albert WAGNER, Defendant–Appellant.
John Albert Wagner, Jr., on the briefs, Defendant–Appellant, pro se. Jason R. Kwiat, Deputy Prosecuting Attorney, County of Hawai‘i, on the briefs, for Plaintiff–Appellee.
John Albert Wagner, Jr., on the briefs, Defendant–Appellant, pro se.
Jason R. Kwiat, Deputy Prosecuting Attorney, County of Hawai‘i, on the briefs, for Plaintiff–Appellee.
SUMMARY DISPOSITION ORDER
[136 Hawai'i 1]
Defendant–Appellant John Albert Wagner, Jr. (Wagner), appeals from the Judgment of Conviction and Sentence entered by the Circuit Court of the Third Circuit (Circuit Court) on November 19, 2012. This case arises out of the execution of a search warrant conducted on December 23, 2010 at Wagner's residence.
The Honorable Elizabeth A. Strance presided.
In Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the Court extended the general rule in Apprendi in holding that any fact that increases a mandatory minimum sentence for a crime is an element of the crime, not a sentencing factor, that must be submitted to the jury. Alleyne, 133 S.Ct. at 1255. However, Alleyne did not disturb the exception set forth in Apprendi for prior convictions. Id. at 2160 n. 1.
On appeal, Wagner argues pro se that the Circuit Court erred when it (1) denied his motion to suppress evidence because (a) the search warrant was improper as to form; (b) probable cause to issue the warrant was lacking; (c) the executing officer did not satisfy the requirements of Hawaii Revised Statutes (HRS) § 803–37 (2014); and (d) the executing officer did not permit Wagner to be present during the search; (2) allowed presentation to the jury of Wagner's stipulation that he had a prior conviction; (3) limited his cross-examination of the police officer who led the investigation; (4) denied his motion to compel disclosure of the police informant's identity where there was testimony that a male individual was at Wagner's residence shortly before the execution of the warrant; (5) accepted the jury's guilty verdict when there was insufficient evidence to convict; (6) permitted biased jurors to be empaneled; (7) did not instruct the jury as to prior bad acts evidence prior to testimony; and (8) it abused its discretion. Wagner also claims (9) prosecutorial misconduct; and (10) that he did not have effective assistance of counsel.
Wagner did not file his appeal within thirty days after entry of the November 19, 2012 judgment as required by Hawai‘i Rules of Appellate Procedure (HRAP) Rule 4(b)(1) and (3). Instead, his notice of appeal was filed on January 29, 2013. The Circuit Court's minutes indicate that, on December 19, 2012, the Circuit Court granted Wagner's request for extension of time to file his appeal until February 8, 2013. However, the Circuit Court was not authorized to grant a continuance for filing a notice of appeal for more than 30 days. HRAP Rule 4(b)(5).
Nevertheless, “[i]n criminal cases, [the Supreme Court of Hawai‘i] ha[s] made exceptions to the requirement that notices of appeal be timely filed.” State v. Irvine, 88 Hawai‘i 404, 407, 967 P.2d 236, 239 (1998); State v. Allen, 2 Haw.App. 606, 612–13, 638 P.2d 338, 343 (1981). Therefore, we will address Wagner's appeal on the merits.
This difference between the “Supp, 2001” and “Supp.2002” versions of HRS § 291E–61 was not material to the supreme court's analysis in Dominaues and Kekuewa. The only difference between these versions of HRS § 291E–61 was that in the Supp.2002 version, a $25 surcharge for the neurotrama special fund was added to the penalties set forth in HRS § 291E–61(b)(1) through (b)(4). See 2002 Haw. Sess. Laws Act 160, § 11 at 566–67.
On November 25, 2013, after Wagner's appointed counsel, Teresa D. Morrison (Morrison), filed an opening brief and the State filed its answering brief, Morrison filed on Wagner's behalf, the “Second Motion to Withdraw as Counsel” based in part on Wagner's claim Morrison provided ineffective assistance of counsel. On December 18, 2013, this court granted Wagner's motion, remanding this case to the Circuit Court to hear and determine a motion for withdrawal and substitution of counsel. In the meanwhile, Wagner, without leave of court, filed his December 17, 2013 “Pro Se Supplemental Brief to Openning [sic] Brief of Defendant/Appellate [sic].”
On January 22, 2014, the Circuit Court excused Morrison as attorney of record but appointed her as standby counsel for the purpose of assisting Wagner. By order dated February 24, 2014, and amended by order of March 12, 2014, this court authorized Wagner to file an amended supplemental brief to replace the unauthorized December 17, 2013 Supplemental brief. This court eventually extended the time for filing Wagner's amended supplemental brief to August 8, 2014. On July 22, 2014, Wagner filed his “Opening Brief” (Opening Brief) pro se. We therefore address Wagner's issues as presented in his Opening Brief.
Under HRS § 604–8 (Supp.2014), the district court's criminal jurisdiction is limited to misdemeanor or lesser offenses. In addition, the district court loses jurisdiction over a case involving such offenses where a defendant who has the right to a jury trial timely demands a jury trial. HRS § 604–8.
After a careful review of the issues raised and the arguments made by the parties, the record on appeal, and the relevant legal authority, we resolve Wagner's issues as follows and affirm.
1. THE MOTION TO SUPPRESS EVIDENCE.
Wagner's points of error A–D challenge the Circuit Court's decision to deny his Motion To Suppress. Although Wagner does not challenge any of the Circuit Court's findings of fact or conclusions of law by citation to the Record on Appeal or quotation, he does identify the proceedings he believes are at issue by citation to the transcripts of hearings held on July 30, 2012 and December 28, 2011 giving some specificity to his arguments. The July 30, 2012 hearing concerned two motions to suppress. The first concerned Wagner's challenge to the execution of the search warrant. The second was based on his challenge to the form of the warrant. We address the latter first.
A. Challenge to the search warrant's form.
Wagner argues that defects in the form of the search warrant rendered it void. Specifically, Wagner asserts that the “affidavit used to produce the search warrant does not bear the magistrate's official designation [ ] nor is the affidavit notarized or impress [sic] with the seal of the court” and has only been rubber stamped with the word “SEAL.” Wagner relies on HRS § 803–34 (2014) and Hawai‘i Rules of Penal Procedure (HRPP) Rule 41.
Wagner cites here to Exhibit C, one of twenty-eight exhibits attached to his Opening Brief. However, as many, if not most of these exhibits appear to be excerpts of documents and in any event do not indicate whether they are part of the record on appeal by citation to the record, they will be disregarded, except in those instances where the exhibit bears indicia that it is an accurate copy of a document contained in the record. HRAP Rule 28(b)(10). For example, Exhibit C appears to be the first page of the Affidavit for Search Warrant, the last page of the warrant purporting to show the issuing judge's signature, and the nine-page “Affidavit of Officer Erich Jackson” (Officer Jackson) also labeled “Attachment 3.” Wagner does not provide record citations to where these documents may be found. Rather, he states only that “[t]he affidavit provided from the discovery (HRPP rule 16) appears to be misleading (see exhibit C) ...” Therefore, Exhibit C will be disregarded.
In Murray, the Hawai‘i Supreme Court relied in part on the analysis in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). However, Old Chief involved the federal felon-in-possession statute, which prohibits the possession of a firearm by anyone with a prior felony conviction. For the federal felon-in-possession offense, the specific name or nature of the prior conviction (other than its status as a felony) is not an element of the offense. Thus, any felony is sufficient to satisfy the prior-conviction element of the federal felon-in-possession offense, and the jury does not have to know or determine the specific type of crime of which the defendant was previously convicted. In contrast, where the statute specifies that the defendant's prior conviction must be for a particular type of offense to enhance the defendant's punishment, proof that the defendant had a prior conviction, without identifying the specific nature of the prior conviction, would not satisfy the requirements of the statute.
§ 803–34 Contents. The warrant shall be in writing, signed by the magistrate, with the magistrate's official designation, directed to some sheriff or other officer of justice, and commanding the sheriff or other officer to search for and bring before the magistrate, the property of articles specified in the affidavit, to be disposed of according to justice, and also to bring before the magistrate for examination the person in whose possession the property or article may be found.
also disagree with the supreme court's imposition of a colloquy requirement in the circumstances presented by Murray and allowing a defendant to vacate his or her conviction if the colloquy requirement is not satisfied, The stipulation to a defendant's prior convictions permitted by Murray is for the benefit of the defendant; it provides the defendant with the chance to reduce the potential prejudice that would otherwise result from the prosecution proving the details of the defendant's prior convictions. To permit a defendant to overturn his or her conviction because the trial court failed to engage in a colloquy over a stipulation sought by, and for the benefit of, the defendant seems odd. At minimum, the defendant should be required to show that the defendant suffered some prejudice from the trial court's failure to engage in the required colloquy, such as there was some defect in or impediment to the prosecution's proof of the prior convictions. However, under the Murray analysis, the defendant would apparently be entitled to a new trial due to a deficient colloquy even though the stipulation was beneficial to the defendant and the prosecution would have been able to easily prove the prior convictions.
Stipulations regarding evidence are matters of trial strategy. In my view, imposing a colloquy requirement for essential-element stipulations injects the trial judge into matters of trial strategy and intrudes on the attorney-client relationship.
Rule 41. Search and Seizure.
....
(c) Issuance and Contents. A warrant shall issue only on an affidavit or affidavits sworn to before the judge and establishing the grounds for issuing a warrant.
Wagner does not support his argument with record references. Even if we were to consider Wagner's Exhibit C, it does not support Wagner's position that the warrant and/or application was defective as to form as it shows the applying officer was duly sworn before the judge, identified as a judge of the District Court of the Third Circuit. Finally, neither HRPP Rule 41 nor HRS § 803–34, upon which Wagner relies, requires a seal of any type be affixed to the magistrate's signature. Thus, Wagner has not shown the search warrant is defective as to matters of form.
For the same reasons, we must reject Wagner's sub-argument that his constitutional rights under the fourth amendment to the United States Constitution and article I section 7 of the Hawai‘i State Constitution were violated because state and federal statutory provisions-HRS §§ 803–34, 606.3, 456–18, 803–32 and United States Code (USC) Title 28 § 638(c) ¶ 16 and 1 USC § 114–were not complied with.
B. Probable cause for the issuance of the search warrant.
[136 Hawai'i 2]
Wagner argues that the search warrant was not supported by probable cause. Specifically, Wagner alleges (1) that the affiant did not corroborate the informant's information; (2) that neither the affiant nor informant were within the residence to observe contraband or paraphernalia; and (3) that there was no basis for the informant's conclusion regarding the location of objects sought.
Wagner does not dispute that the affidavit in support of the search warrant averred that “the confidential informant has purchased methamphetamine at the instruction of your affiant on previous occasions. Your affiant has corroborated said information [through] police investigations and other independent means[ ]” as quoted by the Circuit Court during the December 28, 2011 hearing on his motion to suppress. Nor does he dispute that the affidavit averred the confidential informant participated in a controlled purchase of methamphetamine from Wagner. The Circuit Court also noted that the affidavit contained “statements that the confidential informant states that Mr. Wagner distributed ice from both his residence, located on Kumakani Street, and various vehicles he utilizes.” Although the amount of U.S. currency used to purchase the narcotics was undisclosed, that fact is not material to the finding of probable cause for the warrant. Wagner's claim that the affidavit includes no information about the existence and type of narcotics purchased is also contradicted by the documents he relies on. The affidavit alleged facts sufficient to support the issuing court's conclusion of probable cause.
Indeed, Wagner attached, as Exhibit H to his June 27, 2011 Supplement to Defendant's Request for Franks Hearing, a copy of what appears to be the officer's affidavit in support of the search warrant, which corresponds to the Circuit Court's comments at the December 28, 2011 hearing. This exhibit also reflects the affiant averred that a controlled purchase of crystal methamphetamine by the confidential informant from Wagner at his residence was conducted within five days of the affidavit.
C. Execution of the search warrant.
Wagner argues that the Circuit Court erred when it concluded Officer Jackson's execution of the search warrant complied with HRS § 803–37.
§ 803–37 Power of officer serving. The officer charged with the warrant, if a house, store, or other building is designated as the place to be searched, may enter it without demanding permission if the officer finds it open. If the doors are shut the officer must declare the officer's office and the officer's business, and demand entrance. If the doors, gates, or other bars to the entrance are not immediately opened, the officer may break them. When entered, the officer may demand that any other part of the house, or any closet, or other closed place in which the officer has reason to believe the property is concealed, may be opened for the officer's inspection, and if refused the officer may break them.
(Emphasis added.)
Wagner does not challenge the Circuit Court's Findings of Fact underlying the challenged decision. “Findings of fact that are unchallenged on appeal are the operative facts of a case.” Cun–Lara v. State, 126 Hawai‘i 541, 544 n. 5, 273 P.3d 1227, 1230 n. 5 (App.2012) (citation and internal quotation marks omittted). The Circuit Court found, in relevant part, that
6.) [Officer Jackson] immediately exited the passenger side of this vehicle and in a loud, clear voice identified himself as a police officer, stating repeatedly “police, search warrant, demand entry.” The statements were directed towards [Wagner].
7.) During the suppression hearing, Officer Jackson demonstrated the loud volume and tone of his voice when announcing “police, search warrant, demand entry.”
8.) As Officer Jackson approached the lanai of the Subject Residence and while making his announcement, he and [Wagner] made direct eye contact with each other. [Wagner] who was still standing on the lanai made no movement or gesture of an intention to grant entry to the lanai.
9.) [Wagner's] testimony that he did not see any vehicle pull up to his property is not credible and it is inconceivable that he did not hear Officer Jackson announce “police, search warrant, demand entry.”
[136 Hawai'i 3]
...
12.) [Wagner's] testimony that the police failed to demand entry and failed to inform him of the existence of the search warrant is not credible.
...
17.) Mrs. Wagner's testimony that she could not hear the knock and that it took her only a few seconds to get out of bed and to the front of the house is not credible.
These facts are sufficient to support the Circuit Court's decision. HRS § 803–37; State v. Garcia. 77 Hawai‘i 461, 465, 887 P.2d 671, 675 (App.1995).
D. Wagner's right to be present during execution of the warrant.
Wagner argues that he had the right “to be present and see from whence the contraband was obtained.” Although Wagner apparently relies on HRS § 803–37 for this alleged right, the plain language of the statute does not support such a claim. Wagner also apparently relies on State v. Diaz, 100 Hawai‘i 210, 229–30, 58 P.3d 1257 (2002) (dissenting opinion of Acoba, J.) and The King v. Ah Lou You, 3 Haw. 393 (1872), but without any explanation. Neither case stands for Wagner's asserted proposition.
Wagner has not shown the Circuit Court erred in denying his Motion to Suppress.
2. Introduction of the parties' stipulation regarding Wagner's prior conviction.
Wagner also argues that the Circuit Court abused its discretion when it allowed reading to the jury the parties' stipulation regarding Wagner's prior felony conviction because it was “bad act” evidence, in violation of his rights under article 1, sections 5, 6, 7, and 14 of the Hawai‘i State Constitution. The record reflects that the Circuit Court followed the procedure mandated in State v. Murray, 116 Hawai‘i 3, 169 P.3d 955 (2007), where a defendant also stipulated to a prior conviction for the same offense where such was an element of the current offense. There was no abuse of discretion here.
3. Limitation of cross-examination of Officer Jackson about Halemau and Pea pursuant to HRE Rule 404(b).
Wagner argues that the Circuit Court erred when it precluded defense counsel from cross-examining Officer Jackson about Halemau and Pea because (1) under Hawaii Rules of Evidence (HRE) Rule 404(b) “the admissibility of such evidence only pertains to the character of the accused, victim, and/or witness [;]” (2) the Circuit Court was required to conduct an HRE Rule 403 balancing test prior to ruling, the evidence was relevant and the State did not show it would be prejudiced by the evidence; and (3) the exclusion of this prior drug use evidence violated his right to confront witnesses under article 1, section 14 of the Hawai‘i State Constitution.
First, by its plain language, the exclusion codified in HRE Rule 404(b) applies to all “person[s],” and is not limited to “the accused, victim, and/or witness” as asserted by Wagner. He presents no authority supporting his contrary proposition. Moreover, Wagner does not demonstrate that he provided advance notice of his intent to use this evidence as required by HRE Rule 404(b).
Rule 404 Character evidence not admissible to prove conduct; exceptions; other crimes.
....
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial.
(Emphasis added.)
[136 Hawai'i 4]
Second, without explanation, Wagner argues that, under HRE Rule 403, admission of “[t]he evidence of Mr. Halemau's history of drug use or selling was relevant under HRE 401 to Mr. Wagner's state of mind” and “such information in support of Mr. Wagner's defense would [have assisted] the jury in assessing the evidence and the location of where the items were retrieved.” Wagner does not explain how Halemau's alleged history of drug use or sale is relevant to the trafficking and paraphernalia crimes with which Wagner was charged. Although Wagner claims there was evidence Halemau was at Wagner's residence prior to the execution of the warrant, he does not provide a citation for that evidence and Officer Jackson denied seeing Halemau during pre-execution surveillance. As Wagner failed to establish the relevancy of this evidence, there was no balancing necessary.
As to Pea, Wagner was allowed to question Officer Jackson regarding Pea's prior law enforcement contacts involving drugs, that she was present at the residence on the date of the offense and was also arrested for the same methamphetamine and drug paraphernalia with which Wagner was arrested and, most importantly, pleaded guilty to charges stemming from the same, although Officer Jackson was not sure of the exact nature of those charges. Wagner was also allowed, without objection, to examine Officer Jackson about Pea's trustworthiness and his knowledge of Pea's drug use during the period of August through December 2010. Given this testimony, the exclusion of largely hearsay testimony regarding whether she traded sex for methamphetamine at some unspecified time, or was at a drug rehabilitation facility after this offense, or whether she smoked the drug on the date of the offense, was of marginal relevance and was cumulative. HRE Rules 401, 403.
Furthermore, the protections of the Confrontation Clause are not absolute; they do not categorically prevent exclusion of any testimony a defendant wishes to elicit. State v. Pond, 118 Hawai‘i 452, 465, 193 P.3d 368, 381 (2008) ( “HRE Rule 404(b) is not per se unconstitutional even though it may restrict a defendant's constitutional right to confront an adverse witness.”)
The Circuit Court did not abuse its discretion when it precluded defense counsel from limiting inquiry into the prior bad acts of Halemau and Pea.
4. Wagner's motion to compel the disclosure of the confidential informant.
Wagner argues that the Circuit Court erred when it denied his motion to compel the State to disclose the name of the confidential informant because “the informant may have evidence to the testimony of guilt or innocence of the defendant.”
HRE Rule 510 allows the prosecution to refuse disclosure of the identity of a confidential informant, subject to exceptions. Wagner claims the exceptions in HRE Rule 510(c)(2) and (3) apply. The prosecution submitted affidavits for the Circuit Court's review, in camera. Thereafter, the Circuit Court entered its order denying Wagner's motion, noted that Wagner is not seeking the identity of the confidential informant, but rather confirmation of his suspicion regarding the informant's identity, and in any event that there was “an absence of evidence that the confidential informant may be able to give testimony necessary to a fair determination of the issue of guilt or innocence” under HRE Rule 510(c)(2).
Rule 510 Identity of informer. (a) Rule of privilege. The ‘government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
....
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the government is a party, and the government invokes the privilege, the judge shall give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony....
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed....
[136 Hawai'i 5]
Upon our review of the materials submitted in camera, we agree.
5. Sufficiency of the evidence.
Wagner argues that the sentence and judgment against him “should be vacated due to insufficient evidence in the record that Mr. Wagner knowingly possess [sic] the contraband found.” Wagner further argues that “multiple occupants occupied the room ... [a]nd co-defendant Deshalynn Pea admitted to the charge” and advances reasons why various witnesses should or should not have been believed.
In reviewing the sufficiency of the evidence, a court must view the evidence in the light most favorable to the prosecution. State v. Tamura, 63 Haw. 636, 637, 633 P.2d 1115, 1117 (1981). “The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.” State v. Richie, 88 Hawai‘i 19, 33, 960 P.2d 1227, 1241 (1998) (block quote format and citation omitted). “It is the province of the jury, not the appellate courts, to determine the credibility of witnesses and the weight of the evidence.” State v. Smith, 106 Hawai‘i 365, 372, 105 P.3d 242, 249 (App.2004).
Wagner was charged with one count of Methamphetamine Trafficking, which requires proof that he possessed an ounce or more of methamphetamine, and two counts of drug paraphernalia, which requires proof that he possessed zip packets, scales, straws, or glass pipes with the intent to use them to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance[.]” See HRS §§ 712–1240.7 (2014) and 329–43.5 (2010).
Officer Jackson testified that he was familiar with methamphetamine and drug paraphernalia through his experience and training, discovered among other things, upon entering what other occupants of the house indicated was Wagner's bedroom, $967 on the bed, more currency bound by rubber bands found in a shoe; a wallet containing documents bearing Wagner's name; a methamphetamine smoking pipe; zip packets found in a man's jacket; a digital scale and angle cut straw—usually used to transfer methamphetamine for weighing—from the pocket of a man's gray and black flannel shirt; $10,000 in currency from the pocket of a new, gray man's dress shirt; more zip packets from the pocket of a darker gray man's shirt; and a notebook that contained what appeared to be drug notes. Officer David Matsushima recovered all of the sixteen packets discovered in the bedroom and submitted them into evidence. The net aggregate weight of the contents of all sixteen envelopes was eventually determined by police criminalist Edward Oshiro to be 45.38 grams or approximately 1.6 ounces and identified as methamphetamine. Taking all the evidence in the light most favorable to the prosecution, the record contains sufficient and substantial evidence to support the jury verdict.
6. Jury selection.
[136 Hawai'i 6]
Wagner argues that his right to be tried by a panel of impartial jurors under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I Sections Five and Fourteen of the Hawai‘i State Constitution, was violated because the chosen jurors made various allegedly biased remarks. Specifically, Wagner asserts that (1) “the record is void to any reference [Juror # 7, Peter Chaput] could be fair and impartial[;]” (2) juror # 23 Chad Lukeala informed the Circuit Court that he knew two of the witnesses and did not want to judge people that he would see on a daily basis; and (3) Juror # 9 Debra Cox, along with Jurors Lukeala and Chaput stated that they tended to believe police officers.
However, all three jurors were passed for cause. “A defendant in a criminal case cannot sit in silence and accept a juror as unprejudiced and fair and then subsequently allege error in the retention of the same juror.” Territory v. Fukunaga, 30 Haw. 697, 704, appeal dismissed, 33 F.2d 396 (9th Cir.), cert. denied, 280 U.S. 593, 50 S.Ct. 39, 74 L.Ed. 641 (1929), quoted with approval in State v. Graham, 70 Haw. 627, 634, 780 P.2d 1103, 1107–08 (1989).
Wagner has failed to show error in the selection of the jury.
7. Curative instructions on prior bad acts.
Wagner argues that he was “prejudiced ... when the mention of [his] prior conviction, [ ] although not the nature of the offense, was continuously mentioned throughout the trial” and no curative instruction was given prior to the testimony. However, as noted by Wagner, the Circuit Court did give a limiting instruction to the jury at the same time the stipulation to his prior conviction was read. Wagner's point is without merit.
8. General accusations that the Circuit Court abused its discretion.
Wagner restates a half-dozen arguments under the general heading that “[t]he court abused its discretion.” These assertions were previously addressed and/or are undecipherable and are without merit.
9. Prosecutorial Misconduct.
Wagner alleges improper conduct by the prosecution based on (a) withholding unspecified “testimony” that “could be viewed as a Brady violation”; (b) improper issuance of the search warrant; (c) “open[ing] the door to priors” in the opening statement; (d) “open[ing] the doors to priors by witness” (e) withholding evidence, insinuating Wagner was falsifying evidence and calling him a liar; “misquot[ing] scene” of the crime and the layout of evidence; (f) providing insufficient discovery; misquoting the law; presenting no evidence Wagner sold or possessed methamphetamine; and (g) stating in closing argument that there was “no evidence of police contact” where it had introduced “throughout the trial” evidence of his “priors” and presenting multiple instances of hearsay testimony, which Wagner apparently equates with perjured testimony.
Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction. Factors to consider are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant.
[136 Hawai'i 7]
State v. Rogan, 91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999) (citations and internal quotation marks omitted).
Wagner's allegations are either addressed above or are conclusions without argument or otherwise indecipherable. Against these weak allegations is the strong circumstantial evidence presented at trial which, as discussed above, established Wagner had constructive possession of the requisite amount of methamphetamine and drug paraphernalia. Wagner's assertions of prosecutorial misconduct are without merit.
10. Ineffective Assistance of Counsel.
Wagner argues that he suffered from ineffective assistance of counsel because (A) court-appointed defense counsel Peter Bresciani (Bresciani) failed to incorporate certain grounds in the motion to suppress; (B) due to Bresciani's neglect “in order for motion to suppress to be heard, Mr. Wagner must waive his right to a speedy trial[;]” and due to Bresciani's “dishonesty” Wagner requested to see the original search warrant documents; (C) Bresciani did not properly argue the motion to suppress to force identification of the informant pursuant to HRE Rule 510; (D) Bresciani withdrew as counsel; (E) replacement defense counsel Ivan Van Leer (Van Leer) failed to file motions on time; (F) “Counsel failed to cite relevant case authority to [illegible ] bad act motion [;]” (G) jurors Cox, Lukeala, and Chaput have current or past relationships with law enforcement or have a tendency to believe law enforcement; (H) there were no objections to the introduction of Wagner's prior conviction; (I) there were no objections to the prosecutions questions “which allowed testimony of Mr. Wagner's priors into trial”; (J) there were no objections to the prosecution's closing argument regarding Wagner's prior contacts with law enforcement; and (K) defense counsel did not inform or present Wagner with documents such as the presentence report, and plea offer in lieu of mandatory terms.
The Supreme Court of Hawai‘i has explained that
When an ineffective assistance of counsel claim is raised, the question is: When viewed as a whole, was the assistance provided to the defendant within the range of competence demanded of attorneys in criminal cases? Additionally,
the defendant has the burden of establishing ineffective assistance of counsel and must meet the following two-part test: 1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors, or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense. This court will not judge the assistance provided the defendant ineffective solely by hindsight. A defendant who meets the two-prong test has proven the denial of assistance within the range of competence demanded of attorneys in criminal cases.
State v. Silva, 75 Haw. 419, 439–40, 864 P.2d 583, 593 (1993) (citations, internal quotation marks, and brackets omitted). In addition, “matters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.” State v. Richie, 88 Hawai‘i 19, 39–40, 960 P.2d 1227, 1247–48 (1998) (citation and internal quotation marks omitted).
[136 Hawai'i 8]
In sub-argument A, Wagner makes vague references to five different motions or arguments relating to the suppression of evidence and claims that Bresciani failed to file motions regarding these issues or arguments and engaged in “repetitious dishonesty” with Wagner. However, the record reveals that Bresciani did file a timely motion to suppress. To the extent that it did not contain all the grounds Wagner now asserts it should have, we presume Wagner has raised those grounds in his Opening Brief. As we have previously concluded those grounds are without merit, they are not a valid basis for alleging ineffective assistance of his counsel. To the extent Wagner accuses his counsel of “dishonesty,” his citations to the record merely repeat Wagner's own allegations and beliefs and as such do not establish his claim that his counsel was dishonest.
In sub-argument B, Wagner makes conclusory allegations that delay was caused by his counsel's “neglect.” The transcript to which Wagner cites is not part of the record on appeal. Review of the court's minutes for that date shows only that Wagner was not brought to the court from prison, but not the reason he was not transported. Therefore, we reject his argument.
Wagner next argues in sub-argument C that his counsel failed to supplement Wagner's pro se motion to disclose the identity of the confidential informant filed with the Circuit Court. However, he does not identify, either by argument or by citation to the record, with what materials the supplementation should have been made. We therefore also reject this argument.
In sub-argument D, Wagner points to Bresciani's withdrawal as counsel without any argument that this constituted ineffective assistance of counsel. We therefore deem this argument waived.
Wagner argues that Van Leer was ineffective, in sub-argument E, because he filed certain motions after the court's deadline, leading to their denial. However, Wagner has failed to argue that any of these motions would have been successful. We therefore conclude that Wagner has failed to show these errors impaired a potentially meritorious defense.
We have previously decided that the Circuit Court followed proper procedure with regard to informing the jury of the parties' stipulation to Wagner's prior felony conviction. We therefore reject Wagner's sub-argument F, which is also based on his counsel's representation in this respect.
Sub-argument G is based on the seating of Jurors Chaput, Cox, and Lukeala. The selection of jurors is generally a strategic decision. American Bar Association, Standards for Criminal Justice–Prosecution Function and Defense Function, Standard 4–5.2(b) (3d ed. 1993) (“Strategic and tactical decisions should be made by defense counsel, after consultation with the client where feasible and appropriate. Such decisions include ... what jurors to accept or strike[.]”) “Matters presumably within the judgment of counsel, like trial strategy, will rarely be second-guessed by judicial hindsight.” State v. Richie, 88 Hawai‘i at 39–40, 960 P.2d at 1247–48 (citations and internal quotation marks omitted). The record reveals that Van Leer was an active participant in general voir dire and Wagner fails to allege his counsel failed to consult with him in passing these jurors for cause or in exercising peremptory challenges on other jurors. We decline to look behind counsel's strategic decision.
[136 Hawai'i 9]
Wagner's sub-argument H, regarding the introduction of the stipulation to his prior felony conviction, has been addressed above and decided against him and thus cannot be a basis for claiming his attorney was ineffective.
Wagner's sub-argument I, regarding the failure of counsel to object to the State's questioning of Wagner as allowing further testimony regarding Wagner's “priors,” is without basis. Van Leer objected to the questions during the passage Wagner cites and, in any event, the prosecution did not ask questions regarding any prior convictions.
In sub-argument J, Wagner points to his counsel's failure to object to “statements that the Prosecution made regarding prior contacts with law enforcement.” The only statement the prosecution made at the point Wagner identifies was “Defendant's theories. There's no evidence of a police conspiracy. There's no evidence the defendant was persecuted for any prior contacts with law enforcement.” Wagner does not claim the prosecutor's arguments were incorrect, and they appear to be in response to the defense theory of the case and therefore fair argument. Under the circumstances, it was not error for Wagner's counsel to refrain from objecting to this argument.
Finally, in sub-argument K, Wagner complains that his counsel failed to provide him with the documents pertaining to sentencing. The record indicates that Wagner chose not to review the PSI with his counsel, Van Leer, who offered to give him a copy of the PSI prior to sentencing. At the sentencing hearing, Wagner was given a copy of the PSI along with the State's motion to impose mandatory minimums.
Wagner has failed in his burden to show his counsels were ineffective.
Based on the foregoing, we affirm the Judgment of Conviction and Sentence entered by the Circuit Court of the Third Circuit on November 19, 2012.
Concurring Opinion by NAKAMURA, C.J.
I concur with the result reached by the majority. I write separately, however, to express my view on the question of whether a defendant's prior methamphetamine trafficking convictions are an element of the first-degree methamphetamine trafficking offense for the jury to decide at trial, or a sentencing enhancement factor for the judge to decide at sentencing.
The Circuit Court permitted evidence of the defendant's prior felony conviction to be presented to the jury based on its view that such evidence was necessary to prove the charged methamphetamine trafficking offense. In affirming the Circuit Court, the majority necessarily agrees with the Circuit Court's interpretation of Hawaii Revised Statutes (HRS) § 712–1240.7 (2014) as making a defendant's prior methamphetamine trafficking convictions an element of the first-degree methamphetamine trafficking offense. I concur in the majority's decision on this issue because I believe it is dictated by precedents of the Hawai‘i Supreme Court. However, if writing on a clean slate, I would hold that a defendant's prior methamphetamine trafficking convictions are not an element of the offense for the jury, but are a sentencing enhancement factor for the judge to decide. I believe that the supreme court should revisit its precedents because, in my view, the cases were incorrectly decided and have led to unintended and unsatisfactory consequences.
I.
A.
[136 Hawai'i 10]
Defendant–Appellant John Albert Wagner, Jr. (Wagner) was charged in Count 1 of the second amended complaint with first-degree methamphetamine trafficking, in violation of HRS § 712–1240.7(1)(a), for possession of one ounce or more of substances containing methamphetamine. First-degree methamphetamine trafficking is a class A felony that carries a maximum penalty of twenty years of imprisonment. The firstdegree methamphetamine trafficking statute also imposes a mandatory minimum imprisonment term of between two years and eight years for a first offense, and it imposes higher mandatory minimum terms for defendants with prior methamphetamine trafficking convictions.
HRS § 712–1240.7 provides:
(1) A person commits the offense of methamphetamine trafficking in the first degree if the person knowingly:
(a) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more containing methamphetamine or any of its salts, isomers, and salts of isomers;
(b) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more containing methamphetamine or any of its salts, isomers, and salts of isomers;
(c) Distributes methamphetamine in any amount to a minor; or
(d) Manufactures methamphetamine in any amount.
(2) Methamphetamine trafficking in the first degree is a class A felony for which the defendant shall be sentenced as provided in subsection (3).
(3) Notwithstanding sections 706–620(2), 706–640, 706–641, 706–659, 706–669, and any other law to the contrary, a person convicted of methamphetamine trafficking in the first degree shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment of not less than two years and not greater than eight years and a fine not to exceed $20,000,000; provided that:
(a) If the person has one prior conviction for methamphetamine trafficking pursuant to this section or section 712–1240.8, the mandatory minimum term of imprisonment shall be not less than six years, eight months and not greater than thirteen years, four months;
(b) If the person has two prior convictions for methamphetamine trafficking pursuant to this section or section 712–1240.8, the mandatory minimum term of imprisonment shall be not less than thirteen years, four months and not greater than twenty years; or
(c) If the person has three or more prior convictions for methamphetamine trafficking pursuant to this section or section 712–1240.8, the mandatory minimum term of imprisonment shall be twenty years.
(Emphases added.)
Wagner's second amended complaint alleged in Count 1 that he had one prior conviction for methamphetamine trafficking. Therefore, if the State proved both Wagner's alleged current methamphetamine trafficking violation and that he had a prior methamphetamine trafficking conviction, Wagner was subject to twenty years of incarceration and a mandatory minimum term of between six years, eight months and thirteen years, four months.
B.
[136 Hawai'i 11]
In my view, given the plain language and structure of HRS § 712–1240.7, it should be interpreted as making a defendant's prior methamphetamine trafficking convictions a sentencing enhancement factor, and not an element of the offense. HRS § 712–1240.7(1), the portion of the statute that defines the methamphetamine trafficking offense, does not refer to a defendant's prior methamphetamine trafficking convictions. The references to a defendant's prior methamphetamine trafficking convictions only appear in the sentencing provisions of the statute, HRS § 712–1240.7(3). Under a plain reading of the statute, I believe that the Legislature did not intend a defendant's prior methamphetamine trafficking convictions to be an element of the offense, but instead intended that they be a factor that the trial judge must apply in imposing sentence, once the defendant is convicted of the offense described in HRS § 712–1240.7(1).
Construing a defendant's prior methamphetamine trafficking convictions as a sentencing factor for the judge to determine, and not an element of the offense for the jury to decide, would hot contravene a defendant's constitutional jurytrial right. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that “[ o ] ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added).1 / Here, construing a defendant's prior methamphetamine trafficking convictions as a sentencing factor, consistent with the Legislature's apparent intent, would fall squarely within the exception in Apprendi for the fact of a prior conviction that need not be submitted to a jury.
Construing a defendant's prior methamphetamine trafficking convictions as a sentencing factor also serves to avoid the risk of unfair prejudice that may be created by the jury's knowledge that the defendant has previously been convicted of a crime. The risk of unfair prejudice is the reason why the rules of evidence restrict the circumstances in which a defendant's prior conviction can be admitted. Hawai‘i Rules of Evidence (HRE) Rule 404(b) (Supp.2014) provides that: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith.” HRE Rule 609 (1993) provides that: “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is inadmissible except where the crime is one involving dishonesty.”
The risk of unfair prejudice is also why defense counsel generally fight so hard to keep evidence of a defendant's prior conviction from being revealed to the jury. Where a defendant's prior conviction is for the same crime as the one pending in a case, the risk of unfair prejudice becomes even more pronounced.
C.
[136 Hawai'i 12]
There is no dispute that the Legislature has the power to make a defendant's prior conviction an element of an offense if it chooses to do so. Crimes making a prior conviction an element of the offense, such as those prohibiting felons from possessing firearms, have been on the books for a long time.
However, given the risk of unfair prejudice, I believe that when construing statutes that impose increased punishment for repeat offenders, courts should presume that the Legislature intended to make the prior conviction a sentencing factor and not an element of the offense, absent the Legislature's clearly expressed contrary intent. In other words, unless the Legislature's intent to make the prior conviction an element of the offense is clear, a defendant's prior conviction should be viewed as a sentencing factor for the judge (and not the jury) to decide.
II.
Precedents of the Hawai‘i Supreme Court, however, have not reached this result. The supreme court has construed a defendant's prior conviction as an element of the offense, even where the language and structure of the statute indicate that the Legislature intended the prior conviction to be a sentencing enhancement factor. See State v. Domingues, 106 Hawai‘i 480, 107 P.3d 409 (2005); State v. Kekuewa, 114 Hawai‘i 411, 163 P.3d 1148 (2007) State v. Ruggiero, 114 Hawai‘i 227, 160 P.3d 703 (2007); State v. Murray, 116 Hawai‘i 3, 169 P.3d 955 (2007).
In this case, Wagner argued that his prior methamphetamine trafficking conviction was a sentencing factor, and not an element of the offense, and thus evidence of his prior conviction should not be presented to the jury. Relying on the supreme court's prior decisions in Ruggiero and Murray, the Circuit Court rejected Wagner's argument and ruled that Wagner's prior methamphetamine trafficking conviction was an element of the offense. The Circuit Court then relied on the procedures adopted by the supreme court in Murray to permit the State to present evidence of this “element” to the jury (without telling the jury of the name or specific nature of the prior conviction), which resulted in the jury being informed by stipulation that Wagner had a prior felony conviction.
III.
I will first discuss the Hawai‘i Supreme Court's precedents, including the cases specifically relied upon by the Circuit Court. I will then explain why I believe these precedents should be revisited.
A.
I begin with State v. Domingues, 106 Hawai‘i 480, 107 P.3d 409 (2005). The issue before the Hawai‘i Supreme Court in Domingues was whether a newly enacted statute prohibiting the operation of a vehicle under the influence of an intoxicant (OVUII), HRS § 291E–61 (Supp.2001), that took effect on January 1, 2002, was a substantial reenactment of the repealed HRS § 291–4.4 (Supp.2000), which had previously prohibited habitually driving under the influence of intoxicating liquor or drugs. HRS § 291–4.4 had been repealed without a savings clause, and if HRS § 291E–61 was not a substantial reenactment of HRS § 291–4.4, the charge against Domingues for habitual driving under the influence of intoxicating liquor may have been subject to dismissal. See Domingues, 106 Hawai‘i at 484–88, 107 P.3d at 413–17.
[136 Hawai'i 13]
The repealed HRS § 291–4.4 specifically included the defendant's prior convictions as an element in the definition of the offense. HRS § 291–4.4 provided, in relevant part:
(a) A person commits the offense of habitually driving under the influence of intoxicating liquor or drugs if, during a ten-year period the person has been convicted three or more times for a driving under the influence offense; and
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor, ...; [or]
(2) The person operates or assumes actual physical control of the operation of any vehicle with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood or .08 or more grams of alcohol per two hundred ten liters of breath[.]
(Emphasis added.)
On the other hand, the newly enacted HRS § 291E–61 did not include the defendant's prior convictions in the portion of the statute defining the offense, but referred to the defendant's prior convictions in the portion of the statute discussing the sentence to be imposed. HRS § 291E–61(a) defined the OVUII offense in relevant part as follows:
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty; [or]
....
(3) With .08 or more grams of alcohol per one hundred ten liters of breath[.]
HRS § 291E–61(b) then defined the sentences that shall be imposed on a person who committed the OVUII offense and provided for increased punishment for a defendant who had prior OVUII convictions:
(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows without possibility of probation or suspension of sentence:
(1) For the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section or section 291E–4 fa):
[Punishment including attendance at a substance abuse rehabilitation program; license suspension; and 72 hours of community service, between two and five days of imprisonment, or a fine between $150 and $1,000]
(2) For an offense that occurs within five years of a prior conviction for an offense under this section or section 291E–4(a):
[Increased punishment over a first offense, including possible imprisonment of between five and fourteen days]
(3) For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E–4(a):
[Increased punishment over one prior conviction, including mandatory imprisonment of between ten and thirty days]
(4) For an offense that occurs within ten years of three or more prior convictions for offenses under this section, section 707–702.5, or section 291E–4(a):
[136 Hawai'i 14]
[Increased punishment over two prior convictions]
(Emphases added.) HRS § 291E–61(b)(4) also provided that “[a]n offense under this paragraph is a class C felony.”
Despite the different language and structure of HRS § 291–4.4 and HRS § 291E–61, the supreme court held that HRS § 291E–61 substantially reenacted HRS § 291–4.4. Domingues, 106 Hawai‘i at 487–88, 107 P.3d at 416–17. The supreme court determined that HRS § 291E–61 was a “hierarchy” of separate offenses (three petty misdemeanors and one class C felony) and that qualifying prior convictions were an essential element of the offenses imposing enhanced penalties. Id. The supreme court concluded that the “prefatory language of HRS § 291E–61(b)(1) through 291E–61(b)(4),” which included language requiring qualifying prior convictions, “describes attendant circumstances that are intrinsic to and ‘enmeshed’ in the hierarchy of offenses that HRS § 291E–61 as a whole describes.” Id. at 487, 107 P.3d at 416 (citation omitted).
In support of its conclusion, the court noted that an offense under HRS § 291E–61(b)(4) (Supp.2001) was a felony, which would entitle the defendant to a jury trial, “whereas the offenses described in HRS § 29lE–61(b)(1) through (3) [ (Supp.2001) ] would appear to be petty misdemeanors, as to which no right to a jury trial would attach.” Id. at 487 n. 8, 107 P.3d at 416 n. 8. The court explained:
If the prefatory language of HRS §§ 291E–61(b)(1) through (b)(4) (Supp.2001) were mere ‘sentencing factors' that the prosecution was not obliged to allege and prove to the trier of fact, ... then defendants charged with HRS § 291E–61 [ (Supp.2001) ] offenses would have no idea what the particular offense was that they were charged with committing or whether they were entitled to a jury trial.
Id.
B.
Two years after Domingues, the Hawai‘i Supreme Court had the opportunity to address whether Domingues's analysis of HRS § 291E–61 (Supp.2001) was still valid. In State v. Kekuewa, 114 Hawai‘i 411, 163 P.3d 1148 (2007), the Hawai‘i Supreme Court rejected the State's request that the court “overrule Domingues to the extent that it characterizes the provisions set forth in HRS § 291E–61(b)(1)–(4) (Supp.2002) as attendant circumstances.” Id. at 419, 163 P.3d at 1156.2/ The supreme court acknowledged that “a fair reading of HRS § 29lE–61(b) (Supp.2002) provides the initial impression that its contents describe sentencing factors, rather than attendant circumstances, given the fact that HRS § 29lE–61(b) (Supp.2002) is prefaced with language stating that ‘a person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows[.]’ “ Id. at 420, 163 P.3d at 1157 (brackets in original). However, in support of its refusal to overturn Domingues, the court noted that Domingues “recognized that construing § 291E–61(b)(1)–(4) (Supp.2002) as extrinsic sentencing factors [,]” rather than attendant circumstances elements that the prosecution was required to allege and prove to the trier of fact, “would have raised serious concerns regarding the statute's constitutionality, given a defendant's inability to ascertain the class and grade of the offense charged (i.e., a petty misdemeanor or a class C felony) and whether the right to a jury has or has not attached.” Id. (emphasis added).
C.
[136 Hawai'i 15]
In State v. Ruggiero, 114 Hawai‘i 227, 160 P.3d 703 (2007), the Hawai‘i Supreme Court considered whether the Domingues analysis of HRS § 291E–61 retained its validity after the Hawai‘i Legislature's amendment of HRS § 291E–61 in 2003. The 2003 amendments excised from HRS § 291E–61 the class C felony for a fourth OVUII offense within ten years previously set forth in HRS § 29lE–61(b)(4) and created a separate offense of Habitual OVUII codified at HRS § 291E–61.5. See 2003 Haw. Sess. Laws Act 71, §§ 1 and 3 at 123–26. The supreme court also concluded that the 2003 amendments transformed the offenses under HRS § 291E61(b)(1) to (3) into status offenses by adding language to subsection (c) providing that prior convictions used to enhance the defendant's punishment need only be valid at the time of the commission of the current pending offense. Ruggiero, 114 Hawai‘i at 236–37, 160 P.3d at 712–13.
The supreme court declined to overrule its analysis in Domingues in light of the 2003 amendments and held:
The Dominaues analysis ... retains its vitality, inasmuch as considerations of due process continue to require that the aggravating factors set forth in HRS § 29lE–61(b)—all of which remain “attendant circumstances that are intrinsic to and ‘enmeshed’ in the hierarchy of offenses that HRS § 291E–61 as a whole describes,” Domingues, 106 Hawai‘i at 487, 107 P.3d at 416—be alleged in the charging instrument and proven beyond a reasonable doubt at trial.
Ruggiero, 114 Hawai‘i at 238, 160 P.3d at 714 (footnote omitted).
D.
In State v. Murray, 116 Hawai‘i 3, 169 P.3d 955 (2007), the supreme court extended its analysis in Domingues, Kekuewa, and Ruggeiro to the recidivist provisions of HRS § 709–906, the statute which defines the offense of abuse of family or household members. The supreme court construed HRS § 709–906 (Supp.2004), which stated in pertinent part:
(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member....
....
(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and
(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a ‘repeat offender’ and serve a minimum jail sentence of thirty days.
....
(7) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the person shall be charged with a class C felony.
(Emphasis added.)
The supreme court held that whether Murray's violation of HRS § 709–906 was “a third or subsequent offense” was an attendant circumstances element of the class C felony offense. Id. at 8, 169 P.3d 955. Citing Domingues and Ruggiero, the supreme court noted that it had previously stated that “when ‘the degree of punishment for a violation ... escalates as a function of whether the violation’ was committed within a certain number of years of a prior offense, such language ‘describes attendant circumstances that are intrinsic to and enmeshed in the hierarchy of offenses that [the statute] as a whole describes.’ “ Id. (brackets in original) (quoting Domingues, 106 Hawai‘i at 487, 107 P.3d at 416, and citing Ruggiero, 114 Hawai‘i at 238, 160 P.3d at 714). In support of its holding that a defendant's prior abuse convictions were an element of the offense, the supreme court reasoned that the prior abuse convictions distinguished the felony offense of HRS § 709–906(7) from the misdemeanor offenses set forth in HRS § 709–906(5)(a) and (b). Id. The supreme court also reasoned that the Legislature's intent to impose greater punishment on repeat offenders supported the court's treatment of a defendant's prior abuse convictions as an element of the felony offense, rather than a sentencing enhancement. Id. at 8–9, 160 P.3d 703, 169 P.3d at 960–61.
[136 Hawai'i 16]
While holding that a defendant's prior abuse convictions were an element of the felony abuse offense, the supreme court recognized the risk of unfair prejudice arising from the jury's knowledge that a defendant has a prior conviction, or in Murray's case, knowledge that he had two prior convictions for the same offense he was alleged to have committed in his pending case. Id. at 20–21, 169 P.3d at 972–73. To compensate for this risk, the supreme court adopted an extensive set of procedures. First, the court held that if a defendant decides to stipulate to the prior convictions, the trial court must accept the stipulation. Id. at 19, 169 P.3d at 971. Second, the trial court must engage the defendant in a colloquy to confirm that the defendant's stipulation is knowing and voluntary. Id. at 19–20, 169 P.3d 955, 169 P.3d 971–72. Third, even though HRS § 709–906 requires that the prior convictions be convictions for abuse of a family or household member, the defendant is allowed to stipulate to the fact of the required prior convictions, but the jury is not informed of the name or nature of the prior convictions. Id. at 21, 169 P.3d at 973. Instead, the jury shall be instructed that the defendant has stipulated to the prior conviction element of the charged offense, but “[t]he instruction must be carefully crafted to omit any reference to the ‘name or nature’ of the previous convictions.” Id. Fourth, the trial court is required to give the jury a limiting instruction to “ensure that the prior convictions are not considered by the jury for any purpose other than conclusively establishing the ‘prior conviction(s)’ element.” Id.
IV.
A.
In my view, these cases should be revisited. In Kekuewa, the supreme court acknowledged that “a fair reading of HRS § 291E–61 b)” indicated that its references to prior convictions describe sentencing factors, rather than an element of the offense. See Kekuewa, 114 Hawai‘i at 420, 163 P.3d at 1157. The same is true of the references to a defendant's prior convictions in HRS § 709–906, which was construed in Murray. Thus, in concluding that the defendant's prior convictions were an element of the offense, rather than a sentencing factor, the supreme court declined to apply one of the basic principles of statutory construction. See State v. Richie, 88 Hawai‘i 19, 30, 960 P.2d 1227, 1238 (1998) (“It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning. Instead, our sole duty is to give effect to the statute's plain and obvious meaning.” (internal quotation marks and citation omitted)); University of Hawai‘i v. Befitel, 105 Hawai‘i 485, 488, 100 P.3d 55, 58 (2004) (“When construing a statute, this court's foremost obligation is to ascertain and give effect to the intention of the legislature which is to be obtained primarily from the language contained in the statute itself.” (internal quotation marks and citation omitted)).
[136 Hawai'i 17]
The supreme court, however, justified its departure from the plain and fair reading of the statutes by citing constitutional concerns regarding notice to the defendant, and in particular, notice regarding whether the offense was a felony or misdemeanor and whether the defendant had a right to a jury trial. In my view, rather than departing from the plain meaning of the statutes, a better approach to addressing the concerns regarding notice would be to require the State to declare at the beginning of the case whether it will be seeking the enhancement for prior convictions. This would provide the defendant with notice of the potential penalties he or she is facing. It would also permit the trial court to determine: (1) whether a felony or misdemeanor is being alleged to ensure that the case is prosecuted in a court with the requisite jurisdiction;3 and (2) whether the defendant is entitled to a jury trial. If the State fails to timely declare its intent to seek the enhancement, it would be barred from seeking the enhancement at sentencing. Indeed, the State could be required to give notice of its intent to seek an enhancement in the charging instrument—the only difference from the current practice would be that the prior convictions would be proved at sentencing before a judge, and not proved to the jury at trial.
Given the exception in Apprendi for prior convictions, construing a defendant's prior convictions as a sentencing factor, rather than an element of the offense, would not violate a defendant's jury-trial right. Under the Apprendi exception, the fact of a prior conviction that is used to increase a defendant's punishment need not be submitted to the jury for its determination.
In Murray, the supreme court cited the Legislature's intent to increase punishment for recidivists as a basis for its analysis. However, in my view, this intent does not support making a defendant's prior convictions an element of the offense rather than a sentencing factor. Making a defendant's prior convictions a sentencing enhancement factor is fully consistent with the Legislature's intent to punish recidivists more harshly.
B.
In my view, construing statutes consistent with their plain reading and structure to make a defendant's prior convictions a sentencing factor, rather than an element of the offense, would eliminate the risk of unfair prejudice that may arise from the jury's learning that the defendant has one or more prior convictions. Pursuant to the exception for “the fact of a prior conviction” set forth in Apprendi, the jury need not determine, and thus need not hear evidence of, prior convictions that are sentencing factors which increase a defendant's punishment.
Treating the defendant's prior convictions as a sentencing factor, rather than an element of the offense, would also avoid the need to engage in the extensive procedures set forth in Murray to compensate for and alleviate the risk of unfair prejudice. While the Murray procedures reduce the risk of unfair prejudice, the jury still hears that the defendant has one or more prior convictions. In addition, in my view, the Murray procedures are not intuitive and cannot be gleaned from a reading of the statute; therefore, they create potential traps for the unwary.
[136 Hawai'i 18]
I also question the advisability of the some of the procedures adopted. If a defendant's prior convictions for abuse of a family or household member are indeed an element of the felony offense, I do not see how a stipulation to the fact of the required prior convictions, without the jury being informed of the name or nature of the prior convictions, is sufficient. As the trier of fact, the jury is required to determine all the essential elements of the offense beyond a reasonable doubt. I do not understand how a jury can determine that the defendant has two or more prior convictions for abuse of a family or household member if the stipulation conceals the name and nature of the prior convictions.4 In seeking to avoid the risk of unfair prejudice, the procedures adopted in Murray, in my view, result in diminishing the role of the jury in our criminal justice system.5
V.
Although I believe the supreme court should revisit its prior precedents, they establish binding authority and control the decision in this case. In State v. Bryan, 124 Hawai‘i 404, 245 P.3d 477 (2011), this court applied the supreme court's precedents in holding that a defendant's prior convictions were an offense element, rather than a sentencing factor, for prosecutions under HRS § 291E–62. Bryan, 124 Hawai‘i at 411–14, 124 Hawai‘i at 484–87. Similarly, in this case, based on the supreme court's precedents, the Circuit Court did not err in treating Wagner's prior methamphetamine trafficking conviction as an element of the offense and in permitting the jury to be informed by stipulation that Wagner had a prior felony conviction.