141 P.3d 974 (Hawai'i 2006), 26870, State v. Nichols

Docket Nº:26870.
Citation:141 P.3d 974, 111 Hawai'i 327
Opinion Judge:Opinion of the Court by DUFFY, J.
Party Name:STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Tracy NICHOLS, Petitioner/Defendant-Appellant.
Attorney:Deborah L. Kim, Deputy Public Defender, on the application and supplemental briefs, for petitioner/defendant-appellant Tracy Nichols., Peter A. Hanano, Deputy Prosecuting Attorney, on the application and supplemental briefs, for respondent/plaintiff-appellee State of Hawai`i., Girard D. Lau, Hono...
Case Date:July 12, 2006
Court:Supreme Court of Hawai'i

Page 974

141 P.3d 974 (Hawai'i 2006)

111 Hawai'i 327

STATE of Hawai'i, Respondent/Plaintiff-Appellee,


Tracy NICHOLS, Petitioner/Defendant-Appellant.

No. 26870.

Supreme Court of Hawai'i

July 12, 2006

Order Denying Reconsideration and Opinion Dissenting from Denial of Reconsideration Aug. 25, 2006.

Page 975

Deborah L. Kim, Deputy Public Defender, on the application and supplemental briefs, for petitioner/defendant-appellant Tracy Nichols.

Peter A. Hanano, Deputy Prosecuting Attorney, on the application and supplemental briefs, for respondent/plaintiff-appellee State of Hawai'i.

Girard D. Lau, Honolulu, and Kimberly Tsumoto, for plaintiff-appellee State of Hawai'i, on the motion.

LEVINSON, ACOBA, and DUFFY, JJ.; with NAKAYAMA, J., concurring separately and dissenting, with whom MOON, C.J., joins.



[111 Hawai'i 328] On January 30, 2006, petitioner/defendant-appellant Tracy Nichols filed an application for a writ of certiorari, requesting that this court review the published decision of the Intermediate Court of Appeals (ICA) in State v. Nichols, No. 26870,111 Hawai'i 436, 142 P.3d 300, 2005 WL 3560602 (Haw.App. December 29, 2005) [hereinafter, ICA's Opinion], affirming the September 7, 2004 judgment of conviction and sentence of five years' probation of the Circuit Court of the Second Circuit 1 against Nichols for Terroristic [111 Hawai'i 329]

Page 976

Threatening in the First Degree in violation of Hawai'i Revised Statutes (HRS) § 707-716(1)(c) (1993). 2

In his application, Nichols asserts that the ICA gravely erred by: (1) concluding, based on a misinterpretation of State v. Kuhia, 105 Hawai'i 261, 96 P.3d 590 (App.2004), and the record below, that conviction of terroristic threatening in the first degree does not require a nexus between the alleged threat and the complainant's official status or duties as a public servant; (2) refusing to exercise its "remedial discretion" to reverse the conviction where the ICA concluded that failure to instruct the jury to consider the "relevant attributes" of the parties in determining whether the defendant's remarks constituted a "true threat," as required under State v. Valdivia, 95 Hawai'i 465, 24 P.3d 661 (2001), was plain error that affected Nichols' substantial rights; (3) improperly diminishing the trial court's responsibilities to be limited to, in the absence of any objection, avoiding "only plain error rather than all non-harmless error"; and (4) concluding that the trial court's failure to instruct the jury on the included offense of Terroristic Threatening in the Second Degree, HRS § 707-717 (1993), 3 was not reversible error based on a misapplication of State v. Haanio, 94 Hawai'i 405, 16 P.3d 246 (2001), and a misreading of the record below where the instructions on the charged offense were incomplete and deficient.

We granted certiorari primarily to address Nichols' contention that the ICA misstated the standard of review for erroneous jury instructions in this jurisdiction. We agree with Nichols that the standard of review as set forth by the ICA misstates this jurisdiction's controlling precedents, and we reject it. We hold that an appellate court will reverse for plain error in jury instructions where the error cannot be said to be harmless beyond a reasonable doubt (i.e., considering the record as a whole, there is a reasonable possibility that the error contributed to the defendant's conviction). Applying that standard to the instant case, we hold that the circuit court's failure to instruct the jury that "it could consider relevant attributes of both the defendant and the subject of the allegedly threatening utterance in determining whether the subject's fear of bodily injury, as allegedly induced by the defendant's threatening utterance, was objectively reasonable under the circumstances in which the threat was uttered," Valdivia, 95 Hawai'i at 479, 24 P.3d at 675, was not harmless beyond a reasonable doubt because there is a reasonable possibility that the error contributed to Nichols' conviction. Accordingly, we reverse the ICA's Opinion, vacate the September 7, 2004 judgment of conviction, and remand this matter to the circuit court for a new trial.


The facts of the instant case were recited by the ICA as follows:

On September 26, 2003, in the County of Maui, State of Hawai'i, Nichols was indicted by a Maui Grand Jury charging him as follows:

That on or about the 16th day of September, 2003, in the County of Maui, State of Hawaii, TRACY NICHOLS, with intent to terrorize, or in reckless disregard of the risk of terrorizing Nicholas Krau, a public servant, did threaten, by word or conduct, to cause bodily injury to Nicholas Krau, thereby committing the offense of Terroristic Threatening in the First Degree in violation of Section 707-716(1)(c) of the Hawaii Revised Statutes.

Page 977

[111 Hawai'i 330] Nichols' first trial in the Circuit Court of the Second Circuit commenced on March 29, 2004 and ended in a mistrial on March 31, 2004 because the jury was unable to reach a unanimous verdict. The second jury trial commenced on July 6, 2004.

At the second trial, evidence was presented that, on September 1, 2003, at approximately 12:00 p.m., Officer Nicholas Krau (Officer Krau) of the County of Maui Police Department and a team of other police officers conducted a felony investigation of Patricia Baker (Baker) in the Kihei area of the County of Maui. Baker had rented a vehicle from a car company, the rental period had expired, and the police were looking for the vehicle. Officer Krau knew that Nichols and Baker previously had been in a relationship together and were the parents of a child in the custody of Nichols. Acting upon this information, Officer Krau, in police uniform, and the other members of the police team went to Nichols' residence to ask if Nichols knew of Baker's whereabouts. They were unable to procure any information from Nichols.

Departing from Nichols' residence, Officer Krau saw and recognized, by its looks and license plate number, the overdue rental vehicle. It was being driven by a female named Summer Plunk (Plunk). Officer Krau was familiar with Plunk from his prior dealings with her. Officer Krau then conducted a traffic stop approximately 150-200 yards from Nichols' [mother's] residence to determine if someone was concealed in the overdue rental vehicle and to ask Plunk if she knew of Baker's whereabouts.

While Officer Krau was speaking to Plunk, who was being cooperative, Nichols arrived at the location of the traffic stop. According to Officer Krau's testimony, Nichols was upset and began interfering with the police investigation by instructing Plunk not to give any information to the police. In response, Officer Krau advised Nichols that they were conducting an investigation and instructed Nichols to "step back" and "stay away." Despite these commands, Nichols continued to approach Plunk's location and to instruct Plunk not to provide any further information to Officer Krau. As a result of Nichols' noncompliance and persistent interference, Officer Krau handcuffed Nichols and detained Nichols in the back seat of Officer Krau's patrol vehicle.

While Nichols was in the back of the patrol vehicle, it appeared to Officer Krau that Nichols was having a seizure. Officer Krau immediately called for the paramedics. They arrived within five to ten minutes, treated Nichols, and released him back to the police just as the police were completing their investigation. The police cited Plunk for driving without a license and released both Nichols and Plunk at the scene. The police called the car rental company to send a representative to take possession of the rental car and its keys.

Approximately two weeks later, on September 16, 2003, at about 10:40 p.m., Officer Krau went to the Tesoro Gas Express in Kihei to purchase beer and chewing gum. At the time, Officer Krau was off-duty and not in uniform. While exiting the store, Officer Krau noticed a white pickup truck parked by the entrance of the store and observed Nichols walking towards him at a fast pace. With questions omitted, the following is Officer Krau's testimony as to the events and verbal exchanges with Nichols that immediately ensued:

A And he tells me where is your ID, I want to see your ID for that beer.

A I was kind of in shock because this gentleman was talking to me. So I was like, so. So I told him I am 21, I showed my ID to the cashier in the store, just on my way home to have a few beers.

A He then kept coming at me, he got into my face, real close to me, and he is like, yeah, you punk bitch, what you going to do.

A He is in my face, he is like within a foot from me, his fists are clenched, just slightly raised above his hips, he has got his chest sticking out and he is right on [sic] my face, yeah, punk bitch, what are you going to do. He was very angry, angry upset. His voice was raised.

Page 978

[111 Hawai'i 331] A At that time I felt threatened. I thought this guy is going to hit me or something.

A So then I told him, you know, I'm off duty, it's my day off, just trying to enjoy my day off, I just want to go home and relax, I don't want to deal with you.

A He then tells me, hey, you punk bitch, you're not shit without your gun and your badge and all your boys. He goes, I am going to kick your ass.

A I thought he was going to kick my ass. I thought, well, he was going to assault me.

A So then I have all this ... beer in my hand and my cell phone, my gum, my wallet, so I am trying to get to my vehicle. I just wanted to leave. I wanted to get out of the area. I didn't want to deal with him. I didn't want to--it was my day off. I was just trying to enjoy my day off.

A So I am...

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