142 P.3d 300 (Hawai'i App. 2005), 26870, State v. Nichols

Docket Nº:26870.
Citation:142 P.3d 300, 111 Hawai'i 436
Opinion Judge:Opinion of the Court by BURNS, C.J.
Party Name:STATE of Hawai'i, Plaintiff-Appellee, v. Tracy NICHOLS, Defendant-Appellant.
Attorney:James S. Tabe, Deputy Public Defender, on the briefs, for defendant-appellant., Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, on the briefs, for plaintiff-appellee.
Case Date:December 29, 2005
Court:Court of Appeals of Hawai'i, Intermediate

Page 300

142 P.3d 300 (Hawai'i App. 2005)

111 Hawai'i 436

STATE of Hawai'i, Plaintiff-Appellee,


Tracy NICHOLS, Defendant-Appellant.

No. 26870.

Intermediate Court of Appeals of Hawai'i

December 29, 2005

Certiorari Granted Feb. 7, 2006.


Page 301

[Copyrighted Material Omitted]

Page 302

James S. Tabe, Deputy Public Defender, for defendant-appellant.

Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, for plaintiff-appellee.




[111 Hawai'i 438] Defendant-Appellant Tracy Nichols (Nichols) appeals from the September 7, 2004 Judgment of the Circuit Court of the Second Circuit 1 convicting him as charged of Terroristic Threatening in the First Degree, Hawaii Revised Statutes (HRS) § 707-716(1)(c) (1993) 2, and sentencing him to probation for five years. Some of the conditions of his probation are (a) imprisonment for thirty days, (b) payment of a $100 crime victim compensation fee, and (c) payment of a $150 probation services fee.

On appeal, Nichols contends that plain error occurred when the trial court (1) improperly instructed the jury on the charged offense and (2) failed to instruct the jury on the lesser included offense of Terroristic Threatening in the Second Degree, HRS § 707-717(1) (1993) 3 . We disagree and affirm.


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.

Nichols' first trial in the Circuit Court of the Second Circuit 4 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.

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[111 Hawai'i 439] 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' 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 [111 Hawai'i 440] 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.


A At that time I felt threatened. I thought this guy is going to hit me or something.


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[111 Hawai'i 440] 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 side-stepping. I don't want to turn around and walk away from him and give him an opportunity to strike me from behind. So I am kind of keeping my eyes on him and I am sidestepping to my vehicle, trying to get to my vehicle so I can, you know, just go.


A He is following, walking, mirroring as -- he is walking alongside as I am walking, staying right in my face. Same aggression, just fists clenched, he is still aggressive, he is speaking loudly, aggressive tone of voice.


A . . . [Y]eah, he continued calling me a punk bitch, telling me he is going to fuck me up....


A I was totally convinced I was going to get assaulted. This guy was - he was going to attempt to kick my ass.


A I continue sidestepping to my vehicle. I am not trying to provoke [Nichols] in any way, I am not saying anything, I am just going to my vehicle.

When Officer Krau reached his vehicle, Nichols stopped following Officer Krau and returned to and entered the white pickup truck. Officer Krau did not know who else was in the white truck and had the following concerns: "There could have been other people in the vehicle just waiting for an opportunity to jump out and attack me, assault me. If they had weapons in there, I had no idea what was going to happen." As Nichols departed from the Tesoro Gas Express, he continued to yell, "punk B-I-T-C-H" at Officer Krau. Officer Krau was never touched by Nichols.

Officer Krau departed in the opposite direction from his home because he did not know if Nichols was "waiting, trying to set me up, waiting for me to leave, . . . follow me to my house, or whether [Nichols] was going to jump out or, you know, harm me or my family." Officer Krau then placed a call to his residence, spoke to his father, informed his father of his encounter and prior dealings with Nichols. Officer Krau also advised his father to watch out for a white pickup truck. Officer Krau then called a few co-workers, including his brother, to notify them of what had occurred between Nichols and himself in order to establish Nichols as the prime suspect should "something happen" to Officer Krau or his family members. Officer Krau acknowledged that he should have notified central dispatch immediately to report the incident per proper police procedure, but, in fact, did not do so until returning to work three days later on September 19, 2003.

Nichols did not testify.

On July 7, 2004, during the in-chambers settlement of jury instructions, the following discussion regarding the offense of Terroristic Threatening in the Second degree took place, in relevant part:

[PROSECUTOR]: Perhaps we could put something on the record, Your Honor, regarding the Court's finding [sic] that there is no lesser included...

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