420 P.3d 321 (Hawai‘i 2018), SCWC-13-0002043, State v. Souza

Docket Nº:SCWC-13-0002043
Citation:420 P.3d 321, 142 Hawai‘i 390
Opinion Judge:POLLACK, J.
Party Name:STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Tracy SOUZA, Petitioner/Defendant-Appellant.
Attorney:William H. Jameson, Jr. for petitioner
Judge Panel:McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS CONCURRING AND DISSENTING OPINION BY NAKAYAMA, J. IN WHICH RECKTENWALD, C.J., JOINS
Case Date:May 30, 2018
Court:Supreme Court of Hawai'i
 
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Page 321

420 P.3d 321 (Hawai‘i 2018)

142 Hawai‘i 390

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

v.

Tracy SOUZA, Petitioner/Defendant-Appellant.

No. SCWC-13-0002043

Supreme Court of Hawai‘i

May 30, 2018

Page 322

[Copyrighted Material Omitted]

Page 323

[Copyrighted Material Omitted]

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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0002043; CRIMINAL NO. 12-1-1028)

William H. Jameson, Jr. for petitioner

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION

POLLACK, J.

In State v. Murray, 116 Hawai‘i 3, 169 P.3d 955 (2007), this court held that if a defendant offers to stipulate to the prior conviction element of a charged offense, the trial court must accept the stipulation. This appeal arises from a challenge by Tracy Souza asserting that the circuit court refused to accept his offer to stipulate to his prior felony conviction, which constituted an element of an offense with which he was charged. We hold that the manner in which the circuit court addressed Souza’s offer to stipulate to the prior conviction element was inconsistent with our decision in Murray . Because this error was not harmless beyond a reasonable doubt, we vacate the judgment and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

On July 16, 2012, Souza was charged by felony information in the Circuit Court of the First Circuit (circuit court) with place to keep unloaded firearms other than pistols and revolvers, in violation of Hawaii Revised Statutes (HRS) § 134-24 (hereinafter "place to keep firearm"),1 and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) (hereinafter "prohibited possession of firearm").[2] Souza pleaded not guilty to the charges, and a jury trial was held.3

A. Proposed Stipulation

Prior to jury selection, the circuit court discussed with both parties the subject of a possible stipulation as to Souza’s previous conviction of a felony offense. The court noted that both the State and Souza drafted proposed stipulations but that an agreement had not been reached as to which version would be used at trial. The court stated the following: After reviewing both of the stipulations, it’s my view, that, absent a specific agreement by both of you, then the State would be perfectly within its right to call whatever witnesses they felt are necessary and

Page 325 relevant— obviously it would be— have to be approved and permitted by the Court— to establish that element of a prior conviction.

And, so, with that, [defense counsel], has Mr. Souza arrived at any decisions as to whether or not he’ll accept the State’s version of the stipulation?

Defense counsel responded, "Yes," and indicated that he wished to make a record. Counsel stated that while the defense was seeking to exclude the naming of Souza’s prior convictions, the State’s stipulation included facts that were not elements of the offense of prohibited possession of firearm and therefore they were not relevant.[4] As an example, defense counsel cited paragraph 3 of the State’s proposed stipulation-regarding Souza not having been pardoned of the prior conviction— as already covered by Souza’s stipulation that he has a prior conviction. Counsel also pointed to paragraph 4 of the State’s proposed stipulation— that Souza was prohibited from owning or possessing firearms as a result of his prior conviction— as being a statement of law and not an element of the offense. Additionally, defense counsel referenced paragraph 5 of the State’s proposed stipulation— that Souza knew he was prohibited from owning or possessing any firearms— as also not being an element of the prohibited possession of firearm offense. Souza requested that, even if the defense did not agree to the State’s proposed stipulation, the State be precluded from presenting evidence as to these matters. Defense counsel continued as follows: My understanding is the State is proffering or would put up ... Mr. Souza’s former probation officer, to testify to the effect that Mr. Souza was instructed or informed or advised that he was prohibited from possessing. And, so, that not being relevant under 403— well, 401, 403, we’d ask that we not have to agree to that as well as the State not— as well as the State be precluded from presenting that evidence.

Although the State acknowledged that pursuant to State v. Murray the defense had the right to stipulate to the name and nature of the offense, the State asserted that it still needed to prove that it was a Hawai‘i court that had issued the prior judgment. The State indicated that it intended to provide such proof by entering a certified, sealed judgment of the conviction subject to redaction. Defense counsel disagreed with the State that it was required to prove the jurisdiction of the court that rendered the prior judgment.5

The State also contended that it needed to prove that Souza knew he was prohibited from owning or possessing firearms. Thus, the State would not agree to Souza’s proposed stipulation because it did not want to be precluded from offering evidence as to what the State believed were elements of the offense that the State was required to prove to obtain a conviction. The court then inquired of the State whether it believed that, absent the stipulation, it would be entitled under caselaw to introduce the matters contained in its stipulation, or alternately, whether it intended to present evidence of such matters even with the stipulation. The State responded that it did not want the situation to be cast in a light where Souza was forced to accept its proposed stipulation and if that was the case it would withdraw its proposed stipulation. The State again acknowledged that Souza had the right under

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Murray to stipulate to preclude the name and nature of the prior conviction. At the same time, the State contended that, absent a broader stipulation, it would need to introduce evidence of Souza’s state of mind with respect to the firearm prohibition. The State continued, So ... I would intend to call the probation officer, not to discuss the name and nature of the prior offenses but just to establish that he did go over the terms and conditions of that probation and they did include the fact that he was prohibited from owning or possessing the firearm.

Defense counsel disagreed that the State was required to prove that "Souza knew he was prohibited or even reckless about being prohibited from possessing" a firearm. Souza maintained that this state of mind is not an element of the offense of prohibited possession of firearm. And because knowledge or recklessness as to the statute’s prohibition was not relevant to proof of the offense, defense counsel contended that the State should be precluded from calling the probation officer for such testimony.

The court stated that it seemed the language in the felony information did involve Souza’s state of mind. Defense counsel responded that Souza’s stipulation included his state of mind as to having been convicted but not that Souza knew he was prohibited from owning or possessing a firearm. The court responded as follows: THE COURT: Basically this is the situation, and if Mr. Souza, after discussing with you the pros and cons of the stipulation and the pros and cons of deciding not to agree to enter into the stipulation as proposed by the State— and it’s his choice— if he decides that he— the stipulation as proposed is unacceptable to him, the Court is certainly not going to do anything to try to persuade him or convince him that, you know, he should do that. That’s entirely up to him. And so— but if, however, he chooses, after thinking about it and talking to you about it, making a decision, and upon voir dire by the Court that that’s what he wants to do, then the stipulation will stand as it is. So I’ll give you some time to talk to him. But certainly prior to opening statement we’ll reach a resolution on the stipulation.

Defense counsel asked the court whether it was ruling that "Souza’s state of mind with regard to ... [paragraphs] 4 and 5 ... that he knew he was prohibited from owning or possessing firearms or ammunition, that the Court is of the belief ... that that is relevant." The court responded, "Yes."

Following jury selection, the court asked the parties whether an agreement had been reached regarding the proposed stipulations. Defense counsel stated that "because of the court’s rulings," Souza was going to stipulate to the five enumerated paragraphs that the State proposed although he originally had no desire to do so.

The court then conducted a colloquy, and Souza acknowledged that he agreed...

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