82 Hawai'i 517, State v. Sanchez
| Decision Date | 05 August 1996 |
| Docket Number | No. 17724,17724 |
| Citation | 923 P.2d 934,82 Hawaii 517 |
| Parties | 82 Hawai'i 517 STATE of Hawai'i, Plaintiff-Appellee, v. Samuel B. SANCHEZ, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Defendant was convicted of (1) being a felon in possession of a firearm in violation of Hawai'i Revised Statutes (HRS) § 134-7(b) (1993); (2) being a felon in possession of firearm ammunition in violation of HRS § 134-7(b); and (3) terroristic threatening in the first degree in violation of HRS § 707-716(1)(d) (1993).
2. In the absence of evidence showing its unavailability, the State was required to submit the judgment of conviction itself or a properly authenticated copy thereof into evidence to establish the material element of Defendant's prior felony conviction. It was plain error to allow the probation officer's testimony to establish Defendant's prior felony conviction where the State had not shown the unavailability of Defendant's prior conviction judgment.
3. The double jeopardy clause in article I, section 10 of the Hawai'i Constitution "precludes retrial of a defendant whose conviction has been set aside because of insufficient evidence, [and] sufficiency of the evidence is reviewed based only on the evidence that was properly admitted at trial." State v. Wallace, 80 Hawai'i 382, 414 n. 30, 910 P.2d 695, 727 n. 30 (1996) (emphasis omitted).
4. We are precluded from remanding the case for retrial because there are no lesser included offenses of HRS § 134-7(b) under HRS chapter 134. Accordingly, we reverse Defendant's convictions on the counts of being a felon in possession of a firearm and a felon in possession of firearm ammunition under HRS § 134-7(b).
5. Evidence that Defendant violated his furlough was not a fact of consequence to any material issue. Defendant's furlough violation was not connected to a plan to return home for the purpose of confronting the person he was charged with terrorizing, and thus was never linked to the terroristic threatening charge. Hence, the prosecutor improperly referred to Defendant's custody status and furlough violation.
6. The purpose of an opening statement is to explain the case to the jury and outline the proof. It is not an occasion for argument. While the scope and extent of the opening statement is ordinarily left to the sound discretion of the trial judge, the court should exclude irrelevant facts and stop argument if it occurs.
7. The prosecutor's assertions of personal knowledge violated Disciplinary Rule (DR) 7-106(C)(3) of the Code of Professional Responsibility, which prohibits a lawyer from asserting personal knowledge of facts in issue except when the lawyer is testifying as a witness. The rule is intended to protect against the unfair influence that a prosecutor's assertion may have on the fact finder.
8. Compound questions contain two or more questions, and therefore, may cause jury confusion when only one answer is given. A question is argumentative if its purpose is to argue with the witness or to persuade the trier of fact to accept the examiner's inferences, rather than to seek relevant fact.
9. Guidelines for prosecutorial argument are succinctly presented in the ABA Standards for Criminal Justice:
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.
(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds.
10. The cumulative effect of the prosecutor's misconduct was to deny Defendant a fair trial. We cannot conclude beyond a reasonable doubt that the prosecutor's conduct would not have affected the jury's verdict.
Theodore Y. H. Chinn (Debra K. Loy with him, on the brief), Deputy Public Defenders, Honolulu, for defendant-appellant.
Mark R. Simonds, Deputy Prosecuting Attorney, County of Maui, Wailuku, for plaintiff-appellee.
Before BURNS, C.J., and WATANABE and ACOBA, JJ.
On December 16, 1993, Defendant-Appellant Samuel B. Sanchez (Defendant) was convicted of (1) being a felon in possession of a firearm in violation of Hawai'i Revised Statutes (HRS) § 134-7(b) (1993); (2) being a felon in possession of firearm ammunition in violation of HRS § 134-7(b); and (3) terroristic threatening in the first degree in violation of HRS § 707-716(1)(d) (1993). Pursuant to HRS § 706-662(4) (1993), Defendant was sentenced to extended terms of twenty years each on the first and second convictions, and ten years on the third conviction, with all terms to run concurrently. Because the instant offenses were felonies committed within five years after a prior class C felony conviction, Defendant was also sentenced to a mandatory minimum term of imprisonment of three years and four months without the possibility of parole pursuant to HRS § 706-606.5(1)(a)(iii) (1993) as a "repeat offender."
On appeal, Defendant raises the following points of error: (1) the trial court erred in admitting testimony that Defendant was in custody at the time of the offense; (2) Defendant was denied a fair trial because of the prosecutor's misconduct; and (3) the trial court abused its discretion in sentencing Defendant to extended terms of imprisonment. Defendant does not challenge the sufficiency of the evidence for his convictions or his "repeat offender" sentence.
We (1) reverse the two convictions under HRS § 134-7(b) premised on Defendant's prior felony status, (2) vacate the extended term sentences, (3) vacate the conviction for terroristic threatening in the first degree under HRS § 707-716(1)(d), (4) vacate the repeat offender sentence under HRS § 706-606.5(1)(a)(iii) for the terroristic threatening conviction, and (5) remand the case for a new trial on the terroristic threatening charge.
I.
On May 10, 1993, Defendant was in Kihei, Maui on a work furlough from the Maui Community Correctional Center (MCCC), where he was serving a probationary sentence for a felony conviction. 1 On that date, Defendant was accused of threatening his daughter Venus Sanchez's (Venus) boyfriend, Ray Ubias (Ray), with a crowbar and a knife, and of being a felon in possession of a shotgun and shotgun ammunition.
The State's first witness, Defendant's probation officer, Evelyn Mukogawa (Ms. Mukogawa), testified that she was monitoring Defendant for "a felony" conviction. Ms. Mukogawa explained an "information sheet on possession of firearms" to Defendant and notified him that "because you're a convicted felon you cannot have for the rest of your life any type of firearms or ammunition."
Michael Berghash (Mr. Berghash), the acting correctional supervisor at MCCC, confirmed that Defendant was an inmate at MCCC, and that on May 10, 1993 Defendant was given a four-hour "job search pass" to seek employment. The defense objected to this "line of questioning." The court overruled the objection, finding that the limited purpose of the pass was relevant to establish Defendant returned to his home with the intent "to cause some problems."
Ray testified that he was Venus's boyfriend and that he had been at Defendant's home on May 10, 1993. Ray further indicated that after Defendant arrived, Ray and Defendant had an argument, but Ray denied seeing Defendant holding anything in his hands. Ray left the house on foot because Defendant prohibited Ray from removing his car from the premises. After leaving the house, Ray summoned a police officer. Ray reported that he told the officer that he and Defendant had been arguing, but denied informing the officer that Defendant had threatened to kill him or had possessed any weapon. Ray testified that he "[g]ave" the shotgun shell that he found "on top by the T.V." to the police.
This version of the events apparently contradicted Ray's prior statements to the police, and the prosecutor was permitted to ask Ray leading questions. During the examination, the prosecutor asked Ray about prior statements Ray had made to the prosecutor which contradicted Ray's trial testimony. The court overruled defense counsel's objection to the initial question.
Venus related that she and Ray had discussed the need "to tell the truth" at trial, and admitted that she had lied to the police and to the grand jury in her previous accounts of the incident.
Venus acknowledged that Defendant had entered the house after she, Ray, and her sister May Sanchez (May) had arrived, but denied that Defendant had a knife or crowbar when he entered. She confirmed that Defendant did not like Ray and that an argument had ensued between Ray and Defendant. Venus denied that Defendant threatened to kill Ray.
Venus testified that she and May decided to fabricate a story which would result in Defendant's arrest "[b]ecause all of [them were] mad" at Defendant and wanted him "to be in jail." Venus and May were "scared" because Defendant had told their landlord to call the police because of "the damage in the house." The story they concocted was of Defendant having a crowbar, a knife, and a gun. As he had done with Ray, the prosecutor repeatedly asked Venus about statements Venus had made during a meeting with the prosecutor before trial.
May corroborated her sister's testimony, reiterating...
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