State v. Kupau

• Decision Date: 04 February 1994
• Docket Number: No. 15885,15885
• Citation: 10 Haw.App. 503,879 P.2d 559
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Walter KUPAU, Jr., Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 559

879 P.2d 559

10 Haw.App. 503

STATE of Hawai'i, Plaintiff-Appellee, v. Walter KUPAU, Jr., Defendant-Appellant.

No. 15885.

Intermediate Court of Appeals of Hawai'i.

Feb. 4, 1994.

Certiorari Granted Feb. 22, 1994.

Syllabus by the Court

1. A trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. Hawai'i Revised Statutes § 701-109(5).

2. Where a defendant neither requested a lesser included offense (LIO) instruction nor objected to the trial court's instructions as read, the trial court's failure to give the LIO instruction will not be considered on appeal unless it is shown that the substantial rights of the defendant have been affected.

3. A trial court commits plain error when it fails, sua sponte, to give an LIO instruction reasonably warranted by the evidence.

4. A trial court has the duty, sua sponte, to give an appropriate LIO instruction, reasonably based on the evidence.

5. The trial court functions both as a neutral arbiter between two contesting parties and as the jury's guide to the law. This 6. A trial court has an obligation to give instructions on LIOs when the evidence raises a question as to whether all of the elements of the charged offense are present. The fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts--not limited by the strategy, ignorance, or mistake of the parties. Furthermore, it avoids an unwarranted all-or-nothing choice for the jury and ensures that the verdict is no harsher or more lenient than the evidence merits.

role requires that the court fully instruct the jury on the law applicable to each particular case.

7. The trial court has an independent duty to reasonably assist and instruct the jury in the intelligent discharge of its constitutional functions so as to avoid a miscarriage of justice. The reliability of the truth-determining process is so essential to society's interest in maintaining the integrity of judicial proceedings that the duty of a criminal trial court to submit constitutionally appropriate LIO instructions to the jury must take precedence over the decision of the accused, as a matter of trial tactics and strategy, to waive the right to such instructions.

Alvin T. Sasaki, on the briefs, Honolulu, for defendant-appellant.

Patricia A. Loo, Deputy Prosecuting Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before WATANABE, J., CRANDALL, Circuit Judge, in place of BURNS, C.J., Recused, and SHIMABUKURO, Circuit Judge, in place of HEEN, J., Recused.

WATANABE, Judge.

In this appeal, Defendant-Appellant Walter Kupau, Jr. (Defendant) contends that his jury conviction of Assault in the Second Degree should be reversed for two reasons: first, the trial court committed plain error when it failed, sua sponte, to instruct the jury on the lesser included offense (LIO) of Assault in the Third Degree; and second, the conduct of Defendant's trial counsel deprived Defendant of his constitutional right to effective assistance of counsel.

We agree that the trial court plainly erred when it failed sua sponte to give the LIO instruction. We accordingly vacate the judgment below and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

As a result of a September 6, 1988 incident in which James Rockwell (Rockwell), a water plant operator at the Public Works Center, Pearl Harbor Naval Base, was allegedly beaten by Defendant, a grand jury indicted Defendant for having committed the offense of Assault in the Second Degree, a violation of Hawai'i Revised Statutes (HRS) § 707-711(1)(a) (Supp.1992).

The evidence at trial revealed that when Rockwell reported to work on September 6, 1988, he filed "some grievances" with his acting supervisor, David Sax (Sax), concerning "criminal activities that were going on as well as fraud ... [o]n the part of management of the water plant." Transcript (Tr.) 10/21/91 at 8-9. Rockwell also filed a separate grievance, in which he complained about the job performance evaluation he had received from Sax, as well as on-the-job harassment by Sax. Id. at 9.

That evening at about 9:00 p.m., Rockwell telephoned Robert Meyer (Meyer), his immediate supervisor, to inform Meyer of the grievances he had filed. Rockwell claims that he was invited to Meyer's home in Nu'uanu to discuss the matter and arrived there at around 10:00 p.m.

Once inside Meyer's home, Rockwell began to explain why he had filed the grievances. However, instead of discussing the grievances, Meyer turned the subject to Rockwell's previous allegations regarding criminal wrongdoing, which were already being investigated by the Naval Investigation Service (NIS). Meyer warned Rockwell that he was in "deep trouble" if he had revealed certain information to the NIS authorities. Id. at 16.

Meyer then suggested that the two of them go outside to talk about the matter further. According to Rockwell [A]s soon as [Meyer] opened the door to the porch I was grabbed by [Defendant] under my--[Defendant] was on my right side of the porch and another gentleman on the left too, grabbed both me under my armpits.

They drug [sic] me down this hill of the concrete porch down the sidewalk basically through the little picket gate which ripped open my jeans, threw me down on the McGrew Lane where it's paved and [Defendant] started pounding my head into the pavement and beating the side of my head and my ribs.

* * * * * *

He was beating my head on the pavement. He said, "I hear you are giving trouble at work and you are messing with the wrong people." These are the only statements that were made really.

Id. at 16-17.

Rockwell testified that the actual assault lasted "at the most five minutes," and that as soon as the beating ceased, he went straight to his car and drove away. Id. at 21-22. He was "pretty disoriented" and "shook up" because he was bleeding from his head and blood was flowing down his face. Id. at 22. He headed for his home in Waipahu but decided instead to go to the home of David Cain (Cain), a co-worker who lived near him. Rockwell told Cain what had happened to him ¹ and asked Cain to drive him to the hospital. However, because Cain was babysitting his children and could not leave them alone, he was unable to drive Rockwell. Cain offered to summon an ambulance, but Rockwell declined the offer.

Rockwell eventually found a ride to Kaiser Hospital in Moanalua, where he arrived at approximately 1:00 the next morning. While there, he was interviewed by a police officer who had been summoned by hospital staff, and was then treated and released.

At trial, the medical records of Kaiser Hospital relating to the injuries sustained by Rockwell were introduced into evidence by stipulation of the parties. The records clearly indicate that Rockwell suffered from: (1) a one-inch laceration to the left side of his head, for which he received three stitches; (2) two hematomas (i.e., bruise or blood clot) to his head; and (3) a sprained left wrist. Record on Appeal (R.A.) at 153.

The medical records also contain several entries by various physicians, suggesting that Rockwell may have sustained a fracture to his left third or ninth rib as a result of the alleged beating. Dr. Peter Clapp, a radiologist, took an x-ray of Rockwell on September 7, 1988, and thereafter noted that "[t]here is a mild cortical [i.e., outer layer] irregularity involving the anterior end of the left 9th rib which may possibly represent a nondisplaced fracture." R.A. at 154. Dr. D. Intaraprasong, another radiologist, took a second x-ray on September 21, 1988, and concluded that "[t]here is no definite fracture identified at the left 9th rib," but there is a "[p]ossible fracture, either new or old at lateral aspect of left 3rd rib." R.A. at 162.

At trial, Defendant did not contest the nature of Rockwell's injuries, but offered evidence that the injuries were inflicted in self-defense.

Meyer testified that when Rockwell arrived at Meyer's house on the evening in question, Rockwell began accusing Meyer of being the "ring leader" of a group that was supposedly stealing government property. Tr. 10/22/91 at 37. Meyer claims that Rockwell then "went over the handle, he just blew up" and started yelling that he would "get [Meyer]" and "get everybody." Id. at 38. Defendant, who was Meyer's neighbor, overheard Rockwell screaming at Meyer and telephoned Meyer to offer to call the police. When Meyer declined assistance and said he would handle the matter, Defendant informed Meyer that Defendant would be on his porch if Meyer changed his mind. Meyer subsequently led Rockwell out to Meyer's porch, a scuffle ensued between them, and Meyer called for Defendant's help.

Both Meyer and Defendant testified that Rockwell was holding a beer bottle, and I thought he was going to hit him so I hit him.

                when Defendant ran over to Meyer's house, "Rockwell raised his hand with the beer bottle."  Id. at 39, 96.   According to Defendant
                

* * * * * *

When Rockwell--well, I went go for hit because I thought he's going to sling that beer bottle at me. I was going to hit him but how I hit him I crack him like this. I hit here over there. He went on the fence and I went on the fence and fell on the fence and got on the--I got up slowly. I told him he better leave and [Meyer] told him the same thing.

Id. at 96. Defendant admits that he "hit [Rockwell] one time and that was it." Id. at 111.

Following the closing arguments of counsel, the trial court instructed the jurors on the law regarding Assault in the Second Degree, then turned the case over to them for deliberations. No instruction was requested by either party regarding the LIO of Assault in the Third Degree, and the trial court did not, sua sponte, instruct the jury on such LIO.

The jury subsequently...