88 Hawai'i 325, State v. Sawyer

• Decision Date: 15 October 1998
• Docket Number: No. 20697,20697
• Citation: 88 Hawaii 325,966 P.2d 637
• Parties: 88 Hawai'i 325 STATE of Hawai'i, Plaintiff-Appellee, v. Loretta T. SAWYER, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 637

966 P.2d 637

88 Hawai'i 325

STATE of Hawai'i, Plaintiff-Appellee, v. Loretta T. SAWYER, Defendant-Appellant.

No. 20697.

Supreme Court of Hawai'i.

Oct. 15, 1998.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Attorney, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

RAMIL, Justice.

Defendant-appellant Loretta T. Sawyer appeals from her conviction of attempted murder in the second degree in violation of Hawai'i Revised Statutes (HRS) §§ 705-500 and 707-701.5 (1993). ¹ Defendant raises five points of error on appeal, the dispositive issue being whether the trial court erred in failing, sua sponte, to give a mitigating defense instruction on attempted manslaughter resulting from extreme mental and emotional disturbance (EMED manslaughter). Because the record is devoid of any evidence supporting an EMED manslaughter instruction and because we overrule State v. Warner, 58 Haw. 492, 573 P.2d 959 (1977), insofar as it automatically required an EMED manslaughter instruction when a defendant asserted self-defense, we hold that the trial court did not err in this regard.

I. BACKGROUND

A jury trial was held on March 5, 1997. The prosecution presented the following evidence. On September 4, 1995, at approximately 11:20 p.m., police were dispatched to investigate a disturbance at Kapiolani Park. When they arrived, they found Angela Hammond (Hammond) bleeding profusely from multiple wounds to her face, neck, and head. The injuries appeared to have been inflicted with a broken vodka bottle. Subsequent medical treatment revealed that Hammond's blood alcohol level was .31.

Hammond testified that, at the time of the attack, she was an alcoholic living in Kapiolani Park. She, her family, and some of her friends, including Defendant, usually drank alcohol together in the park. On the date of the incident, she and Defendant had been drinking all day long. Late in the afternoon, the two women and another friend went to a nearby ABC store, purchased a fifth of vodka, and returned to the park.

At some point during the evening, Hammond accused Defendant of stealing Hammond's mother's food stamps. According to Hammond, Defendant picked up the vodka bottle and hit her. The pair began to fight and Hammond remembered "throwing blows," being struck by Defendant, and getting cut.

During his direct examination of Hammond, the deputy prosecuting attorney (DPA) began to show Hammond fourteen color photographs, previously entered into evidence, of her injuries, and had her explain them. Both Hammond and Defendant began to cry. Defense counsel objected on the bases that: (1) the examination was intended to bring Hammond to tears and to elicit the jury's sympathy; and (2) the second presentation was cumulative. The prosecution argued that: (1) the examination was for Hammond's "well-being," claiming that it was "part of the healing process[;]" (2) the photographs were necessary to show the extent and gravity of the injuries, inasmuch as Hammond had healed and had plastic surgery between the day she was injured and the trial; and (3) the photographs also were relevant to show that Defendant's intent was to cause Hammond's death and not to inflict the injuries in self-defense. The trial court ruled that the photographs were not cumulative and were necessary to show the extent of Hammond's injuries. Additionally, the trial court instructed the jury not to be swayed by sympathy, passion, or prejudice.

Other witnesses testified that they saw both women throwing blows. While no one knew who had thrown the first punch, one witness stated that, immediately following the incident, Defendant told him that she had not meant to hurt Hammond.

Defendant testified as follows. On the night in question, she and Hammond were very intoxicated. When Defendant began to drink the bottle of vodka, Hammond became enraged and hit Defendant in the face with a closed fist. Defendant put the bottle down and the women began to punch each other. At some point during the fight, the vodka bottle broke. Defendant picked it up and pushed Hammond away, unaware that she was cutting Hammond. Defendant did not testify, directly or indirectly, that she was acting under any mental or emotional disturbance, nor did her attorney ask her, directly or indirectly, if she were acting under any mental or emotional disturbance.

During the settling of jury instructions, defense counsel objected to the prosecution's proposed instruction no. 1 on the offense of attempted murder in the second degree, arguing that the instruction failed both to state the correct law and to define deadly force. See infra note 5 and part III.B. The prosecution also submitted an attempted "EMED manslaughter" instruction but later withdrew it without defense objection. ² Additionally, the prosecution submitted proposed supplemental instruction no. 1 on self-induced intoxication without objection by Defendant's attorney. Id. The trial court ultimately instructed the jury on self-defense but not attempted "EMED manslaughter."

During closing arguments, the DPA told the jury not to "let the law try to cloud you out with all of these instructions when you look at it. You just come down to common sense." The defense objected, and the court instructed the jury that the law had to be followed.

The jury found Defendant guilty as charged. She was sentenced to life imprisonment with the possibility of parole. Thereafter, Defendant filed this timely appeal.

On appeal, Defendant claims: (1) that the trial court committed plain error when it failed, sua sponte, to instruct the jury on attempted EMED manslaughter; ³ (2) that the trial court committed plain error when it instructed the jury on the elements of attempted second degree murder; (3) that the trial court committed plain error when it instructed the jury on self-induced intoxication; ⁴ (4) that the trial court erred when it failed to instruct the jury on the complete definition of "deadly force;" ⁵ and (5) that the prosecutor's closing arguments ⁶ and "improper" display of photographs ⁷ deprived her of her right to due process and a fair trial under the state and federal constitutions. Because points three, four, and five are without merit, we confine our discussion to points one and two.

II. STANDARDS OF REVIEW

A. Standard of Review for Jury Instructions

"When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading." Arceo, 84 Hawai'i at 11, 928 P.2d at 853 (citations and internal quotation marks omitted); see also State v. Kupau, 76 Hawai'i 387, 393, 879 P.2d 492, 498 (1994). If the instructions requested by the parties are inaccurate or incomplete but are necessary "in order for the jury to 'have a clear and correct understanding of what it is that they are to decide[,]' " then the trial court has the duty either to correct any defects or to fashion its own instructions. State v. Okumura, 78 Hawai'i 383, 411, 894 P.2d 80, 108 (1995) (citations omitted); accord State v. Kinnane, 79 Hawai'i 46, 50, 897 P.2d 973, 977 (1995).

Nevertheless, the "trial court is not required to instruct the jury in the exact words of the applicable statute but to present the jury with an understandable instruction that aids the jury in applying that law to the facts of the case." State v. Apao, 59 Haw. 625, 645, 586 P.2d 250, 263 (1978), subsequent resolution, 66 Haw. 682, 693 P.2d 405 (1984). Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. State v. Robinson, 82 Hawai'i 304, 310, 922 P.2d 358, 364 (1996). If that standard is met, however, "the fact that a particular instruction or isolated paragraph may be objectionable, as inaccurate or misleading, will not constitute ground for reversal." Pinero, 75 Haw. at 292, 859 P.2d at 1374. Whether a jury instruction accurately sets forth the relevant law is a question that this court reviews de novo. Richardson v. Sport Shinko (Waikiki Corp.), 76 Hawai'i 494, 504, 880 P.2d 169, 179 (1994).

B. Standard of Review for Plain Error

As a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error. Pinero, 75 Haw. at 291-2, 859 P.2d at 1374. If the substantial rights of the defendant have been affected adversely, the error will be deemed plain error. Id. Further, this Court will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights. State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988); see also State v. Kahalewai, 56 Haw. 481, 491, 541 P.2d 1020, 1026 (1975).

III. DISCUSSION

A. The Trial Court Properly Instructed the Jury on Sawyer's Defenses when It Did Not Provide an Attempted EMED

Manslaughter Instruction.

Defendant first contends that the trial court erred when it failed to give an attempted EMED manslaughter instruction sua sponte. In response, the prosecution argues that defense counsel waived the EMED manslaughter instruction when she admitted that "the record d[id] not reflect any evidence on t[he] issue."

As a preliminary matter, we note that, in State v. Holbron, we held that

a defendant charged with attempted murder, in violation of HRS §§ 705-500 and 707-701.5, may be convicted of attempted manslaughter, in violation of HRS §§ 705-500 and 707-702(2), by virtue of "extreme mental or emotional disturbance for which there is a reasonable explanation. " In this respect, we agree with the ICA's statement in State v. Nizam, 7 Haw.App. 402, 410, 771 P.2d 899, 904, reconsideration...