State v. Eberly

• Decision Date: 02 June 2005
• Docket Number: No. 24750.,24750.
• Citation: 112 P.3d 725,107 Haw. 239
• Parties: STATE of Hawai`i, Plaintiff-Appellee-Petitioner, v. Bardwell EBERLY, Defendant-Appellant-Respondent.
• Court: Hawaii Supreme Court

112 P.3d 725

107 Haw. 239

STATE of Hawai`i, Plaintiff-Appellee-Petitioner, v. Bardwell EBERLY, Defendant-Appellant-Respondent.

No. 24750.

Supreme Court of Hawaii.

June 2, 2005.

Daniel H. Shimizu, deputy prosecuting attorney, on the application, for plaintiff-appellee-petitioner State of Hawai`i. LEVINSON, DUFFY, and ACOBA, JJ.; and MOON, C.J., dissenting; and NAKAYAMA, J., dissenting.

Opinion of the Court by LEVINSON, J.

On April 12, 2005, the plaintiff-appellee-petitioner State of Hawai`i [hereinafter, "the prosecution"], filed an application for a writ of certiorari, requesting that this court review the published decision of the Intermediate Court of Appeals (ICA) in State v. Eberly, No. 24750, ___ Hawai`i ___, 116 P.3d 703, 2005 WL 605551 (Haw.App. Mar 15, 2005) [hereinafter, "the ICA's opinion"], (1) vacating the October 12, 2001 judgment of the circuit court of the first circuit, the Honorable Michael A. Town presiding, which convicted the defendant-appellant-respondent Bardwell Eberly of and sentenced him for the offenses of (a) possession of a firearm by a person convicted of certain crimes, in violation of Hawai`i Revised Statutes (HRS) §§ 134-7(b) and (h) (Supp.1995)¹ (Counts I and II), and (b) possession of ammunition by a person convicted of certain crimes, in violation of HRS §§ 134-7(b) and (h) (Count III), and (2) remanding the present matter to the circuit court for a new trial. On April 18, 2005, we granted the prosecution's application.

The prosecution contends that "the ICA erred in vacating Eberly's firearms convictions as the circuit court did not commit plain error when it did not instruct the jury that the [prosecution] was required to disprove beyond a reasonable doubt Eberly's ignorance or mistake of fact defense."

We granted certiorari because the ICA's opinion is "inconsisten[t]," see HRS § 602-59(b) (1993), with State v. Locquiao, 100 Hawai`i 195, 58 P.3d 1242 (2002), to the extent that the narrow holding of Locquiao does not, in and of itself, expressly mandate that trial courts specifically instruct juries that the prosecution bears the burden of proving beyond a reasonable doubt that defendants, who have adequately raised the non-affirmative defense, were not ignorant or mistaken as to a fact that negatives the state of mind required to establish an element of the offense or offenses with which they are charged. Nevertheless, we now hold, consistently with our jurisprudence regarding other non-affirmative defenses, that trial courts must specifically instruct juries, where the record so warrants, that the burden is upon the prosecution to prove beyond a reasonable doubt that the defendant was not ignorant or mistaken as to a fact that negates the state of mind required to establish an element of the charged offense or offenses. Accordingly, we (1) affirm the ICA's opinion on different grounds, (2) vacate the circuit court's October 12, 2001 judgment, and (3) remand this matter to the circuit court for a new trial.

I. BACKGROUND

A. Factual And Procedural History

The following facts, adduced in the circuit court and recited in the ICA's opinion, are undisputed in the prosecution's application:

Eberly was indicted on September 4, 1997 for Possession of a Firearm by a Person Convicted of Certain Crimes and Possession of Ammunition by a Person Convicted of Certain Crimes. The following evidence was adduced at the jury trial, which began on July 10, 2001.

On July 17, 1995, Eberly went to room 356 at the Outrigger West Hotel to pick up a fake identification card (ID) Eberly had purchased from Bert Koide (Koide). After Eberly arrived, Koide received a phone call and left the room. Eberly testified that Koide told him "not to let nobody in the room" because Koide did not want anyone "touching the girl's stuff, or his bag."

That same day, Police Officers Paul Ledesma (Ledesma) and Robert Stepien (Stepien) (collectively, the Officers) were dispatched to the Outrigger West Hotel to investigate the possible fraudulent use of a credit card. The Officers arrived at the hotel and met with Outrigger Security Officer Chris Waggoner (Waggoner). Waggoner informed the Officers that room 356 was registered to Koide and the room had been rented with a stolen credit card. Ledesma, Stepien, and Waggoner went to the room, and Waggoner knocked on the door.

Eberly answered the door, and the Officers asked if Koide was in. Eberly responded no. Waggoner told Eberly he was going to "trespass" Eberly because Eberly should not have been in the room without Koide since Koide was the only registered guest.

Waggoner entered the room, followed by the Officers, to make sure Koide was not in the room. Waggoner saw a blue bag near the bed and asked Eberly if the bag was his. Both Waggoner and Ledesma testified that Eberly did not respond. Waggoner informed Eberly that it was hotel policy to inventory all the property inside the room. Waggoner picked up the blue bag and started to open it. Eberly testified he told Waggoner twice that Waggoner could not open the bag and once that Waggoner needed a warrant. Eberly testified he told Waggoner the bag was not his. Eberly also testified that he had not touched, lifted up, opened up, or looked inside the blue bag and did not know what was in it, and "as far as [he] knew it was [Koide's] bag."

Eberly testified that Waggoner partially unzipped the bag, zipped it back up, handed the bag to Eberly, and Eberly "grabbed the bag." When Eberly grabbed the bag, Waggoner said "there's weapons in the bag." Eberly testified that he "froze with fear."

Waggoner and Ledesma testified that when Waggoner picked up the bag, Eberly grabbed it away from Waggoner and starting moving toward the far end of the room with the bag near his belt line. Ledesma testified that he thought a weapon could be in the bag, so he told Eberly to drop the bag. Eberly did not follow Ledesma's instructions and started walking away. Ledesma grabbed Eberly's left arm, and Stepien grabbed Eberly's right arm. The Officers struggled with Eberly, trying to get Eberly to drop the bag. Waggoner grabbed the bag out of Eberly's hand and threw it on the floor. The Officers finally took Eberly to the ground and put handcuffs on him.

Eberly testified that after the Officers grabbed him, one of them started hitting him in the ribs and the other one got him in a "choke hold." Ledesma testified that no one put Eberly into a choke hold. Waggoner testified that Ledesma and Stepien struck Eberly in the ribs twice trying to get Eberly to drop the bag, but he did not see either officer put Eberly in a choke hold.

The blue bag was partially open, and Ledesma saw a gun in the bag. When the Officers opened the bag, they discovered, among other things, two guns, a clip to hold bullets, a bullet and casing, a Florida driver's license with Eberly's picture on it but with a different name, and another ID card. Stepien searched Eberly and discovered bullets in Eberly's pants pocket. Waggoner testified that he saw bullets on the floor. Eberly denied that he had any bullets or that Stepien recovered any bullets from his pocket. Eberly testified that one of the police officers who showed up later dropped the bullets on the ground, and when Eberly first saw the bullets, they were on the ground. Eberly also saw several ID cards on the ground next to him. The Officers subsequently arrested Eberly.

During the trial, the circuit court allowed the jury to submit questions to witnesses solely to clarify facts of the case. Eberly made a general objection to all questions from the jury. The jury asked three questions. The circuit court allowed two of the three questions and allowed both sides to ask follow-up questions.

After the [prosecution] rested its case, Eberly moved for a judgment of acquittal, which the circuit court denied after oral argument. At the end of the trial, Eberly renewed his motion for judgment of acquittal, which the court again denied. On July 16, 2001, the jury returned guilty verdicts on all charges. Eberly filed a motion on July 23, 2001 requesting a new trial and a motion on July 25, 2001 for judgment of acquittal.

On September 14, 2001, the [prosecution] filed a Motion for Sentencing of Repeat Offender and a Motion for Extended Term of Imprisonment based on Eberly's prior criminal history and current multiple convictions. The circuit court sentenced Eberly on Counts I and II to an extended twenty-year term of imprisonment on each count, with a mandatory minimum term of imprisonment of three years and four months. The circuit court took no action on Count III. The Judgment was filed on October 12, 2001.

On November 23, 2001, the circuit court entered its Findings of Fact, Conclusions of Law, and Order Denying Motion for Judgment of Acquittal or for New Trial. On December 4, 2001, the circuit court filed an Order Granting Motion for Sentencing of Repeat Offender. The circuit court entered its Finding of Facts, Conclusions of Law, and Order Granting Motion for Extended Term of Imprisonment on December 7, 2001. Eberly timely appealed.

ICA's opinion, at ___ - ___, 116 P.3d at 705-06, 2005 WL 605551.

B. Jury Instructions

As the ICA noted,

[t]he jury instruction presented to the jury, without objection by Eberly, was: "In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance if the ignorance negatives the state of mind required to establish an element of the offense."

Eberly had requested the following jury instruction:

In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance if the ignorance negatives the state of mind required to establish an element of the offense. Therefore, if you have any reasonable doubt that the defendant did not know there were handguns in the bag, you must find the Defendant not guilty of Counts I and II.²

(Footnote added.)

The State objected to the second sentence of

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