State v. Fox

• Decision Date: 01 September 1988
• Docket Number: No. 12245,12245
• Citation: 760 P.2d 670,70 Haw. 46
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Darryl Andrew FOX, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 670

760 P.2d 670

70 Haw. 46

STATE of Hawaii, Plaintiff-Appellee, v. Darryl Andrew FOX, Defendant-Appellant.

No. 12245.

Supreme Court of Hawai'i.

Sept. 1, 1988.

Syllabus by the Court

1. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. Thus, the purpose of Rule 410 of the Federal Rules of Evidence and its Hawaii counterpart, Rule 410 of the Hawaii Rules of Evidence, is to promote disposition of criminal cases by compromise.

2. Rule 410(4) of the Hawaii Rules of Evidence on its face renders inadmissible against a defendant who was a participant, statements made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty.

3. A defendant whose attorney received an offer of a plea agreement from an attorney for the prosecuting authority and responded to the offer undoubtedly was a participant in plea discussions.

4. The analysis articulated in United States v. Herman, 544 F.2d 791 (5th Cir.1977), is no longer viable as a guide in determining what statements are inadmissible under Rule 410(4) of the Hawaii Rules of Evidence.

5. Fairness to the trial court impels a recitation in full of the grounds supporting an objection to the introduction of inadmissible matter. Otherwise, the court would be denied the opportunity to give the objection adequate consideration and rule correctly. The statutory provisions governing appeals in criminal cases thus prevent consideration by this court, save in exceptional circumstances, of alleged errors that were not called to the attention of the trial court when committed.

6. Where plain errors were committed and substantial rights were affected thereby, the errors may be noticed although they were not brought to the attention of the trial court. And this court may notice plain error even when not presented by the appellant.

7. An appellate court's decision to take notice of plain error must turn on the facts of the particular case to correct errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings.

8. An appellate court's power to deal with plain error is one to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system that a party must look to his counsel to protect him and that he must bear the cost of the mistakes of his counsel.

Daniel Pagliarini (Susan Barr, on the brief), Deputy Public Defenders, Honolulu, for defendant-appellant.

Dale Yamada Ross, Deputy Pros. Atty., Captain Cook, for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

NAKAMURA, Justice.

Following a jury trial in the Circuit Court of the Third Circuit, Darryl Fox was adjudged guilty of Terroristic Threatening in the First Degree. The dispositive questions in his appeal from the judgment of conviction are whether inadmissible evidence of plea discussions was admitted in error and if it was, whether this constituted plain error. Concluding from a review of the record that plain error was committed, we vacate the judgment and remand the case for a new trial.

I.

An indictment was filed in the circuit court on May 27, 1986, charging that on November 15, 1985, Darryl Fox "threaten[ed] ... to cause bodily injury to CHARLES CARSTEN with intent to terrorize ... CHARLES CARSTEN with the use of a dangerous instrument, to wit: a firearm, thereby committing the offense of Terroristic Threatening in the First Degree, in violation of Sections 707-715(1) and 707-716(1)(d), Hawaii Revised Statutes...." The alleged offense occurred when the defendant, while walking through the parking lot of a supermarket in Kona, saw an acquaintance, Carsten, and called him, but by another name. When Carsten did not answer, the defendant slapped him on the shoulder. This caused Carsten, who was walking with the aid of a cane, to lose his balance and swing an arm out. As a consequence, the cane struck the defendant's forehead.

As the defendant staggered from the blow, what Carsten later described as a cocked and loaded Deringer with white grips fell from the defendant's waistband. According to Carsten, the defendant then picked the gun up, pointed it at Carsten's head, and said: "Why did you fuckin' hit me? ... I wish I could blow your brain out.... I want to blow you away." The incident was witnessed by a woman who reported it to police. The defendant fled the scene before the police arrived. When apprehended later, the defendant had no weapon on his person. He denied he had a gun during the encounter, and his explanation of what happened was: "The fucker hit me with a cane. I don't have a gun. The fucker hit me, so I grabbed him by the face and told him not to fuck with me."

The defendant was served with a copy of the indictment on July 6, 1986, and a deputy public defender was appointed to defend him on July 29, 1986. Early in September, the deputy prosecuting attorney assigned to prosecute the defendant apprised defense counsel that enough evidence had been uncovered to charge Darryl Fox with yet another crime, Theft in the First Degree, for failing to return rented personal property. Counsel was advised that the State would not prosecute Darryl Fox for this offense if he pleaded guilty to the pending indictment. The offer of a plea agreement was not accepted because the defendant insisted there was no gun involved in the encounter between Carsten and himself. Carsten, the defendant had told counsel, could easily have thought there was a gun in his hand because he had a black bandanna wrapped around his hand. Counsel repeated this to the prosecutor.

Several weeks later, the offer was put in writing; the letter from the prosecutor dated September 23, 1986 stated:

As we discussed some time ago, the State has offered not to prosecute your client for Failure to Return Rental Property or Theft 1st in connection with report no. C-42699/KN involving Scott's Video in Keauhou. In exchange, your client is to plead to Terroristic Threatening in the First Degree.

Counsel was further advised the offer would expire on September 29, 1986, when the case was to be called for setting. At the calendar call, the trial court was informed that the defendant would proceed to trial. The prosecutor also agreed to extend her offer to October 6, 1986.

During the first week in October, Darryl Fox and his father admitted to counsel that the defendant had what looked like a pistol when he met Carsten. What he actually had, they said, was a toy pistol, a replica of a Deringer. Since counsel had "stipulated and agreed" with the prosecutor on September 26, 1986 to "disclose the nature of any defense which counsel intend[ed] to use at trial[,]" she passed this information on to the prosecutor.

When the case was tried in January of 1987, the defendant called his father as a witness. The father testified he received a cap pistol from his father in 1957. He described the pistol as an almost perfect replica of a Deringer, only too light to be an authentic firearm. The defendant's mother, he said, took the pistol when they separated some years ago. This was confirmed by the defendant's mother when she testified. Her friend also testified as a defense witness, and said he saw the cap pistol once while cleaning the defendant's room. The mother's friend reiterated what the father said about the weight of the pistol.

The defendant took the stand in his own defense and claimed he was carrying a cap pistol when he met Carsten because he had been harassed and assaulted on prior occasions. In anticipation of cross-examination on this point, counsel asked defendant why he told the police he had no gun. The defendant replied he was "scared" when he was apprehended. But as counsel anticipated, the prosecutor cross-examined defendant at length on the matter. Among other things, she asked him about the bandanna in his hand that Carsten could have believed was a gun. When the defendant admitted telling counsel this, the prosecutor followed up by asking him whether "it [wasn't] true that this toy gun theory was something that just came about months after you had been arrested[.]"

Counsel objected to the question, but failed to state why it was objectionable. Her objection was: "I'm not sure whether the Prosecutor is correctly stating the case." The objection was overruled, the defendant was subjected to further cross-examination on the bandanna and the toy gun, and he admitted telling his "mother and everybody" about the toy gun right away, but not counsel.

The jury instructions requested by the State at the close of evidence included one covering the "false and misleading statements" made by the defendant at trial. Counsel for the defendant questioned whether it was apt in the circumstances, stating: "I was very surprised when [the prosecutor] brought that up [at trial] because I thought that statements made--kind of negotiations or something weren't supposed to be brought up." The trial court did not respond, and counsel did not pursue the matter.

After the jury returned a guilty verdict, defendant moved for a new trial or a judgment of acquittal. He expressly raised the impropriety of admitting statements made in the course of plea discussions. The State countered with an argument that the statements in question were disclosed to the prosecutor pursuant to the agreement of counsel to disclose the nature of any defense the defendant would rely on at trial. The motion was denied, and the defendant's appeal to this court followed.

II.

We begin our consideration of the issues posed by the appeal with a brief discussion of plea agreements and their place in our system of criminal justice.

A.

"The disposition of criminal charges by agreement...