State v. Gomes

• Decision Date: 15 March 2000
• Docket Number: No. 22377.,22377.
• Citation: 93 Haw. 13,995 P.2d 314
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. John D. GOMES, Defendant-Appellant.
• Court: Hawaii Supreme Court

995 P.2d 314

93 Haw. 13

STATE of Hawai`i, Plaintiff-Appellee, v. John D. GOMES, Defendant-Appellant.

No. 22377.

Supreme Court of Hawai`i.

March 15, 2000.

As Amended March 23, 2000.

Hayden Aluli, on the briefs, Honolulu, for the defendant-appellant John D. Gomes.

Loren J. Thomas, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and Circuit Court Judge TOWN, Assigned by Reason of Vacancy.

Opinion of the Court by LEVINSON, J.

The defendant-appellant John D. Gomes appeals from the judgment, guilty conviction, and sentence of the first circuit court, filed on February 9, 1999. On appeal, Gomes argues that the circuit court: (1) plainly erred when the presiding judge failed to recuse himself sua sponte; (2) plainly erred in failing to engage Gomes in a colloquy regarding his right to an impartial tribunal; (3) plainly erred in failing to give the jury a unanimity instruction; (4) plainly erred in its instructions regarding third degree assault and self-defense; and (5) erred "cumulatively" such that Gomes was denied a fair trial. We disagree. Accordingly, we affirm the circuit court's judgment.

I. BACKGROUND

On November 12, 1997, the grand jury returned an indictment against Gomes, charging him with one count of assault in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 707-711(1)(a) (1993).¹ The indictment charged Gomes with having intentionally or knowingly caused substantial bodily injury to Erich Bohne.

Prior to trial, the following colloquy transpired:

JUDGE JOHN LIM: ... Before we start, I've discussed this with counsel in chambers. I have had contact with Mr. Gomes just briefly. I was surfing M[&amacr]kaha early one morning. I was basically alone and then Mr. Gomes paddled out, and I kind of got in his way a couple times, minor times.

I think he got a little bit upset. He did start to berate me; I apologized, but the berating continued.

I think even Mr. Gomes will admit that there was an [ai]r of physical menace there. But after things calmed down, he kind of paddled off and sat by himself. Seemed to be beating himself a little bit inside.

And he did apologize, come over, shake my hand, and we had a nice conversation after that. That was my only contact with Mr. Gomes. It's quite ambivalent, and I can assure counsel and Mr. Gomes that I bear no grudge. I have no opinion, no impression, and I can be fair and impartial.

Acknowledging, Mr. Gomes, that if you lose this trial, I'll be sentencing you, you understand that?

[Gomes]: Yes.

JUDGE LIM: Okay. And so if there's any motion for recusal, I'll entertain it now.

[Deputy Public Defender (DPD) ]: Your Honor, there's no motion, Your Honor.

JUDGE LIM: You sure, Mr. Gomes?

[Gomes]: Yes.

At Gomes's two-day trial, beginning on August 26, 1998, Bohne testified as follows. On March 23, 1997, both Bohne and Gomes were surfing at Chun's Reef in Hale`iwa. Gomes was knocked off of his surfboard, as a result of which he lost the board. Gomes swam up to Bohne, and said, "Get off your board. I'm taking your board." Feeling intimidated, Bohne gave Gomes his board. Gomes paddled out on Bohne's board and retrieved his lost board. Gomes returned Bohne's board to him and said, "Be glad I brought your board back." Bohne responded, "That wasn't too cool[,] what you just did." Gomes answered, "Oh yeah? You want to do something about it?" Bohne attempted to ignore Gomes's repeated invitations to fight. Gomes paddled up alongside Bohne and punched him in the nose. Bohne felt blood running from his nose, and his eyes began to tear. Bohne paddled to shore, and Gomes paddled in alongside him.

Once on the beach, Bohne said that he was going to call the police. Bohne and Gomes had an argument, and then the two simultaneously began a "wrestling match." Another surfer broke up the fight. Bohne returned home and telephoned the police.

Dr. Robert J. Brumblay, an emergency physician practicing at Wahiawa General Hospital, testified that he treated Bohne on March 23, 1997. Bohne presented a broken nose, bruises, and a concussion. Dr. Brumblay testified that the broken nose was consistent with being punched in the face with a fist.

Gomes testified that, following his verbal altercation with Bohne in the water, he did strike Bohne without provocation. Gomes stated that he did so because he thought Bohne was going to strike him and he wanted to avoid a fight.

In its rebuttal argument, the prosecution stated:

[Deputy Prosecuting Attorney (DPA) ]:... They say, well, it was only one hit. One hit did the job. As soon as [Bohne] was hit, his nose was bleeding. His eyes were tearing up....

....

So when they are wrestling on the beach, yeah, we are talking about at that point maybe it is mutual. But we are not talking about this. We are talking about out on the water when [Bohne] is doing everything he can to avoid the situation, to try and get out of it, and [Gomes] won't let him. Basically [Gomes] owns the waves, he can do what he wants, what are you going to do about it? That's what happened, ladies and gentlemen in this case, and we ask that you come back with a verdict of guilty as charged to Assault in the Second Degree.

(Emphases added).

The jury was instructed as to the elements of the included offense of third degree assault as follows:

There are three material elements of the offense of Assault in the Third Degree, each of which the prosecution must prove beyond a reasonable doubt:

These three elements are:

1. That, on or about March 23, 1997, in the City and County of Honolulu, State of Hawai[`]i, [Gomes] caused bodily injury to Erich Bohne; and

2. That [Gomes] did so intentionally, knowingly[,] or recklessly; and

3. That [Gomes] did so without justification; in other words, that [Gomes] did not do so in self-defense.

The prosecution objected to the above instruction, and Gomes responded as follows:

[Deputy Public Defender (DPD) ]:.... I believe that it should be included just for the fact that it just makes it easier for the jury to follow. They have to find that the State proved it beyond a reasonable doubt just like ... the two elements that [are] originally there, and if it makes it easier on the jury, I think it should be included.

The circuit court further instructed the jury as follows:

Justifiable use of force, commonly known as self-defense, is a defense to the... included offense of assault in the third degree. The burden is on the prosecution to prove beyond a reasonable doubt that the force used by [Gomes] was not justifiable. If the prosecution does not meet its burden, then you must find [Gomes] not guilty.

....

.... If and only if you find that [Gomes] was reckless in having a belie[f] that he was justified in using self-protective force against another person or that [he] was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use of force against the other person, then the use of such self-protective force is unavailable as a defense to the offense of assault in the third degree based on a reckless state of mind.

(Emphasis added).

The jury found Gomes guilty of the charged offense on August 27, 1998. At Gomes's sentencing hearing, the circuit court stated, inter alia:

THE COURT: Usually, Mr. Gomes, this kind of crime deserves some prison. If you had a worse record, it would be five years. This kind of record, at least six months to a year; and that's the gravity of the situation. And the denial of responsibility in the letter to the Court is disturbing and would have in any other case gotten one year jail term as a term and condition of probation. Yes, sir.

....

... Because I mean it's not any part of my sentencing, but I'm concerned, you know. I mean your remorse at this sentencing[,] I'm kind of concerned because I heard during this winter system you beat up a guy in the bathroom at [P]ipe. So there's still a lot to be done, Mr. Gomes, no matter what you told me today at sentencing. I know. I surf. I see you out in the water couple times already. So if I hear about any[]more of these incidents, I will personally tell the probation officer to revoke. So like I said, I hope this is a benefit to you. You understand the terms and conditions of your probation?

On February 9, 1999, the circuit court entered its judgment, guilty conviction, and sentence. The circuit court ordered Gomes to five years of probation.² Gomes was also ordered to pay restitution in the amount of $1,327.96 and a fine in the amount of $5,000. The time for appeal was extended. Gomes entered a timely notice of appeal on March 24, 1999.

II. STANDARDS OF REVIEW

A. Failure To Recuse

This court has yet to articulate the appropriate standard of review for a judge's failure to sua sponte recuse himself or herself. Although points of error not raised before the trial court will ordinarily be disregarded on appeal, we may notice plain error. See State v. Pulse, 83 Hawai`i 229, 238-39, 925 P.2d 797, 806-07 (1996)

(citing State v. Schroeder, 76 Hawai`i 517, 532, 880 P.2d 192, 207 (1994) (citation omitted)); see also Hawai`i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(D) (1994) (appellate courts may notice plain error even if not presented as a point of error on appeal).

The Code of Judicial Conduct (Revised) (1992) (CJC) offers guidelines for the conduct of judges that relate to the disqualification of a judge. Canon 3(E)(1) of the CJC provides in pertinent part that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where ... the judge has a personal bias or prejudice concerning a party[.]" (Emphasis added.) Inasmuch as judges are encouraged to recuse themselves where there might be an appearance of impropriety, failure to move for recusal at the trial level cannot entirely preclude a party's...