State v. Gonsalves

• Decision Date: 09 September 2005
• Docket Number: No. 27078.,27078.
• Citation: 119 P.3d 597
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Richard GONSALVES, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 597

119 P.3d 597

STATE of Hawai'i, Plaintiff-Appellee, v. Richard GONSALVES, Defendant-Appellant.

No. 27078.

Supreme Court of Hawai'i.

September 9, 2005.

Clifford B. Hunt, Honolulu, on the briefs, for defendant-appellant Richard Gonsalves.

Daniel H. Shimizu, deputy prosecuting attorney, on the briefs, for the plaintiff-appellee State of Hawai'i.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.; and ACOBA, J., concurring separately, with whom DUFFY, J., joins.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Richard Gonsalves appeals from the judgment of the circuit court of the first circuit, the Honorable Virginia L. Crandall presiding, convicting him of and sentencing him for the offense of promoting a dangerous drug in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1242(1)(c) (1993 & Supp.2003).¹ On appeal, Gonsalves argues that the circuit court erred (1) by excusing the jury for the day rather than receiving the jury's non-verdict following the jury's communication to the court, which stated that it was "unable to reach a unanimous decision" and (2) by sentencing him as a repeat offender to a mandatory minimum term of imprisonment of three years and four months "without submitting the issue of whether [he] qualifies as [a] repeat offender to a jury" to be proven beyond a reasonable doubt, in contravention of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

I. BACKGROUND

On January 5, 2004, Gonsalves was charged by complaint with promoting a dangerous drug in the second degree, in violation of HRS § 712-1242(1)(c), see supra note 1.

The circuit court conducted a jury trial that commenced on September 29, 2004 and concluded on October 8, 2004.

At 1:15 p.m. on October 6, 2004, during the first day of jury deliberations, the jury foreperson sent communication No. 3 to the circuit court. The communication read, "What is the procedure for returning a non-verdict?" The circuit court responded, "You may advise the court by written communication if you are not able to reach a verdict." At 2:00 p.m. that same day, the jury sent communication No. 4, which stated, "We are unable to reach a unanimous decision." The circuit court responded, "You are excused for today. Return tomorrow at 9:00 a.m." Gonsalves objected to the circuit court's responses to the jury's communication No. 4 as follows:

[DEFENSE COUNSEL]: Defense objection was that they should be allowed — because they indicated that they were unable to reach a unanimous decision, the court should have reconvened and taken their decision. I also informed the clerk of the court that reserving my objection to the court sending them home for the day, I proposed an alternative instruction to the jury or response to the jury[,] which was, "Would additional time deliberating assist you in your deliberations?"

And I believe then over that objection, the court sent them home. Again, ... they should have been asked would additional time assist them before they were sent home because if they responded that no, additional time would not assist them, then the court should have reconvened and taken their decision.

The jury did not deliberate on October 7, 2004. At 9:30 a.m. on October 8, 2004, the jury sent communication No. 5, which stated, "We are submitting a non-verdict." The circuit court responded, "Would additional time deliberating assist you in your deliberations?" At 2:10 p.m., the jury sent communication No. 6, which stated, "Can you elaborate or explain in layman's terms element # 2 on page 25 of the instructions." The circuit court responded, "Words are to be given their common and ordinary meaning." At 2:58 p.m. that same day, the jury announced that it had reached a unanimous verdict. The jury found Gonsalves guilty as charged of promoting a dangerous drug in the second degree.

On December 1, 2004, the State of Hawai'i [hereinafter, "the prosecution"] filed a motion for consecutive term sentencing, which sought to revoke Gonsalves's probation with respect to prior convictions in Cr. Nos. 00-1-0406, 99-0200, and 98-2519 and resentence him to terms of imprisonment that would run consecutively to the term of imprisonment imposed in Cr. No. 04-1-0004.² That same day, the prosecution also filed a motion for sentencing of a repeat offender to a mandatory minimum term of imprisonment of three years and four months, pursuant to HRS § 706-606.5(1)(a)(iii) (1993 & Supp.2004).³

On December 17, 2004, Gonsalves filed a memorandum in opposition to the prosecution's motions for consecutive and repeat offender sentencing, arguing that both the "imposition of a consecutive sentence" and "a mandatory minimum sentence upon [him] pursuant to the repeat offender statute without a finding by a jury that would support a consecutive sentence violates [his] Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process under Apprendi v. New Jersey and Blakely v. Washington."

On January 13, 2005, the circuit court conducted a sentencing hearing and a hearing on the prosecution's motions for (1) repeat offender sentencing, (2) consecutive term sentencing, and (3) revocation of probation and resentencing, and (4) sentencing together with Cr. Nos. 98-2519, 99-0200, and 00-1-0406. At the hearing, the circuit court took judicial notice of the records and files in Cr. Nos. 98-2519, 99-0200, and 00-1-0406. The circuit court noted that Gonsalves was on probation in Cr. Nos. 98-2519, 99-0200, and 00-1-0406 at the time of his conviction of promoting a dangerous drug in the second degree in Cr. No. 04-1-0004, such that, pursuant to HRS § 706-625 (Supp.2003),⁴ the court was required to revoke his probation in the foregoing three criminal numbers for his conviction of a felony. Gonsalves argued against the imposition of consecutive terms and sentencing as a repeat offender on the basis that both contravened the holdings in Apprendi and Blakely.

The circuit court granted the prosecution's motion to sentence Gonsalves as a repeat offender and denied the prosecution's motion for consecutive term sentencing. The circuit court resentenced Gonsalves to five-year indeterminate maximum terms of imprisonment in Cr. Nos. 98-2519, 99-200, and 00-1-406. In Cr. No. 04-1-0004, the circuit court sentenced Gonsalves to a ten-year indeterminate maximum term of imprisonment subject to concurrent mandatory minimum terms of (1) three years and four months as a repeat offender pursuant to HRS § 706-606.5, see supra note 3, and (2) two years and six months based on the involvement of the substance methamphetamine pursuant to HRS § 712-1242(3), see supra note 1. The circuit court ordered all sentences to run concurrently with one another.

On January 21, 2005, Gonsalves timely filed a notice of appeal.

II. STANDARDS OF REVIEW

A. Jury Instructions And Responses To Jury Communications

"`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.'" State v. Kinnane, 79 Hawai'i 46, 49, 897 P.2d 973, 976 (1995) (quoting State v. Kelekolio, 74 Haw. 479, 514-15, 849 P.2d 58, 74 (1993) (citations omitted)).... See also State v. Hoey, 77 Hawai'i 17, 38, 881 P.2d 504, 525 (1994).

"`[E]rroneous 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. Pinero, 70 Haw. 509, 527, 778 P.2d 704, 716 (1989) ... (quoting Turner v. Willis, 59 Haw. 319, 326, 582 P.2d 710, 715 (1978)).

[E]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction.

State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308 (1981) (citations omitted). If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside. See Yates v. Evatt, 500 U.S. 391, 402-03, 111 S.Ct. 1884, 114 L.Ed.2d 432 ... (1991)[.]

State v. Holbron, 80 Hawai'i 27, 32, 904 P.2d 912, 917, reconsideration denied, 80 Hawai'i 187, 907 P.2d 773 (1995) (some citations omitted) (brackets in original) (emphasis deleted); see also State v. Loa, 83 Hawai'i 335, 350, 926 P.2d 1258, 1273 (1996); State v. Robinson, 82 Hawai'i 304, 310-11, 922 P.2d 358, 364-65 (1996).

State v. Arceo, 84 Hawai'i 1, 11-12, 928 P.2d 843, 853-54 (1996) (footnote omitted).

"[T]he circuit court's response to a jury communication is the functional equivalent of an instruction." State v. Haili, 103 Hawai'i 89, 101, 79 P.3d 1263, 1275 (2003) (quoting State v. Uyesugi, 100 Hawai'i 442, 458, 60 P.3d 843, 859 (2002) (citations and internal quotation signals omitted)).

B. Sentencing

[A] sentencing judge generally has broad discretion in imposing a sentence. State v. Gaylord, 78 Hawai'i 127, 143-44, 890 P.2d 1167, 1183-84 (1995); State v. Valera, 74 Haw. 424, 435, 848 P.2d 376, 381 ... (1993). The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Gaylord, 78 Hawai'i at 144, 890 P.2d at 1184; State v. Kumukau, 71 Haw. 218, 227-28, 787 P.2d 682, 687-88 (1990); State v. Murray [,] 63 Haw. 12, 25, 621 P.2d 334, 342-43 (1980); State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 16 (1979).

Keawe v. State, 79 Hawai'i 281, 284, 901 P.2d 481, 484 (1995). "[F]actors which indicate a plain and manifest abuse of...