State v. Hatori, 22145.

• Decision Date: 17 November 1999
• Docket Number: No. 22145.,22145.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Randolph L. HATORI, Defendant-Appellant.
• Court: Hawaii Court of Appeals

990 P.2d 115

92 Haw. 217

STATE of Hawai`i, Plaintiff-Appellee, v. Randolph L. HATORI, Defendant-Appellant.

No. 22145.

Intermediate Court of Appeals of Hawai`i.

November 17, 1999.

T. Stephen Leong, on the briefs, Honolulu, for defendant-appellant.

Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that a defendant in a criminal case has no substantial right to a jury nullification instruction, that is, an instruction informing the jury that it may acquit a defendant contrary to the law given by the court and the evidence, or to the deletion of instructions which inform the jury that it must follow the law. Therefore we reject a claim to the contrary raised on appeal by Defendant-Appellant Randolph L. Hatori (Defendant).

We hold further that the legislature may without violating the equal protection clause, impose a greater statutory penalty on a prisoner who possesses marijuana as opposed to possessing alcohol. However, because Defendant's Class B felony conviction for possession of a drug was proved by the same facts as would establish the lesser Class C felony offense of possessing contraband, we vacate Defendant's conviction and remand the case to the Circuit Court of the First Circuit (the court) to enter a conviction as to the Class C felony as required by State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977).

I.

On May 7, 1997, a complaint was filed against Defendant, charging him with Promoting Prison Contraband in the First Degree, Hawai`i Revised Statutes (HRS) § 710-1022(1)(b) (1993). Circumstances leading to the charge are not in dispute. On April 29, 1997, Defendant, an inmate at the H&amacrlawa Correctional Facility, was standing in line for breakfast. Apparently, after Defendant's repeated requests for butter, a corrections officer placed his hand in Defendant's pocket to determine if it contained a butter packet. A struggle between the two ensued, and Defendant's pocket was torn. The officer recovered from Defendant's pocket a "tubular kind of rolled-up paper wrapped—wrapped kind of tight in cellophane." The item was later identified as a marijuana cigarette.

Defendant's jury trial in the instant case began on October 6, 1997. He was convicted as charged on October 9, 1997. At the November 17, 1998 sentencing hearing, the court imposed a sentence of five years' probation, and at Defendant's request, additionally ordered Defendant to "enter and remain in My Brother's Keeper Treatment Program [(a one-year residential in-patient drug treatment program) ] until clinically discharged... with the concurrence of the Adult Probation Division."

II.

On appeal, Defendant raises three points of error. First, he contends that the court "usurped" the jury's "constitutional right" to nullify the charges against Defendant. Second, Defendant argues that HRS § 710-1022 violates his constitutional right to equal protection under the law. Third, Defendant maintains that HRS § 710-1022 as applied, infringes on his constitutional right against cruel and unusual punishment. Plaintiff-Appellee State of Hawai`i (the State), on the other hand, urges that the instructions simply described the jury's role as fact finder and the court was not required to give an instruction on the jury's power of nullification. The State also asserts that Defendant has failed to substantiate his constitutional claims.

III.

Defendant argues that the instructions by the court advising the jury to "bind" itself to the law, and the reiteration of this proposition by the deputy prosecuting attorney (the prosecutor) undermined the jury's "power [of] nullif[ication]." He points to several instructions, discussed below.

During jury selection, the court instructed the jury that the court's duty was to decide the law to be applied in the case and the jury's duty was to apply the law to the facts as it found them.¹

The judge also directed the jury to follow the law "notwithstanding their personal opinions."² After the jury was impaneled, the judge reiterated the duty of the jurors to "follow the law."³ Finally, at the close of the case, the court told the jurors to follow the instructions it had given them.⁴

In addition to the foregoing instructions, Defendant contests the prosecutor's voir dire, in which two venirepersons were asked whether they would be able to "follow the law as instructed by ... the court." The prosecutor also asked another venireperson whether she "would have any trouble binding [her]self to the law as explained by the court[.]" Defendant contends these questions "systematically divested" the potential jurors of their power of nullification. Finally, Defendant objects to the prosecutor's summation, in which the prosecutor reminded the jurors that "after being selected as a juror in this case, all of you swore that you would follow the law."

IV.

A.

The court's instructions to the jurors were general statements regarding their duty to follow the law given by the judge. Placed in context, the instructions described the respective duties of the judge and jury. The instructions explained the jurors' duty to adhere to the law as stated by the court, and their obligation to avoid personal opinions about the law from influencing their decision.⁵ "`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)) (emphasis omitted). For the reasons stated herein, we believe the given instructions, when read and considered as a whole, were not so affected.

B.

We note that Defendant did not object to these instructions or to the prosecutor's remarks during jury selection or at trial. In State v. Sawyer, 88 Hawai`i 325, 966 P.2d 637 (1998), the Hawai`i Supreme Court stated that "jury instructions to which no objection has been made at trial will be reviewed only for plain error. If the substantial rights of the defendant have been affected adversely, the error will be deemed plain error." Id. at 330, 966 P.2d at 642 (citations omitted). Additionally, this court has held, in addressing a defendant's failure to object to the prosecutor's statements made during closing argument, that "[m]atters not raised by objection in the trial court are still reviewable at the discretion of the appellate court." State v. Schmidt, 84 Hawai`i 191, 201, 932 P.2d 328, 337-38 (App.1997) (citing State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 675 (1988) (citations omitted)). Applying plain error analysis,⁶ we conclude no substantial rights of Defendant were affected.

V.

A.

Defendant's position apparently is that an instruction on jury nullification should have been given,⁷ or that the instructions should implicitly allow for nullification. The jury's nullification power has been described as "the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence." State v. Bonacorsi, 139 N.H. 28, 648 A.2d 469, 470-71 (1994) (internal quotation marks and citations omitted). Thus, "[n]ullification occurs when a jury—based on its own sense of justice or fairness—refuses to follow the law and convict in a particular case even though the facts seem to allow no other conclusion but guilt." Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice?, 30 Am.Crim. L.Rev. 239 (1993). See also Leipold, Rethinking Jury Nullification, 82 Va. L.Rev. 253 (1996) ("Jury nullification occurs when the defendant's guilt is clear beyond a reasonable doubt, but the jury, based on its own sense of justice or fairness, decides to acquit.").

Tracing its roots to early American colonial days, the doctrine stems from a time when "juries were nearly always recognized as having the power to judge both law and fact." United States v. Moylan, 417 F.2d, 1002, 1005-06 (4th Cir.1969). It has been suggested that jury nullification "made a great deal of sense at a time when American law was in its infancy and American jurisprudence not yet fully developed[,]" and was explained by "the almost total absence of an established legal profession; ... the pervasive influence of natural rights philosophy; and ... the shared experience of living under —and then rebelling against—a tyrannical form of government." People v. Douglas, 178 Misc.2d 918, 680 N.Y.S.2d 145, 152 n. 17 (1998).

B.

The jury's power to nullify is not expressly set forth in the text of the federal constitution, and "the origins of jury nullification remain elusive." King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom, 65 U. Chi. L. Rev 433, 444 (1998). The jury nullification power is said to be rooted in the sixth amendment's guarantee to jury trial. W.R. LaFave & J.H. Israel, Criminal Procedure § 21.1(g), at 701 (1984). The ninth and tenth amendments have been suggested as the source of such power because "[c]itizens of this country are a prime heir to the common law right of jury nullification[] ... [and] powers not delegated to the United States nor prohibited to the States remain reserved to the States or to the people."⁸ Barnet, New York Considers Jury Nullification: Informing the Jury of its Common Law Right to Decide Both Facts and Law, 65 N.Y. State B.J. 40, 44 n. 11 (1993). Plainly, at the least, the nullification power rests in the unreviewable nature of an acquittal in a criminal case, because "a jury verdict of not guilty is not subject to reversal or to review in any manner whatsoever." W.R. LaFave & J.H. Israel, supra, at 700.

Despite the dispute as to its source, the jury's nullification power...