State v. Martins

• Citation: 102 P.3d 1034,106 Haw. 136
• Decision Date: 20 December 2004
• Docket Number: No. 25021.,25021.
• Parties: STATE of Hawai'i, Plaintiff-Appellee-Respondent v. Mark Alan MARTINS, Defendant-Appellant-Petitioner.
• Court: Supreme Court of Hawai'i

102 P.3d 1034

106 Haw. 136

STATE of Hawai'i, Plaintiff-Appellee-Respondent v. Mark Alan MARTINS, Defendant-Appellant-Petitioner.

No. 25021.

Supreme Court of Hawai'i.

December 20, 2004.

As Amended January 3, 2005.

Joyce K. Matsumori-Hoshijo, deputy public defender, for defendant-appellant-petitioner Mark Alan Martins on the writ.

Arleen Y. Watanabe, deputy prosecuting attorney, for plaintiff-appellee-respondent State of Hawaii on the supplemental brief.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by LEVINSON, J.

On November 15, 2004, the defendant-appellant-petitioner Mark Alan Martins filed an application for a writ of certiorari (AWC), requesting that we review the Intermediate Court of Appeal's (ICA's) published opinion filed on October 14, 2004 (the ICA's opinion), affirming the March 1, 2002 judgment of the circuit court of the second circuit, the Honorable Reinette W. Cooper presiding, convicting him of and sentencing him for the following offenses: (1) terroristic threatening in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 707-717 (1993)¹ (included offense of Count I, charging terroristic threatening in the first degree); (2) reckless endangering in the second degree, in violation of HRS § 707-714 (1993)² (included offense of Count II, charging reckless endangering in the first degree); (3) place to keep a loaded firearm on a public highway, in violation of HRS § 134-6(d) (Supp.2001)³ (Count III); (4)place to keep a firearm, in violation of HRS § 134-6(c) (Supp.2003) (Count IV), see supra note 3; and (5) promoting a detrimental drug in the third degree, in violation of HRS § 712-1249(1) (1993) (Count VI).⁴See State v. Martins, 106 Hawai'i 62, 101 P.3d 671 (Haw.App.2004).

In his application, Martins's sole contention is as follows: "The ICA gravely erred in holding that the [circuit] court did not plainly err in failing to instruct the jury on the definition of a `true threat' because the evidence of terroristic threatening was Martins' conduct of `discharging his shotgun' and not his `remarks.'"

On November 22, 2004, we granted certiorari in order to clarify that, pursuant to State v. Valdivia, 95 Hawai'i 465, 24 P.3d 661 (2001), and State v. Chung, 75 Haw. 398, 862 P.2d 1063 (1993), the necessity of a jury instruction defining a "true threat" applies to all terroristic threatening prosecutions regardless of whether the charge is based exclusively upon the defendant's verbal statements, the defendant's physical conduct, or some combination of the two. See infra section III. Insofar as the circuit court plainly erred in failing to instruct the jury as to the definition of a "true threat," the ICA gravely erred in affirming the March 1, 2002 judgment of the circuit court. See HRS § 602-59(b) (1993). Accordingly, we (1) reverse the ICA's opinion as to section III.B, (2) vacate the circuit court's March 1, 2002 judgment of conviction as to the offense of terroristic threatening in the second degree, and (3) remand this case to the circuit court for retrial on that count.

I. BACKGROUND

A. Factual Background

As a preliminary matter, we adopt the following unchallenged factual background, as set forth in the ICA's opinion:

The charges against Martins arose out of an incident that occurred on May 15, 2000. At that time, Martins was living in his car.

Martins testified that he had driven to Nklele Point on the evening of May 14, 2000. Martins planned to target shoot on the 15th. At approximately 10:00 a.m. on the 15th, Martins assembled his shotgun and placed his targets. Martins heard motorcycles approaching and walked up a hill to get to high ground.

Hazel Cappal (Cappal), Wilbert Pascua (Pascua), and Ross Baybado (Baybado) (collectively, dirt bikers) were in the area to ride a dirt bike. Cappal testified that when she and Pascua rode the dirt bike up a hill, they saw Martins. Martins repeatedly yelled at them, "[w]hat are you guys doing? Get off of my fucking land because of the cows are starving." The land was not owned by Martins; the owner was Maui Land and Pine.

Cappal testified that she and Pascua walked the bike back to the truck at the bottom of the hill; while they were waiting for Baybado, she heard eight gunshots. Pascua testified that he and Cappal walked and rode the bike back to the truck; Pascua heard six to eight gunshots while he and Cappal were at the truck. Cappal and Pascua testified that they were scared when they heard the gunshots. Baybado testified that while he was hearing the gunshots, he was running to Pascua's truck because he was scared he "might get shot or something."

The dirt bikers stopped at a vending stand on their way out, and Doreen Nakoa (Doreen), who ran the vending stand, called the police for the dirt bikers. When Martins drove by the vending stand about fifteen minutes later, Cappal got Martins' license plate number and gave it to the police.

The police stopped Martins' vehicle by the Honolua Bay lookout shortly thereafter, and the three dirt bikers identified Martins. Martins' car was towed to the Lahaina Police Station, and the police executed a search warrant on the car the following day. From the car the police recovered a Remington pump shotgun (not in a case), live ammunition and spent cartridge casings, a leafy vegetation believed to be marijuana, and a toiletry bag containing the components of a zip gun.

Martins, 106 Hawai'i at 67-68, 101 P.3d at 675-676 (brackets in original).

2. Procedural Background

The ICA also noted the following undisputed procedural background:

... On May 19, 2000, Martins was indicted for the following offenses:

Count I, Terroristic Threatening in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 707-716(1)(d) (1993);

Count II, Reckless Endangering in the First Degree, in violation of HRS § 707-713(1) (1993);

Count III, Place to Keep [Loaded] Firearm [on a Public Highway], in violation of HRS § 134-6 (Supp.2003);

Count IV, Place to Keep Firearm, in violation of HRS § 134-6(c) (Supp.2003);

Count V, Place to Keep Firearm Ammunition, in violation of HRS § 134-6(c) (Supp.2003); and

Count VI, Promoting a Detrimental Drug in the Third Degree, in violation of HRS § 712-1249(1) (1993).

A jury found Martins guilty of the included offense of Terroristic Threatening in the Second Degree on Count I and the included offense of Reckless Endangering in the Second Degree on Count II. The jury found Martins guilty as charged on Counts III, IV, and VI. The State dismissed with prejudice Count V (Place to Keep Firearm Ammunition).

Martins was sentenced to one year of probation on each of Counts I and II, five years of probation on each of Counts III and IV, and six months of probation on Count VI, all terms to run concurrently. The circuit court imposed ninety days of jail confinement as a special term and condition of probation.

Martins, 106 Hawai'i at 62-66, 101 P.3d at 671-75 (footnotes omitted).

On March 28, 2002, Martins timely filed a notice of appeal from the circuit court's March 1, 2002 judgment, guilty conviction, and probation sentence. The ICA summarized Martins's arguments on appeal as follows:

On appeal, Martins contends (1) the evidence was insufficient to sustain his conviction for Terroristic Threatening in the Second Degree; (2) the circuit court committed plain error in failing to instruct the jury that the threat had to be unequivocal, unconditional, immediate, and specific in order to fall under the prohibitions of the terroristic threatening statute; (3) the evidence was insufficient to establish that, as to the included offense of Reckless Endangering in the Second Degree, Martins' conduct recklessly placed another in danger of death or serious bodily injury; (4) the evidence was insufficient to establish that, as to the offense of Place to Keep [Loaded] Firearm [on a Public Highway], Martins possessed or carried in a vehicle a loaded firearm; (5) the evidence was insufficient to establish that, as to the offense of Place to Keep Firearm, Martins was in a place other than his place of business, residence, or sojourn; (6) the prosecutor's misconduct during closing arguments in asserting that it was illegal to reside in one's car in this jurisdiction substantially prejudiced Martins' right to a fair trial; and (7) there was insufficient evidence to establish the offense of Place to Keep Firearm.

Martins, 106 Hawai'i at 66, 101 P.3d at 675.

In its opinion affirming the circuit court's judgment, the ICA reasoned and held, inter alia, as follows:

Martins contends the circuit court committed plain error in "failing to instruct the jury that the threat had to be unequivocal, unconditional, immediate, and specific" in order for the jury to return a guilty verdict on Terroristic Threatening Second.[⁵] Martins did not object to the jury instructions. Jury instructions to which no objection has been made at trial will be reviewed only "to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." [State v.] Sawyer, 88 Hawai'i 325,] 330, 966 P.2d [637,] 642 [(1998)]. Martins relies on language from the Hawai'i Supreme Court decision in [State v.] Chung [, 75 Haw. 398, 862 P.2d 1063 (1993),] and notes that, with respect to spoken threats, the threats must be "sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an imminent prospect of execution." 75 Haw. at 417,862 P.2d at 1073.

However, relying on its prior decision in Chung, the Hawai'i Supreme Court stated in [State v.] Valdivia [, 95 Hawai'i 465, 24 P.3d 661 (2001),] that "in a terroristic threatening prosecution, the prosecution must prove beyond a reasonable doubt that a remark threatening bodily injury is a `true threat,' such that it conveyed to the person to whom it was directed a gravity of purpose and imminent

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