State v. Martins

• Decision Date: 14 October 2004
• Docket Number: No. 25021.,25021.
• Citation: 101 P.3d 671,106 Haw. 62
• Parties: STATE of Hawai'i, Plaintiff-Appellee, v. Mark Alan MARTINS, Defendant-Appellant.
• Court: Hawaii Court of Appeals

101 P.3d 671

106 Haw. 62

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

No. 25021.

Intermediate Court of Appeals of Hawai'i.

October 14, 2004.

As Amended October 19, 2004.

Certiorari Granted November 23, 2004.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, On the briefs, for defendant-appellant.

Simone C. Polak, Deputy Prosecuting Attorney, County of Maui, On the briefs, for plaintiff-appellee.

LIM and FOLEY, JJ.; and WATANABE, Acting C.J., Concurring in part and Dissenting in part.

Opinion of the Court by FOLEY, J.

Defendant-Appellant Mark Alan Martins (Martins) appeals from the March 1, 2002 Judgment of the Circuit Court of the Second Circuit (circuit court).¹ 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);²

Count II, Reckless Endangering in the First Degree, in violation of HRS § 707-713(1) (1993);³

Count III, Place to Keep [Loaded] Firearm [on a Public Highway], in violation of HRS § 134-6 (Supp.2003);⁴ 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).⁵

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.

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.

I.

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 Nakalele 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.

II.

A. Jury Instructions/Plain Error

As a general rule, jury instructions to which no objection has been made at trial will be reviewed only for plain error.... [T]his Court will apply the plain error standard of review 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) (citations omitted).

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. If the instructions requested by the parties are inaccurate or incomplete but are necessary in order for the jury to have a clear and correct understanding of what it is that they are to decide, then the trial court has the duty either to correct any defects or to fashion its own instructions.

Nevertheless, the trial court is not required to instruct the jury in the exact words of the applicable statute but to present the jury with an understandable instruction that aids the jury in applying that law to the facts of the case. Erroneous 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. If that standard is met, however, the fact that a particular instruction or isolated paragraph may be objectionable, as inaccurate or misleading, will not constitute ground for reversal. Whether a jury instruction accurately sets forth the relevant law is a question that this court reviews de novo.

Furthermore, error 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 may have contributed to conviction.

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.

State v. Vanstory, 91 Hawai'i 33, 42-43, 979 P.2d 1059, 1068-69 (1999) (internal quotation marks, citations, and brackets omitted; block quote format changed).

B. Sufficiency of Evidence

We review the sufficiency of evidence on appeal as follows:

[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.

State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (quoting State v. Quitog, 85 Hawai'i 128, 145, 938 P.2d 559, 576 (1997)). "`Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Richie, 88 Hawai'i at 33, 960 P.2d at 1241 (internal quotation marks and citation omitted).

C. Plain Error/Rule 52(b)

Hawai'i Rules of Penal Procedure Rule 52(b) states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Therefore, an appellate court "may recognize plain error when the error committed affects substantial rights of the defendant." State v. Staley, 91 Hawai'i 275, 282, 982 P.2d 904, 911 (1999) (internal quotation marks and citation omitted).

The appellate court "will apply the plain error standard of review 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." Vanstory, 91 Hawai'i at 42, 979 P.2d at 1068 (internal quotation marks and citation omitted).

This 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 or her counsel for protection and bear the cost of counsel's mistakes.

Id. (q...