State v. Miyashiro, 21090.
| Decision Date | 24 May 1999 |
| Docket Number | No. 21090.,21090. |
| Citation | 979 P.2d 85,90 Haw. 489 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Kenneth K. MIYASHIRO, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Jeff Arakaki, (Walter R. Schoettle, Honolulu, on the brief), for defendant-appellant.
Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellee.
Defendant-Appellant Kenneth K. Miyashiro (Defendant) appeals from the Judgment of the Circuit Court of the First Circuit (the circuit court) entered on September 26, 1997, following a July 14, 1997 jury verdict convicting him of: two counts of Promoting a Dangerous Drug in the Second Degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1242(1)(c) (1993)1 (Counts I and II); one count of Promoting a Dangerous Drug in the First Degree, in violation of HRS § 712-1241(1)(b)(ii)(A) (1993)2 (Count III); one count of Promoting a Dangerous Drug in the Third Degree, in violation of HRS § 712-1243 (1993)3 (Count IV); one count of Unlawful Use of Drug Paraphernalia, in violation of HRS § 329-43.5(a) (1993)4 (Count V); and one count of Possession of a Firearm by a Person Convicted of Certain Crimes, in violation of HRS § 134-7(b) and (h) (Supp. 1998)5 (Count VI).
Defendant argues that the circuit court reversibly erred in: (1) excluding evidence offered to explain the facts and circumstances of his prior felony conviction and his reason for pleading guilty to the prior felony; and (2) responding affirmatively to the following question posed by the jury:
While we disagree with Defendant's arguments, we conclude that the circuit court's response to the jury's question may have misled the jurors into believing that they were required to return a verdict of guilty if they could not unanimously agree on the entrapment defense. Accordingly, we vacate that part of the September 26, 1997 Judgment that convicted and sentenced Defendant on Counts I, II, and III and remand for a new trial as to those counts. In all other respects, the Judgment is affirmed.
In January 1995, Officer Michael Tsuda (Officer Tsuda) and other officers from the Honolulu Police Department were assigned to investigate an anonymous complaint that a person named Alvin Chun (Chun) was dealing narcotics out of his residence in Waipahu and that Chun's two narcotics suppliers were Joe Valenti and a male identified as "Kenji." After doing a little surveillance work, Officer Tsuda determined that Defendant was "Kenji."
Officer Tsuda testified that he subsequently arranged, through recorded telephone conversations, to purchase narcotics from Defendant on three separate occasions. On February 10, 1995, Officer Tsuda arranged to buy one-half gram of narcotics for $100. On February 14, 1995, Officer Tsuda arranged to purchase one gram of narcotics for $180. On each of these occasions, Officer Tsuda drove to Defendant's residence, parked his unmarked car with the driver's side facing the residence, and called out, "Kenji." Thereafter, Defendant walked over to Officer Tsuda's car, counted the pre-recorded money provided by Officer Tsuda, and handed Officer Tsuda a bindle of crystal methamphetamine. On February 22, 1995, Officer Tsuda called Defendant to arrange a purchase of an "eight ball" (one-eighth ounce of narcotics) for $1,100. On February 23, 1995, after reconfirming the purchase, Officer Tsuda arrived at Defendant's residence for the third drug buy. Defendant invited Officer Tsuda into the residence and explained that "the stuff" had not yet arrived. After unsuccessfully trying to contact one source, Defendant took $1,100 from Officer Tsuda, left the house in a pick-up truck, and returned about ten minutes later with two plastic packets containing a crystal-like substance. Defendant removed about one-half gram for himself and handed the rest to Officer Tsuda.
On March 1, 1995, as a result of the foregoing drug buys, police officers arrested Defendant for possession of dangerous drugs. The police officers also executed a search warrant that they had obtained for Defendant's person, truck, and residence. The search of Defendant's residence resulted in the recovery of a glass pipe containing a milky white substance, a scale, a propane torch, and a rifle. No drugs, other than the "milky white residue" found in the glass pipe, later identified as crystal methamphetamine, were recovered. None of the pre-recorded money used in the three transactions was recovered, and no records or other evidence of drug dealing were found.
Defendant was thereafter offered a plea agreement: In exchange for a reduction of the charges against him, Defendant would cooperate with police and "provide information." Defendant indicated that he wished to confer with a public defender about the plea agreement and Officer Tsuda allowed Defendant some time to do so. However, when Defendant failed to contact Officer Tsuda about Defendant's decision on the plea agreement, Officer Tsuda concluded that Defendant was unreliable.
On February 18, 1997, a grand jury indicted Defendant on the six counts for which Defendant was ultimately convicted. Trial commenced on July 7, 1997.
Defendant's defense at trial was entrapment. Defendant testified that he initially met Officer Tsuda two to five days prior to the first drug buy on February 10, 1995. According to Defendant, Officer Tsuda drove up to Defendant's residence and called out two or three times from the street, "Kenji, Kenji." Defendant went out to investigate who was calling him but did not recognize Officer Tsuda. Officer Tsuda stated that he was "Al Chun's good friend" and worked with Chun. Officer Tsuda also represented that Chun "did not have anything so Chun told Officer Tsuda to ask Defendant if Officer Tsuda had something." Defendant informed Officer Tsuda that he didn't "solicit,... just share among ourselves." However, because Chun had previously done a favor for Defendant and Officer Tsuda kept insisting that he and Defendant had met before, Defendant eventually facilitated the sale to Officer Tsuda. Defendant stated that he would not have engaged in the February 10, 14, and 23, 1995 transactions if he had not met Officer Tsuda prior to February 10, 1995. Officer Tsuda denied ever meeting Defendant before February 10, 1995 or purchasing narcotics in an unrecorded sale from Defendant.
On July 14, 1997, a jury found Defendant guilty and convicted him of all six charges. On September 26, 1997, judgment was filed and Defendant was sentenced to concurrent terms of five years' probation for Counts I, II, IV, V, and VI and ten years' probation for Count III. A timely notice of appeal was filed on October 27, 1997.
Where the evidentiary ruling at issue concerns admissibility based on relevance, under Hawai`i Rules of Evidence (HRE) Rules 401 and 402, the proper standard of appellate review is the right/wrong standard.
State v. Richie, 88 Hawai`i 19, 36-37, 960 P.2d 1227, 1244-45 (1998) (brackets, internal quotation marks, and footnote omitted) (quoting State v. Arceo, 84 Hawai`i 1, 11, 928 P.2d 843, 853 (1996)).
"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. Cullen, 86 Hawai`i 1, 8, 946 P.2d 955, 962 (1997) (internal quotation marks omitted) (quoting State v. Kinnane, 79 Hawai`i 46, 49, 897 P.2d 973, 976 (1995)). Because the circuit court's response to a jury communication is the functional equivalent of an instruction, the standard of review for jury instructions also applies to reviewing a trial court's answers to jury communications.
"We may recognize plain error when the error committed affects substantial rights of the defendant." Cullen, 86 Hawai`i at 8, 946 P.2d at 962 (quoting Arceo, 84 Hawai`i at 33, 928 P.2d at 875).
Count VI of the grand jury indictment charged Defendant with Possession of a Firearm by a Person Convicted of Certain Crimes, in violation of HRS § 134-7(b) and (h) (), which provides, in relevant part, as follows:
In order to establish that Defendant had committed the foregoing offense, Plaintiff-Appellee State of Hawai`i (the State) was required to prove, beyond a reasonable doubt, that Defendant "had been convicted in this state or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug." HRS § 134-7(b); see also State v. Buffalo, 4 Haw.App. 646, 648, 674 P.2d 1014, 1017 (1983), cert. denied, 67 Haw. 686, 744 P.2d 781 (1984). To establish this element, the State called James Wilbur May, a probation officer for the First Circuit Court, who testified that he had supervised Defendant for about six months while Defendant was on probation following his conviction on three counts of Theft in the First Degree and one count of Theft in the Second Degree. Theft in the first degree is a class B felony, HRS § 708-830.5 (1993), and theft in the second degree...
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