State v. Nakamura

• Citation: 65 Haw. 74,648 P.2d 183
• Decision Date: 01 July 1982
• Docket Number: No. 7823,7823
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Dennis M. NAKAMURA, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 183

648 P.2d 183

65 Haw. 74

STATE of Hawaii, Plaintiff-Appellee, v. Dennis M. NAKAMURA, Defendant-Appellant.

No. 7823.

Supreme Court of Hawai'i.

July 1, 1982.

Reconsideration Denied July 21, 1982.

Syllabus by the Court

1. When an accused can show, by a preponderance of the evidence, that he had been so induced or encouraged into committing the conduct proscribed, he is entitled to acquittal on the charge. HRS § 702-237 (1976).

2. Under the "objective view" to entrapment, the trier of fact is required to focus exclusively on the conduct of the law enforcement officials and must disregard any predisposition of the accused to commit the offense charged.

3. The test to determine whether the accused had been entrapped is whether the conduct of the law enforcement officials had been so extreme that it created a substantial risk that persons not ready to commit the offense alleged would be induced to commit it.

4. The trial court must correctly instruct the jury on the law. This requirement is mandatory to insure the jury has proper guidance in its consideration of the issues before it.

5. Where a given proposition of law is requested to be given in an instruction, the instruction may properly be refused where the same proposition is adequately covered in another instruction that is given.

6. On appeal, instructions must be considered in their entirety to determine whether error was committed.

7. The trial court is vested with discretion regarding the admissibility of evidence at trial and such a decision will not be reversed absent an abuse.

8. Evidence is relevant if it tends to prove a fact in controversy or renders a matter in issue more or less probable.

9. Essential to the introduction of real evidence, as a foundational requirement, is that a sufficient chain of custody be established. However, on appeal, unless the decision to admit evidence over a chain of custody objection constitutes a clear abuse of discretion, it will not be overturned.

10. It is not necessary to negate all possibilities of tampering with an exhibit in order to admit such exhibit into evidence it is sufficient to establish only that it is reasonably certain that no tampering took place, with any doubt going to the weight of the evidence.

Christopher D. Ferrara, Honolulu (Robinson & Ferrara, Honolulu, of counsel), for defendant-appellant.

Duffy J. Mendonca, Deputy Pros. Atty., City & County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, assigned by reason of vacancies.

OGATA, Justice.

This is an appeal brought by Defendant-Appellant, Dennis Minoru Nakamura (hereinafter "appellant"), from his conviction following a jury trial in the Circuit Court of the First Circuit, for the offense of Promoting a Dangerous Drug in the Second Degree, in violation of HRS § 712-1242 (1976). For the reasons set out below, we affirm.

I.

The instant case against appellant arose from an incident occurring on March 14, 1979 in the City and County of Honolulu. On that date, appellant purportedly distributed a quantity of methadone, defined as a dangerous drug under HRS § 712-1240(1)(1976) and our Uniform Controlled Substances Act, HRS Chapter 329, to an undercover government investigator. ¹ Thereafter, on July 3, 1979, appellant was charged with promoting a dangerous drug in the second degree. Trial commenced in the circuit court on November 1, 1979. At trial, appellant argued that, by the actions of the undercover officer, he had been induced to commit the offense charged. Notwithstanding his entrapment claim, appellant was found guilty as charged. Consequently, judgment was entered by the court on April 3, 1980. This appeal followed.

In seeking a reversal of his conviction, appellant here contends: First, that the trial court erred in refusing to give certain of his requested instructions concerning the entrapment defense; second, that the trial court improperly denied him the opportunity to testify about the motive of the undercover officer in effecting his arrest; and third, that the trial court improperly admitted into evidence the methadone recovered for failure by the State to establish a sufficient evidentiary chain of custody.

II.

HRS § 702-237 (1976) reads, in parts relevant to this appeal:

§ 702-237. Entrapment. (1) In any prosecution, it is an affirmative defense that the defendant engaged in the prohibited conduct or caused the prohibited result because he was induced or encouraged to do so by a law enforcement officer, or by a person acting in cooperation with a law enforcement officer, who, for the purpose of obtaining evidence of the commission of an offense, either:

(b) Employed methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it.

This section makes clear, that when the accused in a criminal prosecution can show, by a preponderance of the evidence, that he had been entrapped into committing the conduct proscribed, he is entitled to acquittal on the charge against him. State v. Anderson, 58 Haw. 479, 572 P.2d 159 (1977); State v. Kelsey, 58 Haw. 234, 566 P.2d 1370 (1977). In determining whether the accused had been indeed entrapped, i.e., so "induced or encouraged" to commit the offense, we have required that the trier of fact focus exclusively upon the conduct of the law enforcement official while disregarding any predisposition on the part of the accused. State v. Provard, 63 Haw. 536, 631 P.2d 181 (1981); State v. Anderson, supra. Termed the "objective view" to entrapment, we stated in Anderson :

Under the objective view, the focus of inquiry is not on the predisposition of the defendant to commit the crime charged, but rather is on the conduct of the law enforcement officials ....

.... The language of the section allows for a strictly objective inquiry into the entrapment issue. The main concern is whether the conduct of the police or other law enforcement officials was so extreme that it created a substantial risk that persons not ready to commit the offense alleged would be persuaded or induced to commit it. The focus is on the police conduct and its probable effect on a 'reasonable person.' No attention is directed toward the state of mind of the particular defendant in determining the entrapment issue.

Id. at 483-484, 572 P.2d at 162.

Given the foregoing state of the law, appellant contends that the trial court erred in refusing to give his requested instructions Nos. 6 and 8, pertaining to the entrapment defense. ² He argues that the instructions ultimately given by the court, without benefit of the requested instructions, were unclear and could have conceivably misled the jury to his prejudice. ³ Specifically, he alleges that the jury was not clearly instructed on the proper weight to be given any evidence of appellant's predisposition to commit the offense.

"It is well settled that the trial court must correctly instruct the jury on the law .... This requirement is mandatory to insure the jury has proper guidance in its consideration of the issues before it." State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980). In addition, we are mindful that "(o)n appeal, instructions must be considered in their entirety to determine whether error was committed." Id. at 641, 618 P.2d at 309.

Having reviewed the instructions given by the trial court, we find no misstatement or ambiguity as to the standard to be applied. We realize that, for the most part, instructions should not merely parrot the language of the statute. State v. Nuetzel, 61 Haw. 531, 551, 606 P.2d 920, 932 (1980). However, far from simply repeating the terms of HRS § 702-237 (1976), the given instructions fully apprised the jury, in language easily understandable, of the law to be applied in its deliberation.

Moreover, as we have often times stated in the past, "where a given proposition of law is requested to be given in an instruction, the instruction may properly be refused where the same proposition is adequately covered in another instruction that is given." State v. Stuart, 51 Haw. 656, 660-661, 466 P.2d 444, 447 (1970). See State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); State v. Faafiti, 54 Haw. 637, 513 P.2d 697 (1973). We find that this is the case here. We observe that the substance of appellant's requested Instructions Nos. 6 and 8 concerning appellant's predisposition to commit the offense is adequately covered in the trial court's instruction.

Consequently, we conclude that the trial court did not err in refusing to give the requested instructions in question.

III.

At trial, appellant attempted to testify about a purported meeting between himself and Agent Madinger occurring approximately two months after his arrest. The State objected to the admission of this testimony on relevancy grounds. In his offer of proof, appellant argued that the offered testimony would reveal the motive and design of Agent Madinger in singling him out for arrest. ⁴ He asserted that this testimony would be crucial in establishing his entrapment defense. The court apparently found this unpersuasive and consequently sustained the State's objection. Appellant contends that this constituted reversible error by the court. Upon a review of the record, we do not agree.

"It is well settled that the trial court is vested with discretion regarding the admissibility of evidence at trial and such a decision will not be reversed absent an abuse." State v. O'Daniel, 62 Haw. 518, 527, 616 P.2d 1383, 1390 (1980). Moreover, "even where error occurs, there will be no reversal where on the record as a whole, no prejudice to appellant has resulted.... Where there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt, errors in the admission or exclusion of evidence are deemed harmless." (...