State v. Olivera

• Decision Date: 28 October 1976
• Docket Number: 5833 and 5834,5832,Nos. 5831,s. 5831
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Kenneth Joseph OLIVERA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1199

555 P.2d 1199

57 Haw. 339

STATE of Hawaii, Plaintiff-Appellee, v. Kenneth Joseph OLIVERA, Defendant-Appellant.

Nos. 5831, 5832, 5833 and 5834.

Supreme Court of Hawai'i.

Oct. 28, 1976.

Syllabus by the Court

1. Where the trial court, in instructing the jury, attempts to define the term 'reasonable doubt' such attempt is not in itself reversible error and the question on appeal is whether the instructions correctly conveyed the concept of reasonable doubt to the jury.

2. Where the trial court's instructions to the jury stated, in part, that a reasonable doubt may arise not only from the evidence produced but also from a lack of evidence, the possibility that the jury might, under this instruction, have considered appellant's failure to produce evidence as erasing any reasonable doubt which they might otherwise have seen is insubstantial and the instruction was not in error.

3. Where a card bearing inked fingerprints was admitted in evidence upon the testimony of a police officer that the prints were those of appellant which had been taken by the officer and that the card was, at the trial, in the same condition as when the officer had finished taking the prints, the fact that the card was delivered to and retained by the officer's superiors for an unstated period of time is not sufficient, in the absence of any evidence of tampering, to require imposition of the precautionary requirement of proof of a chain of custody.

4. Appellant's request, in a prosecution under HRS § 134-7 for possession of a firearm by one convicted of a felony, for a bifurcated trial in which the jury would first determine whether the appellant possessed a firearm, then inquire into appellant's prior conviction and return a verdict of guilty or not guilty, was properly refused because appellant's prior conviction was an element of the offense charged which should be pleaded and proved in the prosecution's case in chief in a one stage proceeding.

Steven K. Christensen, Hilo, for defendant-appellant.

Douglas L. Halsted, Deputy Prosecuting Atty., County of Hawaii, Hilo, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

In these four cases, which were not consolidated, Appellant appeals from convictions as follows: in No. 5831, theft in the first degree; in No. 5832, burglary in the second degree; in No. 5833, theft in the first degree and two counts of burglary in the second degree; and in No. 5834, possession of a firearm by a person convicted of a crime of violence. All of the appeals were submitted on the briefs, without oral argument. We affirm in all cases. Certain of the contentions raised on appeal, while not sustained, warrant discussion and are dealt with below. We have also considered the remainder of Appellant's contentions and have found them without merit.

I

In each of No. 5832, No. 5833 and No. 5834, over Appellant's objection, the trial court instructed the jury as follows: ¹

The burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every material element of the crime charged, and a defendant has the right to rely upon a failure of the prosecution to establish such proof.

Bear in mind, however, that the law does not require that degree of proof which, excluding all possibility of error, produces absolute certainty, for such degree of proof is rarely possible.

What is a reasonable doubt?

A reasonable doubt is a doubt founded upon reason and common sense and arising from the state of the evidence.

A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence.

The real question is whether after hearing the evidence and from the evidence you have or have not an abiding belief, amounting to a moral certainty that the defendant is guilty and that all of the material elements of the offense charged in the indictment have been proved. If you have such a belief so formed, the State has discharged its burden of proof and it is your duty to convict, and if you have not such a belief so formed, it is your duty to acquit.

Appellant contends here that it was error for the trial court to attempt any definition of the term 'reasonable doubt', and in any event the instruction that a reasonable doubt may arise from a lack of evidence was error in its failure to limit the jury's consideration to a lack of evidence on the part of the State and thus to negate the possibility that the jury would consider that doubt had been created by the Appellant's failure to produce evidence.

The difficulties faced in formulating a satisfactory definition of 'reasonable doubt' have led to the growth of a respectable body of opinion which holds that it is better to leave the term undefined in charging the jury. Decisions in Wyoming and Oklahoma appear to treat any attempt to define the term in jury instructions as error. ² We are aware, also, of decisions in which other appellate courts have indicated that it is undesirable, or at least unnecessary, for the trial court to attempt to define reasonable doubt, although such attempts do not necessarily lead to reversible error. ³ On the other hand, the decisions in a much greater number of jurisdictions, including the federal courts, support the practice of providing the jury in a criminal case with the assistance of some definition of the standard of reasonable doubt which they are to apply in determining the guilt of the defendant. ⁴ We are not persuaded that it should be held to be error for the Hawaii courts to follow this practice. Whatever doubts may be entertained as to the necessity or advisability of attempting to explain the term to the jury, the question on appeal is whether 'the instructions correctly conveyed the concept of reasonable doubt to the jury.' Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed 150 (1954); Bernstein v. United States, 234 F.2d 475 (5th Cir. 1956); United States v. Leaphart, 513 F.2d 747 (10th Cir. 1975); Wright, Federal Practice & Procedure, Crim. § 500 (1969).

That portion of the instruction before us which commences in the 11th line, following the question, was approved by us in State v. Stuart, 51 Haw. 656, 466 P.2d 444 (1970). We are satisfied that the entire instruction correctly charged the jury and that it conforms to the standards applied in all of the decisions we have examined, other than those which wholly reject any attempt at definition of reasonable doubt, with only the exception we now mention. The Iowa courts, in recent decisions, have held that an instruction to the effect that a reasonable doubt may arise from a lack of evidence, without going on to make it clear that it is only a lack of evidence offered by the State which is meant, is fatally defective because the jury might infer an obligation on the part of the defendant to produce evidence. State v. Hansen, 225 N.W.2d 343 (Iowa 1975). A need to advise the jury that reasonable doubt may arise from a lack of evidence has been seen by a number of courts. E. g., Laughlin v. U. S., 128 U.S.App.D.C. 27, 385 F.2d 287 (1967); Annotation: Failure of instruction on reasonable doubt to include phrase 'lack of evidence' or equivalent as reversible error, 67 A.L.R. 1372 (1930). However, no jurisdiction other than Iowa, to our knowledge, has held that there must be further particularization of the attention which the jury is instructed to give to the evidence. By the instruction before us, the jury was expressly charged that the defendant had the right to rely upon a failure of the prosecution to establish proof beyond a reasonable doubt of every material element of the crime charged, and that a reasonable doubt may arise from a lack of evidence. The possibility that the jury might, under this instruction, have considered Appellant's failure to produce evidence as erasing any reasonable doubt which might otherwise have been seen by the jury appears to us to be insubstantial at most. We do not accept the rationale of the Iowa rule, and find no error in the instruction as given.

II

In No. 5832, a card bearing inked fingerprints was admitted in evidence, over Appellant's objection, upon the testimony of a police officer that the prints were those of Appellant which had been taken by the officer and that the card was in the same condition as when he had finished taking the prints. Appellant's objection was premised on the officer's testimony that the card had been delivered to and retained by his superior for an unstated period, and that he did not known with what security it had been kept. Appellant argues that a proper foundation for the admission of the card was not laid, in that the card had passed through several hands and its proper custody at all times was not established.

Where the exhibit is a drug or chemical in the form of a powder or liquid which is readily susceptible of adulteration or substitution, the courts tend to be strict in requiring that a chain of custody be established which minimizes the possibility of any tampering with the exhibit. Jones v. State, 260 Ind. 463, 296 N.E.2d 407 (1973). On the other hand, where the exhibit was an object which was positively identified and where its unchanged condition was established by direct testimony or was not significant, the requirement of proof of a chain of custody has not been applied. State v. Coleman, 441 S.W.2d 46 (Mo.1969); State v. Huffman, 181 Neb. 356, 148 N.W.2d 321 (1967); State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969); Annotation: Evidence-Specimen from Human Body, 21 A.L.R.2d 1216 (1952); McCormick, Evidence 527-528 (2d ed. 1972). Fingerprint records have been treated as objects which are not readily alterable and which are to be admitted on direct evidence of their unchanged condition without imposing the precautionary requirement of a chain of custody, at least in the absence of any affirmative evidence indicating a likelihood that tampering took place. ...