State v. Pimentel

• Decision Date: 14 November 1979
• Docket Number: No. 7075,7075
• Citation: 61 Haw. 308,603 P.2d 141
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Nicholas PIMENTEL, also known as Nicholas Jaime Delgado, Jaime Nicholas Delgado and Nick, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 141

603 P.2d 141

61 Haw. 308

STATE of Hawaii, Plaintiff-Appellee, v. Nicholas PIMENTEL, also known as Nicholas Jaime Delgado Jaime Nicholas Delgado and Nick, Defendant-Appellant.

No. 7075.

Supreme Court of Hawai'i.

Nov. 14, 1979.

Syllabus by the Court

1. The Due Process Clause of the Fourteenth Amendment requires that the state prove every material element of a criminal offense beyond a reasonable doubt.

2. Absent a clarifying instruction concerning the permissive nature of the inference contained therein, a jury instruction which shifts the burden of proof to the defendant on a material element of the crime charged does not comport with due process of law.

Rodney Maile, Deputy Public Defender, Honolulu (on the briefs), for defendant-appellant.

Lawrence White, Deputy Pros. Atty., Honolulu (on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., KOBAYASHI, Retired Justice and LUM, Circuit Judge, assigned by reason of vacancies.

PER CURIAM.

Defendant-appellant, Nicholas Pimental (hereinafter appellant), was charged in an indictment with the commission of two counts of promoting a dangerous drug in the second degree, in that he knowingly distributed on two separate days the dangerous drug heroin in violation of HRS § 712-1242(1)(c) (1976). ¹ Upon his plea of not guilty, he was tried before a jury. At the conclusion of the testimony, the trial judge gave an instruction to the jury, over the objection of appellant's counsel, in language as follows:

In this case the defendant is charged with two counts of the criminal offense of Promoting a Dangerous Drug in the Second Degree.

A person commits the offense of Promoting a Dangerous Drug in the Second Degree if he knowingly distributes heroin.

There are three material elements in each of these offenses which must be proven by the Prosecution beyond a reasonable doubt. If it has done so, you are to convict, and if it has not done so, you are to acquit. The three material elements are:

1. Was the substance involved heroin?

2. Did the defendant distribute the heroin? To distribute means to sell, transfer, give or deliver to another.

3. Did the defendant know that the substance which he distributed was heroin? If the substance distributed is proven to be heroin, such a finding is sufficient for the jury to find that the defendant knew the character and nature of the substance which he distributed.

The above-quoted instruction was offered by the State and was given to the jury as State's Instruction No. 1. The appellant objected to the last sentence of the final paragraph of the instruction on two grounds. First, the jury was allowed to impute appellant's knowledge solely on the basis of a chemical analysis of the substance showing it to be heroin. Second, the wording of the instruction was ambiguous in that the jury could have believed that it must find that if the substance distributed was heroin, then the appellant knew it was heroin. There was no clear indication in State's Instruction No. 1, or in any other instruction given to the jury, that such a finding was permissive, not mandatory.

On April 18, 1978, the jury found the appellant guilty of both counts of promoting a dangerous drug, and he was sentenced to two ten year concurrent prison sentences and the payment of restitution. We reverse.

The issue upon appeal is whether the State's Instruction No. 1, could have been interpreted by a reasonable juror to allow appellant's knowledge to be inferred from proof of the nature of the substance, or whether the instruction impermissibly shifted the burden of proof of a material element of the offense to the appellant, thereby depriving him of due process of law in his conviction.

The Hawaii Penal Code in HRS § 702-204 (1976) provides that "a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense." The code then defines each of these states of mind in HRS § 702-206 (1976), and "knowingly" is defined as:

(2) "Knowingly."

(a) A person acts knowingly with respect to his conduct when he is aware that his conduct is of that nature.

(b) A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.

(c) A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

The appellant's knowledge that the substance he distributed was heroin was a material element of the crime of Promoting a Dangerous Drug in the Second Degree. HRS § 712-1242(1)(c) (1976). As the Due Process Clause of the Fourteenth Amendment requires that the state prove every element of a criminal offense beyond a reasonable doubt, the state in the instant case bore the burden of so proving the appellant's knowledge. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979); Taylor v. Kentucky, 436 U.S. 478, 485-86, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Moore v. United States, 429 U.S. 20, 22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976); Mullaney v. Wilbur, 421 U.S. 684, 701, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Hughes v. Mathews, 576 F.2d 1250, 1255 (7th Cir. 1978); State v Napeahi, 57 Haw. 365, 377, 556 P.2d 569, 577 (1976).

In our opinion, State's Instruction No. 1 required the jury to find the appellant knew the substance was heroin upon a showing by the prosecution that chemical analysis proved it to be heroin. The burden of proof then shifted to the appellant to show that he had no knowledge that the substance involved was heroin. The state was not forced to prove beyond a reasonable...