State v. Rapoza
| Decision Date | 11 May 2001 |
| Docket Number | No. 22382.,22382. |
| Citation | 22 P.3d 968,95 Haw. 321 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee-Respondent, v. Wayne RAPOZA, Defendant-Appellant-Petitioner. |
| Court | Hawaii Supreme Court |
Joyce K. Matsumori-Hoshijo, on the writ, for the defendant-appellant-petitioner Wayne Rapoza.
We granted the defendant-appellant-petitioner Wayne Rapoza's application for a writ of certiorari in order to review the memorandum opinion of the Intermediate Court of Appeals (ICA) in State v. Rapoza, No. 22382 (Haw.Ct.App. Mar. 7, 2001) [hereinafter, the "ICA's opinion"]. The ICA's opinion affirmed in part and vacated in part the first circuit court's judgment of conviction of and sentence for two firearm offenses (two counts) and the offenses of attempted assault in the first degree (two counts), in violation of Hawai`i Revised Statutes (HRS) §§ 705-500 (1993)1 and 707-710 (1993),2 and reckless endangering in the first degree (one count), in violation of HRS § 707-713 (1993),3 filed on March 8, 1999.
In his application, Rapoza contends that the ICA's opinion contains two grave errors of law. First, Rapoza argues that the ICA erroneously held that the circuit court's jury instructions regarding criminal attempt liability and the conduct element of attempted first degree assault did not constitute reversible error as to counts 2 (charging attempted second degree murder) and 4 (also charging attempted second degree murder). Second, Rapoza asserts that the ICA erroneously held that the circuit court's allegedly erroneous failure to instruct the jury that it must unanimously agree on the facts constituting the requisite conduct element of the offenses charged and included within counts 2, 3 (charging attempted second degree murder), and 4, see State v. Arceo, 84 Hawai`i 1, 928 P.2d 843 (1996), was harmless beyond a reasonable doubt.
We wish to clarify the ICA's analysis regarding the circuit court's jury instructions in connection with criminal attempt liability and to correct the ICA's misapplication of Arceo, the material holding of which is simply not implicated by the facts of the present matter. Accordingly, we affirm the ICA's opinion, subject to our discussion infra. See State v. Ross, 89 Hawai`i 371, 378 n. 4, 974 P.2d 11, 18 n. 4 (1999) ().
On February 20, 1998, Rapoza discharged a firearm five to seven times in the span of a few seconds while pointing it in the general direction of (1) Manuel Galarza, (2) Manuel's wife, Louise, and (3) the Galarza's son, Brandon. ICA's opinion at 3-4. A short time before Rapoza discharged the firearm, Manuel was forced to dodge out of the way of Rapoza's vehicle as Rapoza drove out of the Galarzas' driveway.
In connection with the foregoing conduct, Rapoza was charged with seven offenses. Count 1 charged Rapoza with committing the offense of attempted first degree murder, in violation of HRS §§ 705-500 and 707-701(1)(a) (1993) (count 1), and alleged that he had attempted to murder more than one person. Counts 2, 3, 4, and 5 each accused Rapoza of attempting to commit the offense of second degree murder, in violation of HRS §§ 705-500 and 707-701.5 (1993); counts 2, 3, and 4 alleged that Rapoza attempted, respectively, to murder Manuel, Louise, and Brandon by discharging the firearm; count 5 alleged that Rapoza attempted to murder Manuel by striking him with the automobile. Counts 6 and 7 each charged a firearms offense.
Prior to trial, Rapoza pled guilty to the firearms offense charged in count 6. Subsequent to a trial on the remaining charges, a jury acquitted Rapoza of the attempted murder offenses, found him guilty of included offenses with respect to counts 2, 3, and 4, and guilty as charged of the firearms offense in count 7. Relevant to his present application, the jury found Rapoza guilty of the included offenses of attempted first degree assault, see supra notes 1 and 2, in connection with counts 2 (Manuel) and 4 (Brandon) and first degree reckless endangering, see supra note 3, in connection with count 3 (Louise). The ICA subsequently vacated Rapoza's conviction of and sentence for attempted first degree assault as to Brandon.4
With regard to criminal attempt liability, the circuit court, without objection from Rapoza, generally instructed the jury as follows:
(Emphasis added.) The circuit court repeated the instruction contained in the final paragraph quoted above (hereinafter, the "strongly corroborative instruction") four times. With regard to count 1, however, the circuit court, over Rapoza's objection,5 interwove the strongly corroborative instruction into its instruction regarding the charged offense of attempted first degree murder, specifically tailoring it to the charge as follows: "[c]onduct shall not be considered a substantial step unless it is strongly corroborative of the defendant's intent to commit Murder in the First Degree."6 After instructing the jury that, if it acquitted Rapoza of attempted first degree murder as charged in count 1, it could then consider the charges contained in counts 2, 3, 4, and 5, the circuit court, without objection from Rapoza, again instructed the jury that "[c]onduct shall not be considered a substantial step unless it is strongly corroborative of the defendant's intent to commit Murder in the Second Degree, which is intentionally or knowingly causing the death of another person." Finally, the circuit court, over Rapoza's objection, but see supra note 5, included the strongly corroborative instruction, tailored to each offense, in its jury instructions regarding attempted first and second degree assault, as offenses included within attempted second degree murder, as charged in count 2. However, over Rapoza's objection, but see supra note 5, the circuit court did not include the strongly corroborative instruction in its subsequent instructions regarding the attempt offenses charged and included in counts 3, 4, and 5. During deliberations, the jury posed the following question to the circuit court: "What is the definition of `strongly corroborative'?" Without objection from Rapoza, the circuit court responded that the jury had "received all of the evidence in this case" and referred the jury to the court's written instructions.
With regard to unanimity, Rapoza did not request, and the circuit court did not give, any specific instruction modeled after this court's holding in Arceo. However, the circuit court generally instructed the jury that its verdict as to any given count must be unanimous.
On appeal, Rapoza asserted, inter alia, that the circuit court's jury instructions regarding criminal attempt liability and the conduct element of the charged and included attempt offenses constituted reversible error and that the circuit court had plainly erred in failing to give a jury instruction modeled after this court's holding in Arceo; Rapoza specifically argued that the circuit court's failure to give the strongly corroborative instruction when instructing the jury regarding the elements of the attempt offenses charged and included in count 4, where the circuit court had given the strongly corroborative instruction with respect to the attempt offenses charged and included in count 2, rendered the circuit court's instructions as a whole "prejudicially confusing." Rapoza also argued that the circuit court erred in not "meshing" the strongly corroborative instruction into its instructions regarding the conduct elements of each charged and included attempt offense. Similarly, Rapoza argued that the circuit court erred in instructing the jury with respect to the included offenses of attempted first and second degree assault as to counts 2 and 4 because it had not instructed that "[a] person commits the offense ... if he intentionally engaged in conduct which, under the circumstances as he believes them to be [,] is a substantial step in [a] course of conduct intended or known to cause" the result required by each offense. (Emphasis in original.) Indeed, the circuit court omitted the underscored phrase from its instructions. Finally, Rapoza argued on appeal that the circuit court plainly erred in failing to instruct the jury that it must "unanimously agree on which act constituted the conduct element" requisite to the offenses charged and included within counts 2, 3, and 4 because the testimony adduced from the prosecution's witnesses "presented [the jury] with six different versions of Rapoza's conduct during the shooting incident."
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