State v. Scott

• Decision Date: 12 May 2011
• Docket Number: NO. 304 99,304 99
• Parties: STATE OF HAWAI'I, Plaintiff-Appellee, v. JEFFERSON JOSEPH SCOTT, Defendant-Appellant
• Court: Hawaii Court of Appeals

STATE OF HAWAI'I, Plaintiff-Appellee, v. JEFFERSON JOSEPH SCOTT, Defendant-Appellant

NO. 304 99

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

Dated: May 12, 2011

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CRIMINAL NO. 09-1-393K)

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding Judge, Reifurth and Ginoza, JJ.)

Defendant-Appellant Jefferson Joseph Scott ("Scott") appeals from the April 14, 2010 Judgment of Conviction and Sentence of the Circuit Court of the Third Circuit¹ ("Circuit Court") convicting Scott of Assault in the Third Degree in violation of section 7 07-712(1)(a), ² Hawaii Revised Statutes ("HRS") (Count 1)³; Terroristic Threatening in the Second Degree in violation of HRS §§ 707-715(1)⁴ and 707-717(1)⁵ (Count 2); andAssault in the Third Degree in violation of HRS § 707-712(1)(a) (Count 3). Scott was sentenced to one year in prison for his conviction on Count 1, one year in prison for his conviction on Count 2, and one year in prison for his conviction on Count 3; with his sentence on Count 1 to run consecutively with his sentence on Count 3, and his sentence on Count 2 to run concurrently with his sentences on Counts 1 and 3.

Scott raises four points of error on appeal relating to his conviction on Count 1, contending that the Circuit Court erred by: (1) admitting Scott's confession; (2) admitting Scott's prior testimony from the restraining order hearing; (3) including an instruction on deadly force as part of its instruction on self-defense; and (4) sentencing Scott to consecutive terms without providing specific findings, and without considering a pre-sentence investigation report. Scott concedes guilt on and does not challenge Counts 2 or 3.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we resolve Scott's appeal as follows:

(1) Scott contends that his confession was improperly admitted because both the written police advisement waiver form and his oral waiver during the interview were defective because he was not advised of the criminal offense for which he was being investigated. Scott did not raise the issue below; consequently, we examine for plain error.

It is an established principle that:

[B]efore statements stemming from custodial interrogation may be offered against a criminal defendant at trial, the State must demonstrate that law enforcement officials gave certain warnings and followed specific procedures effective to secure the privilege against self-incrimination guaranteed by both the Fifth Amendment of the United States Constitution and by article I, section 8 of our State constitution.

State v. Ramones, 69 Haw. 398, 403-05, 744 P.2d 514, 516-18 (1987) (quoting State v. Uganiza, 68 Haw. 28, 30, 702 P.2d 1352, 1354 (1985)). Furthermore, "a suspect's awareness of all the possible subjects of the police questioning is not relevant to determine whether the suspect voluntarily, knowingly, and intelligently waived his Miranda rights." Id. at 404, 744 P.2d at 517 (citing Colorado v. Spring, 479 U.S. 564, 574 (1987)) (defendant knowingly and intelligently waived Fifth Amendment privilege even though he had not been apprised of the specific charges against him because he understood his right to remain silent and that anything he said could be used against him as evidence); State v. Strong, 121 Hawai'i 513, 526-27, 221 P.3d 491, 504-05 (App. 2009) (defendant knowingly and intelligently waived Fifth Amendment privilege even though police officer had intentionally failed to list all the potential charges against defendant on waiver of rights form). "'The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege." Ramones, 69 Haw. at 405, 744 P.2d at 518 (quoting Spring, 479 U.S. at 574).

Detective Adams informed Scott of his right to remain silent, his right to counsel, that any statement he made could be used against him, and that he had the right to have an attorney present during interrogation. Before any questions were asked, Scott was advised that Detective Adams worked in the criminal investigations unit, that he was investigating the altercation between Scott and his neighbor, and that Scott had the right to stop answering Detective Adams' questions at any time. Therefore, under Strong and Ramones, Scott was adequately advised of his right against self-incrimination and the Circuit Court did not plainly err in finding that Scott's October 20, 2009 statement was voluntary and, therefore, in admitting theconfession into evidence.

(2) Scott contends that his testimony from the February 9, 2010 protective order hearing was improperly admitted because it was not offered voluntarily under HRS § 621-26.⁶ In support, Scott argues that his counsel was incompetent for allowing him to testify at the protective order hearing when Scott's criminal case for the same incident was pending, and that his counsel had a conflict of interest because he also represented Scott's brother. There was no evidence that Scott's testimony at the protective order hearing was anything but voluntary. Scott's representation at the civil proceeding does not raise any ineffectiveness of counsel or conflict of interest in this case.

(3) Scott contends that the Circuit Court erred when its self-defense instruction incorporated an instruction on deadly force, because deadly force was not supported by any evidence. Scott appears to argue that the self-defense instruction caused jurors to draw unwarranted attention to whether Scott was justified in using deadly force in response to threatened serious bodily injury, when, according to Scott, his actions did not constitute deadly force.⁷ Including reference to deadly force, according to Scott, confused the jury and contributed to Scott's conviction on Count 1.

It was not erroneous for the Circuit Court to include a "deadly force" instruction in the self-defense jury instruction. A deadly force instruction is properly included in the self-defense jury instruction when the defendant is charged with assault in the second degree. State v. Sua, No. 29500, 2010 WL1765670, at *7 (Haw. Ct. App. April 29, 2010) (deadly force instruction was properly included in self defense instruction when defendant was charged with second degree assault for punching, kicking, and stomping on CW). The amount of force used by Scott, and whether it amounted to deadly force, was a question of fact for the jury. See State v. Van Dyke, 101 Hawai'i 377, 387, 69 P.3d 88, 98 (2003) (it was error for the court to fail to instruct jury on both force and deadly force because the amount of force used was a question of fact for the jury).

Scott's contention that inclusion of the deadly force instruction may have led the jury to erroneously apply deadly force in the context of the punch (Count 1) is without merit. The jury instructions with regard to the use of force in self-protection followed the language of HRS § 703-304(1)-(2) in defining the use of "force" and "deadly force."⁸See Territory v. Legaspi, 39 Haw. 660, 668 (Haw. Terr. 1953) ("An instruction given in the wording of the statute is sufficient."). The instructions also included all the necessary definitions for the jurors to decide whether to apply the use of force instruction or the use of deadly force instruction based upon the amount of force they found Scott to have used. Therefore, the Circuit Court's self-defense instruction was not erroneous.

(4) The Circuit Court did not abuse its discretion by imposing consecutive sentences on Counts 1 and 3. State v. Sinagoga, 81 Hawai'i 421, 427-28, 918 P.2d 228, 234-35 (App. 1996), overrruled in part on other grounds by State v. Veikoso, 102 Hawai'i 219, 74 P.3d 575 (2003). Scott did not raise this issue below; consequently, we review for plain error.

Contrary to Scott's argument, State v. Hussein, 122...