State v. Tucker

• Decision Date: 01 September 1993
• Docket Number: Nos. 15255,15264,s. 15255
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Elena Louise TUCKER, Defendant-Appellant, and Glenn Edward Tucker, Sr., Defendant. STATE of Hawaii, Plaintiff-Appellee, v. Glenn Edward TUCKER, Sr., Defendant-Appellant, and Elena Louise Tucker, Defendant.
• Court: Hawaii Court of Appeals

Page 37

861 P.2d 37

10 Haw.App. 73

STATE of Hawaii, Plaintiff-Appellee, v. Elena Louise TUCKER, Defendant-Appellant, and Glenn Edward Tucker, Sr., Defendant.

STATE of Hawaii, Plaintiff-Appellee, v. Glenn Edward TUCKER, Sr., Defendant-Appellant, and Elena Louise Tucker, Defendant.

Nos. 15255, 15264.

Intermediate Court of Appeals of Hawai'i.

Sept. 1, 1993.

Order Denying Reconsideration

Sept. 22, 1993.

Certiorari Denied Oct. 14, 1993.

Order Denying Reconsideration

Oct. 29, 1993.

Syllabus by the Court

1. On appeal, jury instructions are read and considered as a whole, to determine whether they are prejudicially insufficient, erroneous, inconsistent, or misleading.

2. In determining whether an instruction is warranted by the evidence, the court does not pass on the weight and sufficiency of the evidence. It is not error to submit an instruction covering a theory advanced by a party if there is any evidence on which to base it, although it may be slight and inconclusive, or opposed to the preponderance of the evidence.

3. The plain language of HRS § 702-222 imposes no requirement that a joint legal duty exist before accomplice liability is imposed. Moreover, accomplice liability may exist where a parent fails to stop mistreatment of, or fails to seek medical care for his or her child.

4. Where a parent fails to stop mistreatment of, or fails to seek medical care for, his or her child, resulting in the child's death, a jury can consider such failure, along with other circumstances, and conclude that the parent was a knowing accomplice to the child's murder.

5. A trial court's decision regarding the admissibility of "other crimes, wrongs, or acts" is considered on appeal under the abuse of discretion standard of review. Generally, to constitute an abuse, it must appear that the court clearly exceeded the bounds of reason or disregarded the rules or principles of law or practice to the substantial detriment of a party litigant.

6. Determining whether evidence of other crimes, wrongs or acts is admissible into evidence pursuant to HRE Rule 404(b) involves a two-step analysis. First, the trial court must determine if the evidence is relevant and probative of any fact other than the defendant's propensity to commit the crime charged that is of consequence to the determination of the action. For example, evidence of prior crimes is admissible to show motive or intent. If the evidence is determined to be relevant and probative, the court must then balance the probative value of the evidence against its prejudicial impact. In weighing the probative value of otherwise prohibited evidence against its prejudicial impact, the court must consider a variety of matters, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

7. The trial court did not err in admitting evidence of defendant's involvement with the Hawaii Department of Human Services, Child Protective Services Branch (CPS), where the evidence offered was not to prove defendants' bad character and propensity to commit the offense charged, but rather, to establish that defendants' motive in not seeking medical help for their infant son was to avoid being blamed by CPS for his injuries.

8. Admission of opinion evidence is a matter within the discretion of the trial court, and only an abuse of that discretion can result in reversal.

9. Where a witness, although qualified as an expert, testifies about personal observations which any lay person is capable of making, such testimony does not constitute an "expert opinion" and the admission of such testimony is governed by HRE Rule 701.

10. HRE Rule 701 sets forth a liberal standard for admitting lay opinions into evidence. The opinion testimony is admissible as long as: (1) the witness has personal knowledge of matter that forms the basis of the testimony; (2) the testimony is rationally based on the witness' perception; and (3) the opinion is "helpful" to the jury (the principal test).

11. The trial court did not abuse its discretion when it allowed two expert witnesses to testify about a defendant's lack of remorse concerning her infant child's critical condition, where: (1) the testimony of both witnesses was based on their personal knowledge, observations, and perceptions of the defendant, gleaned from extensive discussions with her following her infant child's admission to the hospital and subsequent death; (2) the testimony was helpful in determining the defendant's intent to murder her infant child; and (3) the probative value of the witness' testimony was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury so as to require the exclusion of such testimony under HRE Rule 403.

Steven West, Deputy Public Defender (Linda C. Ramirez, Deputy Public Defender, on the briefs), Honolulu, for defendant-appellant Elena Louise Tucker.

Pamela J. Berman, Court-appointed Atty., Honolulu, for defendant-appellant Glenn Edward Tucker, Sr.

Caroline M. Mee, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Theodore Y.H. Chinn, Deputy Public Defender, Honolulu, on the motion for reconsideration, for defendant-appellant Elena Louise Tucker.

Pamela J. Berman, Court-appointed Atty., on the motion for reconsideration, Honolulu, for defendant-appellant Glenn Edward Tucker, Sr.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

WATANABE, Judge.

Following a consolidated jury trial, Elena Louise Tucker (Elena) and Glenn Edward Tucker, Sr. (Glenn), wife and husband (collectively, Defendants), were convicted and sentenced for the second degree murder of their six-month-old son, Glenn Edward Tucker, Jr. (Baby Glenn). Both Defendants appealed, alleging that the trial court committed several reversible errors. In State v. Tucker, 10 Haw.App. 43, 861 P.2d 24 (1993), this court vacated the judgment and remanded the case to the trial court, concluding that the trial court reversibly erred when it (1) gave a flawed jury instruction on the elements of murder in the second degree, which led to an improper closing argument by the deputy prosecutor; and (2) admitted into evidence the redacted confessions of Elena and Glenn, which implicated the other spouse. We specifically declined to address the remaining allegations of error raised by Defendants.

After considering the Application for Certiorari filed by the State of Hawaii (State), the Hawaii Supreme Court issued an order, dated July 21, 1993, agreeing with our June 10, 1993 opinion on the issues considered, but granting the Application and remanding the case to this court for a determination of the points on appeal we had previously declined to consider. This opinion, therefore, supplements our prior opinion and addresses the remaining points of error raised by Defendants.

DISCUSSION

Elena argues that the trial court committed reversible error when it: (1) gave the jury an improper instruction on accomplice liability; (2) failed to instruct the jury, sua sponte, that it had to consider the evidence separately and individually as to each defendant; (3) allowed testimony of Elena's prior involvement with the Hawaii Department of Human Services, Child Protective Services Branch (CPS); and (4) admitted testimony that Elena appeared unremorseful about Baby Glenn's critical condition. Glenn argues, additionally, that there was no substantial evidence to support the jury's guilty verdict against him.

I. Propriety of Jury Instructions on Accomplice Liability

Over the objections of defense counsel, the court read to the jury the following instructions on accomplice liability:

All persons who are present and participate in the commission of a crime are responsible for the action of each other, done or made in the furtherance of the crime. It is not necessary to prove by direct evidence that a defendant committed all the actions of which the crime consists, where it has been proved beyond a reasonable doubt that he or she is the accomplice of another.

A person is an accomplice of another in the commission of an offense if, with the intention of promoting or facilitating the commission of the offense, he or she does any of the following: One, aids another person in planning or committing the offense; or, two, agrees to aid the other person in planning or committing the offense; or, three, attempts to aid the other person in planning or committing the offense.

If a person is an accomplice of another he or she is responsible for each act committed by the other as if he--as if he or she committed the act himself or herself.

An accomplice who does one act which is an ingredient of [the] crime or immediately connected with it is guilty as if he or she committed the whole crime with his or her own hands.

2/14/91 Transcript (No. 6182) at 26.

Elena argues that the accomplice instruction was erroneously given for three reasons. First, Elena argues that the instruction was not warranted by the evidence at trial, since there was no showing that Defendants were working in concert.

Second, Elena contends that the accomplice instruction was extremely misleading because the first paragraph fails to include the requisite state of mind for accomplice liability. While conceding that the correct definition of an accomplice with its accompanying state of mind element was given in the third paragraph, Elena nevertheless maintains that the jury may have mistakenly believed that her failure to act, without more, was enough to hold her liable under the accomplice theory.

Third, Elena contends that the accomplice instruction should not have been given because the statutory duty to provide medical care to one's child is a duty owed by the individual parent and "accomplice theory is simply not...