State v. Uyesugi

• Decision Date: 26 December 2002
• Docket Number: No. 23805.,23805.
• Citation: 100 Haw. 442,60 P.3d 843
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Byran UYESUGI, Defendant-Appellant.
• Court: Hawaii Supreme Court

60 P.3d 843

100 Haw. 442

STATE of Hawai`i, Plaintiff-Appellee, v. Byran UYESUGI, Defendant-Appellant.

No. 23805.

Supreme Court of Hawai`i.

December 26, 2002.

Deborah L. Kim and Edward K. Harada, Deputy Public Defenders, on the briefs, for defendant-appellant.

Donn Fudo, Deputy Prosecuting Attorney and Brian Toma, Law Clerk on the brief, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ., and ACOBA, J., concurring separately, with whom RAMIL, J., joins.

Opinion of the Court by NAKAYAMA, J.

Defendant-appellant Byran Uyesugi appeals from the judgment of the first circuit court, the Honorable Marie N. Milks presiding, convicting Uyesugi of murder in the first degree in violation of Hawai`i Revised Statutes (HRS) § 707-701 (1993)¹ and attempted murder in the second degree in violation of HRS §§ 705-500 (1993)² and 707-701.5 (1993).³ On appeal, Uyesugi argues that: (1) the circuit court erred when it failed to instruct the jury on the legal definition of the terms "appreciate" and "wrongfulness"; (2) the circuit court's verdict unanimity instruction violated his right to a unanimous jury verdict because it was prejudicially insufficient and misleading; (3) the circuit court erred when it failed sua sponte to intervene when the prosecution (a) described the victims' families, hobbies, and characteristics, and (b) obtained testimony from the family members of the victims describing personal details about the victim's lives; (4) the circuit court erred when it permitted the prosecution to introduce (a) an exhibit containing a picture of the twenty-four weapons he owned but were not used in the shooting, and (b) expert testimony about the characteristics of the weapons in the absence of an objection from defense counsel; and (5) he was deprived of effective assistance of counsel. We hold that: (1) as a matter of plain error analysis, defense counsel having failed to object to the jury instructions in which the term "appreciate" and "wrongfulness" were not defined, Uyesugi has failed to establish that his substantial rights were violated; (2) the unanimity instructions were not prejudicially insufficient or misleading; (3) the circuit court did not commit plain error when it did not, sua sponte, order the prosecution not to (a) allude to the characteristics of the victims in opening statements or (b) introduce testimony of victims' family members; (4) the circuit court did not commit plain error when, without objection, it allowed the introduction of one picture of the defendant's weapons and permitted the testimony of a weapons expert; and (5) Uyesugi did not receive ineffective assistance of counsel through the pretrial and trial proceedings.

I. BACKGROUND

On November 9, 1999, Uyesugi was indicted on one charge of first degree murder for the shooting deaths of seven individuals, seven counts of murder in the second degree, and one count of attempted murder in the second degree. Witnesses testified that Uyesugi was an employee of the Xerox Corporation, and that on November 2, 1999 he arrived at work in time for an 8:00 a.m. "work group" meeting. Two of the seven victims were in the meeting room when witnesses heard a loud explosion, saw the two victims shot, and observed Uyesugi crouched with a gun in his hand. Two other witnesses testified to hearing the loud explosions and discovering the remaining five victims. Uyesugi surrendered without further incident after a standoff with the police lasting several hours.

A. Jury instructions regarding the affirmative defense of physical or mental disease, disorder or defect excluding penal responsibility.

Jury instruction number 26, originally proposed by the prosecution, provided that:

It is an affirmative defense to a criminal charge that, at the time of the offense, the Defendant was not criminally responsible for his conduct.

The Defendant is not criminally responsible for his conduct if it is more likely than not or more probable than not that, at the time of the charged offense(s) and as a result of a physical or mental disease, disorder or defect, the Defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

A person "lacks substantial capacity" either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law if his capacity to do so has been extremely limited by physical or mental disease, disorder or defect. The phrase "lack of substantial capacity" does not mean a total lack of capacity. It means capacity which has been impaired to such a degree that only an extremely limited amount remains. The term "physical or mental disease, disorder or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

You must return a verdict of not guilty by reason of physical or mental disease, disorder or defect which excludes criminal responsibility if you find by a preponderance of evidence, that is, that it is more likely or more probable than not, that, at the time of the charged offense, 1) the Defendant was suffering from a physical or mental disease, disorder, or defect, and 2) that as a result of such physical or mental disease, disorder or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

Defense counsel withdrew their requested instructions on the affirmative defense of physical or mental disease, disorder, or defect excluding criminal responsibility on June 1, 2000. The withdrawn instructions did not provide definitions of "appreciate" or "wrongfulness." The circuit court also instructed that "[u]nless otherwise provided, the words used in these instructions shall be given their usual sense and in connection with the context in which they appear."

B. Jury unanimity instructions

The circuit court provided unanimity instructions. The prosecution's proposed instruction number 1, regarding first degree murder, was given over the defendant's objection. That instruction provided that "[i]n order to find that the prosecution has proven the first element, you must find that the Defendant caused the deaths of two or more of the people specified. Your decision as to each death must be unanimous." Instructions regarding murder in the second degree were given by agreement: "However, if and only if you find the Defendant not guilty in Count I of the offense of Murder in the First Degree, or if you are unable to reach a unanimous verdict as to this offense, then you must consider whether the Defendant is guilty or not guilty in Counts II through and including Count VIII of Murder in the Second Degree." The court's instruction number 17, given by agreement, provided that "[a] verdict must represent the considered judgment of each juror, and in order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous." The court's instruction number 18 was given by agreement; it provided that, "[d]uring your deliberations, you must not discuss this case with any person other than your fellow jurors. You must not reveal to the court or to any other person how the jury stands, numerically or otherwise, until you have reached a unanimous verdict and it has been received by the court." Instruction number 29, given by agreement provided that "[i]f and only if you find the Defendant not guilty in Count I of the offense of Murder in the First Degree, or you are unable to reach a unanimous verdict as to that offense then you may bring in one of the following verdicts[.]" The circuit court instructed that if the defendant "has not proved both of these [lack of penal responsibility elements] by a preponderance of the evidence then you must find that this defense does not apply." At the conclusion of instruction number 29 the court reiterated to the jury that "[y]our verdicts must be unanimous." At no time during deliberations did the jury request clarification of any of the instructions.

C. The prosecution's opening statement and witness testimony

During opening statements, the prosecutor referred to the victims and the victims' families. He stated:

Mel Lee, 58 years old; Waipahu High School; Electronics Institute of Hawai`i; married for 18 years, two sons and a daughter; Xerox for 32 years. He was the defendant's boss. Along with the names of each of the victims, I will give you something about them or their life to help connect the two so you will ultimately understand exactly who was there and why they were there.

Also was Ford Kanehira, 41 years old; Castle High School, also the Electronics Institute of Hawai`i. He had been married for 18 years. He had a son. He had been with Xerox for 19 years. He married, basically, his high school sweetheart. He was 17, she was 14 when they met. They dated for five years. They got married for a quarter of a century of their lives. They had been virtually inseparable until they had a child, and then the three of them were inseparable.

Ronny Kataoka, 50 years old; Leilehua High School. He learned his electronic trade at Honolulu Community College, also married his high school sweetheart, married for 25 years. He and his wife also worked for the Xerox Corporation, Lynn. They had a daughter. He had been with Xerox for 27 years. When the National Guard was called up from Hawai`i to serve in Vietnam, Ronny was part of the National Guard, and he served. He was a Vietnam veteran. He carried a grenade launcher while he was in Vietnam.

Peter Mark, 46 years old; Kaimuki High School, Electronics Institute of Hawai`i; married for 16 years, two sons; Xerox for 19 years. He loved everything to do with the ocean. He loved surfing, until he got married with two kids, and then surfing took a sort of a backseat to his love of the ocean [sic]. He was buried at sea within sight of Diamond Head.

John

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