State v. Char ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-NOV-2020
11:40 AM
Dkt. 110 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARK CHAR, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC161001291)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
Defendant-Appellant Mark Char (Char) appeals from the
Judgment of Conviction and Sentence (Judgment), entered on
July 1, 2019, in the Circuit Court of the First Circuit (Circuit
Court).1/ After a jury trial, Char was convicted of: (1)
Attempted Murder in the Second Degree, in violation of Hawaii
Revised Statutes (HRS) §§ 705-500,2/ 707-701.5,3/ and 706-656;4/
1/
The Honorable Todd W. Eddins presided.
2/
HRS § 705-500 (2014) provides:
Criminal Attempt. (1) A person is guilty of an
attempt to commit a crime if the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant
circumstances were as the person believes them
to be; or
(b) Intentionally engages in conduct which, under
the circumstances as the person believes them to
be, constitutes a substantial step in a course
of conduct intended to culminate in the person's
commission of the crime.
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(2) Assault in the Second Degree, in violation of HRS
§§ 707-711(1)(a) and/or 707-711(1)(b);5/ and (3) Assault in the
Third Degree, in violation of HRS §§ 707-712(1)(a) and/or
707-712(1)(b).6/
2/
...continue
(2) When causing a particular result is an element of
the crime, a person is guilty of an attempt to commit the
crime if, acting with the state of mind required to
establish liability with respect to the attendant
circumstances specified in the definition of the crime, the
person intentionally engages in conduct which is a
substantial step in a course of conduct intended or known to
cause such a result.
(3) Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of
the defendant's criminal intent.
3/
HRS § 707-701.5 (2014) provides:
Murder in the second degree. (1) Except as provided
in section 707-701, a person commits the offense of murder
in the second degree if the person intentionally or
knowingly causes the death of another person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
in section 706-656.
4/
HRS § 707-656 (2014) states, in relevant part:
Terms of imprisonment for first and second degree
murder and attempted first and second degree murder . . . .
. . . .
(2) Except as provided in section 706-657, pertaining
to enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second
degree murder shall be sentenced to life imprisonment with
possibility of parole.
5/
HRS § 707-711 (2014) states, in relevant part:
(1) A person commits the offense of assault in the
second degree if:
(a) The person intentionally or knowingly causes
substantial bodily injury to another;
(b) The person recklessly causes serious or
substantial bodily injury to another[.]
6/
HRS § 707-712 (2014) states, in relevant part:
(1) A person commits the offense of assault in the
third degree if the person:
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On appeal, Char contends that: (1) the Circuit Court's
jury instruction on the presumption of innocence and reasonable
doubt, presented in lieu of Hawai#i Pattern Jury Instructions
Criminal (HAWJIC) 3.02, "was prejudicially insufficient, thus
denying Char his constitutional rights to due process and a fair
trial"; and (2) the State committed prosecutorial misconduct
during its rebuttal closing argument when the Deputy Prosecuting
Attorney (DPA) posed questions that "clearly and improperly
appealed to the jury's sympathy."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
Judgment for the reasons set forth below.
I. Background
On August 1, 2016, Char was involved in a physical
altercation along the H-1 freeway following a traffic incident.
He was charged with Attempted Murder in the Second Degree as to
Complainant Jesther Marlang (Marlang), Assault in the Second
Degree as to Complainant Deion Anunciacion (Anunciacion), and
Assault in the Third Degree as to Complainant Jene Winn (Winn).
At trial, the State alleged that during the altercation, Char:
(1) stabbed Marlang five times, to his abdomen and the side of
his body, and sliced the back of Marlang's neck and forearm; (2)
stabbed one and sliced the other of Anunciacion's forearms; and
(3) sliced two of Winn's fingers. Char claimed he was defending
himself against two younger men, Marlang and Anunciacion, who
were attacking him.
On March 1, 2019, the jury found Char guilty as charged
on all three counts. This appeal followed.
6/
...continue
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person; or
(b) Negligently causes bodily injury to another
person with a dangerous instrument.
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II. Discussion
A. Jury Instruction
Char argues that the Circuit Court erred in
substituting its own jury instruction on the presumption of
innocence and reasonable doubt for HAWJIC 3.02.
HAWJIC 3.02 states:
3.02 PRESUMPTION OF INNOCENCE; REASONABLE DOUBT
You must presume the defendant is innocent of the
charge against him/her. This presumption remains with the
defendant throughout the trial of the case, unless and until
the prosecution proves the defendant guilty beyond a
reasonable doubt.
The presumption of innocence is not a mere slogan but
an essential part of the law that is binding upon you. It
places upon the prosecution the duty of proving every
material element of the offense charged against the
defendant beyond a reasonable doubt.
You must not find the defendant guilty upon mere
suspicion or upon evidence which only shows that the
defendant is probably guilty. What the law requires before
the defendant can be found guilty is not suspicion, not
probabilities, but proof of the defendant's guilt beyond a
reasonable doubt.
What is a reasonable doubt?
It is a doubt in your mind about the defendant's guilt
which arises from the evidence presented or from the lack of
evidence and which is based upon reason and common sense.
Each of you must decide, individually, whether there
is or is not such a doubt in your mind after careful and
impartial consideration of the evidence.
Be mindful, however, that a doubt which has no basis
in the evidence presented, or the lack of evidence, or
reasonable inferences therefrom, or a doubt which is based
upon imagination, suspicion or mere speculation or guesswork
is not a reasonable doubt.
What is proof beyond a reasonable doubt?
If, after consideration of the evidence and the law,
you have a reasonable doubt of the defendant's guilt, then
the prosecution has not proved the defendant's guilt beyond
a reasonable doubt and it is your duty to find the defendant
not guilty.
If, after consideration of the evidence and the law,
you do not have a reasonable doubt of the defendant's guilt,
then the prosecution has proved the defendant's guilt beyond
a reasonable doubt and it is your duty to find the defendant
guilty.
In lieu of HAWJIC 3.02, the Circuit Court instructed
the jury as follows:
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It is a cardinal principle of our system of justice
that a person accused of a crime is presumed not to have
committed the crime. Mark Char is presumed innocent unless
you conclude that his guilt has been established beyond a
reasonable doubt.
The presumption of innocence requires the prosecution
to prove every element of the offenses charged against Mark
Char beyond a reasonable doubt. He does not have to prove
anything.
The phrase reasonable doubt does not have a technical
or complicated meaning. A reasonable doubt is exactly what
it is -- a doubt that is reasonable. You must use your
common sense and the rational faculties and logical
processes of your mind to determine whether you have a doubt
that is reasonable. Be mindful that not all doubts are
reasonable doubts. A doubt based upon imagination, or mere
speculation or guesswork is not a reasonable doubt.
A reasonable doubt is a doubt based on your reason and
common sense. It arises from the evidence, or a lack of
evidence, or the reasonable inferences that emerge. Through
reason you must decide whether your mind is free or not free
of a reasonable doubt.
Proof beyond a reasonable doubt is a very high
standard for the prosecution to satisfy. However, the
prosecution's heavy burden does not mean it must prove the
elements of a crime beyond all possible doubt or to an
absolute certainty. You must not base your decision on the
proposition that anything is possible or nothing is certain.
If, after fair and impartial consideration of all the
evidence and the law, you do not have a reasonable doubt of
Mark Char's guilt, then the prosecution has proved his guilt
beyond a reasonable doubt and it is your duty to find Mark
Char guilty.
On the other hand, if, after fair and impartial
consideration of all the evidence and the law, you have a
reasonable doubt of Mark Char's guilt, then the prosecution
has not proved his guilt beyond a reasonable doubt and it is
your duty to find Mark Char not guilty.
Char first contends that the Circuit Court's
instruction was prejudicially deficient because it omitted the
following statement contained in HAWJIC 3.02: "The presumption
of innocence is not a mere slogan but an essential part of the
law that is binding upon you." Char argues that this statement
"highlights that the presumption of innocence is not a phrase to
be taken lightly and/or ignored" and was thus "an essential
precept that should have been provided to the jury."
The United States Supreme Court has explained that "the
Constitution does not require that any particular form of words
be used in advising the jury of the government's burden of
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proof[,]" so long as "taken as a whole, the instructions . . .
correctly convey the concept of reasonable doubt to the jury."
Victor v. Nebraska, 511 U.S. 1, 5 (1994) (brackets omitted)
(quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
Likewise, the Hawai#i Supreme Court has stated: "It is well
settled that jury instructions are to be viewed as a whole."
State v. Sawyer, 88 Hawai#i 325, 335, 966 P.2d 637, 647 (1998)
(citing State v. Cullen, 86 Hawai#i 1, 8, 946 P.2d 955, 962
(1997)). The court also has made clear that "the duty to
properly instruct the jury lies with the trial court," State v.
Nichols, 111 Hawai#i 327, 335, 141 P.3d 974, 982 (2006), and
deviation from HAWJIC "does not automatically result in
incomplete and confusing jury instructions." Sawyer, 88 Hawai#i
at 335, 966 P.2d at 647 (rejecting the defendant's argument that
"deviation from HAWJIC is prejudicial per se" and noting "[t]he
introduction to the instructions clearly states that 'nothing
herein shall be construed as an approval by the Supreme Court of
the State of Hawai#i of the substance of any of said
instructions.'" (brackets omitted) (quoting HAWJIC (1991))).
Here, the Circuit Court explained its use of
alternative instructions in lieu of HAWJIC, as follows:
I have modified or revised the Hawaii standard jury
instructions. In my view a lot of the standard jury
instructions are stale. They are unhelpful phrases,
misleading comparisons. There's a lack of consolidation,
there's redundancy. So I have attempted to craft jury
instructions that are more easily understandable to the jury
that will better aid the jury in their understanding of the
law.
Viewing the Circuit Court's instructions as a whole, we
conclude that they correctly conveyed the concepts of the
presumption of innocence and reasonable doubt, and sufficiently
conveyed the importance of these concepts. See Sawyer, 88
Hawai#i at 335, 966 P.2d at 647. For example, the instruction at
issue included the following language: "It is a cardinal
principle of our system of justice that a person accused of a
crime is presumed not to have committed the crime. Mark Char is
presumed innocent unless you conclude that his guilt has been
established beyond a reasonable doubt." Additionally, the court
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instructed the jurors: "The presumption of innocence requires
the prosecution to prove every element of the offenses charged
against Mark Char beyond a reasonable doubt. He does not have to
prove anything." Likewise, the court instructed: "Proof beyond
a reasonable doubt is a very high standard for the prosecution to
satisfy." Viewed as a whole, the court's instructions were not
"prejudicially insufficient, erroneous, inconsistent, or
misleading." State v. Matuu, 144 Hawai#i 510, 516, 445 P.3d 91,
97 (2019) (quoting State v. Kassebeer, 118 Hawai#i 493, 504, 193
P.3d 409, 420 (2008)).
Char next contends that the challenged instruction was
misleading because, in its last two sentences, the "'guilty'
instruction comes before the 'not guilty' instruction." Char
notes that in contrast, HAWJIC 3.2 "gives the 'not guilty"
instruction before the 'guilty instruction.'" Char argues that
by "[p]lacing the 'guilty' instruction first," the challenged
instruction is "subliminally misleading and leans towards the
presumption of guilt and not the presumption of innocence."
Char does not cite any Hawai#i authority to support his
argument, and we have found none. We note, however, that a
number of courts in other jurisdictions have rejected similar
claims regarding the order in which "guilty" and "not guilty"
have appeared on verdict forms. See, e.g., Rowland v. State, 829
S.E.2d 81, 89 (Ga. 2019) ("Nor did the order in which 'guilty'
and 'not guilty' were listed on the verdict form, when viewed in
light of the rest of the court's instructions, mislead the
jury."); Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 888
Pa. Super.), appeal denied, 221 A.3d 644 (Pa. 2019) (concluding
that a verdict slip that listed "Guilty" before "Not Guilty" "did
not infringe upon the [defendant's] right of presumed innocence"
and, thus, "no Due Process violation occurred, and no appellate
relief is due"); State v. Hayes, 462 P.3d 1195, 1207 (Kan. Ct.
App. 2020) ("The district court did not err by placing the guilty
option above the not guilty option in the verdict form given to
the jury.").
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Here, after fully explaining the presumption of
innocence and the concept of reasonable doubt, the Circuit Court
articulated the circumstances under which the jury had a duty to
find Char "guilty," and those under which it had a duty to find
him "not guilty." Viewing the instructions as a whole, we
conclude that the order of the last two sentences of the
challenged instruction was not "prejudicially insufficient,
erroneous, inconsistent, or misleading," Matuu, 144 Hawai#i at
519, 445 P.3d at 100; nor did the instructions result in "a
reasonable possibility that error might have contributed to
conviction." State v. Pond, 118 Hawai#i 452, 462, 193 P.3d 368,
378 (2008).
B. Prosecutorial Misconduct
At trial, toward the end of the State's rebuttal
argument, the DPA stated:
You also know it's not self defense because Judy Char
does not get out of the red Camaro. What spouse, if they're
seeing their spouse or loved one being beaten by two men,
isn't going to get out and try to do something? Get out and
plead with the attackers to stop, honk the horn, get out,
try to flag by some motorists, flag down some motorists.
Or how about she just pulls her cell phone out and
calls 911, because the defendant said she had a cell phone
to call 911. That makes absolutely no sense, that he's being
so -- he's beaten so badly that he's got to pull out a knife
and maim these men, but she doesn't call 911. It makes
absolutely no sense.
There's two types of people in this case. You have
those folks who did nothing. Judy Char. You have other folks
who did something. You have a nurse practitioner who bare
handed plugged Jesther's hole where his kidney had been
sliced off. You had a military man take off his uniform and
wrap it around Jesther's injury. You have Kaohu Detwiler
trying to desperately keep Jesther from bleeding out on the
freeway. Those are the two types of people involved in this
case.
And so, you know, when I'm hearing -- and when I'm
sitting there and I'm listening to defense counsel trying to
think, you know, what -- what can I say to these people?
What is going to be the most persuasive thing I can say? For
Jesther and Deion, what can I say for these boys?
And then, you know what, I think I realize that
there's nothing I really can say, because what I have done
in the time we've spent together is I've tried to recreate
exactly what happened on August 1st, 2016 for you folks, in
this courtroom, with 14 witnesses.
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So there's only really two questions left. Are you
going to stop and help these boys? Or are you going to just
pass on by?
Thank you.
Char contends that the questions, "Are you going to
stop and help these boys? Or are you going to just pass on by?"
constituted prosecutorial misconduct. He argues that these
questions "appealed to the sympathy of the jury" and constituted
"a request for them to use their conscience."
When a defendant alleges prosecutorial misconduct, we
decide: "(1) whether the conduct was improper; (2) if the
conduct was improper, whether the misconduct was harmless beyond
a reasonable doubt; and (3) if the misconduct was not harmless,
whether the misconduct was so egregious as to bar reprosecution."
State v. Udo, 145 Hawai#i 519, 534-35, 454 P.3d 460, 475-76
(2019) (citing State v. Maluia, 107 Hawai#i 20, 25-26, 108 P.3d
974, 979-80 (2005)); see State v. Tuua, 125 Hawai#i 10, 14, 250
P.3d 273, 277 (2011) ("This court evaluates claims of improper
statements by prosecutors by first determining whether the
statements are improper, and then determining whether the
misconduct is harmless." (citing State v. Kiakona, 110 Hawai#i
450, 458, 134 P.3d 616, 624 (App. 2006)). Similarly, because
Char did not object to the alleged misconduct during trial, "we
must determine whether the prosecutor's comment[s] [were]
improper and, if so, whether such misconduct constituted plain
error that affected [Char's] substantial rights." State v.
Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996) (citing
State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986));
see State v. Wakisaka, 102 Hawai#i 504, 513, 78 P.3d 317, 326
(2003); HRPP Rule 52(b).
In evaluating whether a prosecutor's conduct was
proper, we consider "the nature of the challenged conduct in
relation to our criminal justice system generally and the special
role of the prosecutor specifically." Udo, 145 Hawai#i at 535,
454 P.3d at 476 (quoting State v. Underwood, 142 Hawai#i 317,
325, 418 P.3d 658, 666 (2018)). The supreme court has stated:
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[A] prosecutor, during closing argument, is permitted to
draw reasonable inferences from the evidence and wide
latitude is allowed in discussing the evidence. It is also
within the bounds of legitimate argument for prosecutors to
state, discuss, and comment on the evidence as well as to
draw all reasonable inferences from the evidence.
Clark, 83 Hawai#i at 304, 926 P.2d at 209 (citations omitted).
In determining whether a prosecutor's statements during closing
were improper, we look at the statements in context, considering
the argument in its entirety. See State v. Mars, 116 Hawai#i
125, 142, 170 P.3d 861, 878 (App. 2007); see also State v. Bruce,
141 Hawai#i 397, 407-08 411 P.3d 300, 310-11 (2017)(concluding
that, while viewed in a vacuum, the prosecutor's comments during
closing argument could be viewed as improper, considered in
context, the comments were not improper "because they did not
detract from the main point of the otherwise meritorious
argument" based on the evidence); State v. Pasene, 144 Hawai#i
339, 369, 439 P.3d 864, 894 (2019) ("in context, the DPA's
statements entreated the jury to use their life experiences to
judge the credibility of the witness' testimony, rather than
asking the jury to put themselves in the witnesses' position").
Here, viewed in isolation, the questions at issue can
be construed as an appeal to the jury's sympathy. The questions,
however, were not posed in isolation. Immediately prior to
raising the questions, the State argued against Char's
self-defense claim by highlighting the alleged inconsistencies
between his testimony and his wife's alleged actions during the
incident, and by contrasting those actions with those of the
witnesses who stopped to render aid or who contacted the police.
The State also referenced its attempt to recreate the incident
for the jury through its fourteen witnesses. It was in this
context that the State then posed the two questions at issue.
Considering the argument in its entirety, we conclude that these
questions were not a bald request for sympathy, but, rather, a
rhetorical device to urge the jury to reject Char's self-defense
claim and to return a guilty verdict based on the evidence
presented at trial. In sum, the two questions at issue did not
rise to the level of misconduct. See Bruce, 141 Hawai#i at 408
411 P.3d at 311.
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Having reached this conclusion, we need not determine
whether the alleged misconduct was harmless beyond a reasonable
doubt or so egregious as to bar reprosecution. See State v.
Mara, 98 Hawai#i 1, 16, 41 P.3d 157, 172 (2002); State v. Roqan,
91 Hawai#i 405, 423, 984 P.2d 1231, 1249 (1999). For the same
reason, we do not reach the issue of plain error. See Clark, 83
Hawai#i at 305, 926 P.2d at 210.
III. Conclusion
For these reasons, we affirm the Judgment of Conviction
and Sentence, entered on July 1, 2019, in the Circuit Court of
the First Circuit.
DATED: Honolulu, Hawai#i, November 30, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Harrison L. Kiehm Chief Judge
for Defendant-Appellant.
Chad M. Kumagai, /s/ Katherine G. Leonard
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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