State v. Forster

482 P.3d 565 (Table)

STATE of Hawaii, Plaintiff-Appellee, v. Karl L. FORSTER, Defendant-Appellant

NO. CAAP-18-0000816

Intermediate Court of Appeals of Hawai‘i.

March 8, 2021

On the briefs:

Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellant

Chad Kumagai, Deputy Prosecuting Attorney, for Plaintiff-Appellee

By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Karl L. Forster ( Forster ) appeals from the October 2, 2018 Judgment of Conviction and Sentence for Manslaughter in violation of Hawaii Revised Statutes (HRS ) § 707-702 (2014), ¹ entered by the Circuit Court of the First Circuit ( Circuit Court ) following a jury trial on the charge of Murder in the Second Degree. ² Forster was sentenced to a twenty-year term of imprisonment.

On appeal, Forster contends that the Circuit Court's substituted jury instructions (1.1, 1.2, 1.3, 1.4, 1.7, 2.1A, 2.2, and 2.4) ³ presented in lieu of Hawai‘i Pattern Jury Instructions - Criminal ( HAWJIC ) instructions, taken as a whole, were "prejudicially insufficient, erroneous, inconsistent, and misleading," denying Forster's constitutional rights to due process and a fair trial.

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 conclude Forster's appeal is without merit.

When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. Error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.

State v. Nichols, 111 Hawai‘i 327, 334, 141 P.3d 974, 981 (2006) (brackets omitted) (quoting State v. Gonsalves, 108 Hawai‘i 289, 292-93, 119 P.3d 597, 600-01 (2005) (citations omitted)).

This court considered a similar claim of error involving a substituted HAWJIC instruction in the recent case of State v. Char, No. CAAP-19-0000540, 2020 WL 7028600, (App. Nov. 30, 2020) (SDO). As we set forth in Char,

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 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))).

Char, 2020 WL 7028600, at *3.

In this case, the Circuit Court explained its use of alternative instructions in lieu of HAWJIC, as follows:

THE COURT: We've provided copies of the draft jury instructions to counsel. There's also Appendix A that we'll file, and generally speaking, Appendix A sets forth the rationale behind why I've crafted some of the instructions the way I've crafted them and with particular highlighting of Instruction 1.2, which is the presumption of innocence and reasonable doubt instruction.

For the most part, generally speaking, I've modified all of the HAWJIC instructions in an attempt to make them more easily understandable to the jury, to eliminate superfluous phrases, to make things more understandable in lay person's language, and the principles in all the HAWJIC instructions are all incorporated in these instructions. I've referenced them in the various instructions.

Forster objected to all of the Circuit Court's substituted HAWJIC instructions below, and challenges some of the instructions in this appeal. We address Forster's contentions as follows.

1.1, "Duty of Jury to Find Facts and Follow Law"

Forster contends that the second paragraph of 1.1 should have read as follows:

You are the exclusive judges of the facts of this case. It is your duty to weigh and to evaluate all the evidence received in the case and, in the process, to decide the facts (i.e., what happened). In other words, based on the evidence presented to you, you must determine [ find from the evidence] what the facts are.

(Underscoring, brackets and strikethroughs in original in the OB.) Forster's changes are underscored for additions, and bracketed with strikethroughs for deletions. Forster claims this paragraph is insufficient for failing to inform the jury that they are the "exclusive" judges of all questions of fact and the credibility of witnesses, citing Hawai‘i Rules of Evidence (HRE ) Rule 1102, which requires the trial court to inform the jury that they are the "exclusive" judges of those issues. This argument is without merit. 1.1 clearly informs the jury that they are the "judges of the facts" of the case, and reading the instructions as a whole, there is nothing to suggest that the jury was misled to believe otherwise.

Forster also contends that paragraphs 4, 5, and 6 of 1.1 should have read as follows:

You must decide the case solely on the evidence , such inferences therefrom as may be justified by reason and common sense, and the law. You must not be influenced by any personal likes or dislikes, pity or sympathy for the defendant, or passion or prejudice against the defendant [ , passion, pity or sympathy]. The oath that you took at the beginning of the case demands [ of] that you render a just verdict by conscientiously and dispassionately considering and weighing all of [ unaffected by anything except] the evidence, exercising your reason and common sense, and applying the law as I give it to you.

In following my instructions, you must consider all the instructions as a whole and consider each instruction in the light of all the others. Do not single out any word, phrase, sentence, or [ some] instruction[s] and ignore the others; they are all important. Do not give greater emphasis to any word, phrase, sentence or instruction simply because it is repeated in these instructions.

You must not read into these instructions, or into anything I [ may] have said or done during the trial , [ as indicating] an indication that I have an opinion about what facts were established by the evidence, which witnesses were credible, or [belief as to] what verdict you should return –- [ that is a] those matter s are entirely up to you.

This argument is also without merit. The inserted language, "such inferences therefrom as may be justified by reason and common sense," is repetitive and unnecessary due to similar language in 1.3 ("In considering the evidence, you may draw reasonable inferences from the testimony and exhibits that you feel are justified. In other words, you may make deductions and reach conclusions that reason, logic, and common sense lead you to draw from the facts which have been established by the evidence."). Forster's suggested rephrasing of the "passion, pity or sympathy" language, the requested insertion of the "conscientiously and dispassionately" language, and the admonition regarding not singling out certain instructions – are not necessary because 1.1 already conveyed these admonitions to the jury. Finally, Forster's requested additional language in the last paragraph to more explicitly state that what was meant by "evidence," to include "what facts were established" and "which witnesses were credible," was not necessary, as 1.3 explained to the jury what was meant by "evidence." ⁴ Viewing the instructions as a whole, the challenged 1.1 was not "incomplete or confusing," Sawyer, 88 Hawai‘i at 335, 966 P.2d at 647, and not "prejudicially insufficient, erroneous, inconsistent or misleading." Nichols, 111 Hawai‘i at 334, 141 P.3d at 981.

1.2, "Presumption of Innocence, Reasonable Doubt"

Forster contends that the Circuit Court erred in substituting 1.2 on the presumption of innocence and reasonable doubt, in lieu of HAWJIC 3.02. ⁵ 1.2 instructed the jury as follows:

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. Karl Forster 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 offense charged against Karl Forster beyond a reasonable doubt. He does not have to prove anything.

The phrase "reasonable doubt" does not have a technical or complicated meaning. A

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