CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30161; CR. NO. 08-1-0331)
Kimberly Tsumoto Guidry for petitioner
Phyllis J. Hironaka for respondent
RECKTENWALD, C.J., NAKAYAMA AND MCKENNA, JJ., AND CIRCUIT JUDGE GARIBALDI, ASSIGNED BY REASON OF VACANCY; WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY
The State asks us in this appeal to overrule the plurality opinion in State v. Stenger, 122 Hawai'i 271, 226 P.3d 441 (2010). Despite the apparent confusion regarding its actual holding, Stenger does not stand for the proposition for which it is sometimes cited; therefore, we decline to overrule Stenger. "[A] court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." Johnston v. KFC Nat'l Mgmt. Co., 71 Haw. 229, 233, 788 P.2d 159, 161 (1990) (internal quotations and citations omitted). Due to the confusion, however, we do take the opportunity to clarify Stenger's holding.
Since Stenger's publication, our appellate courts have interpreted the case inconsistently. A dissent to one of our dispositions notes that Stenger held that a trial court has a duty to sua sponte give a jury instruction on a defense that the defendant has not asked for, where there is some evidence supporting the defense, no matter how weak, inconclusive, or unsatisfactory the evidence may be. See, e.g., State v. Pang, No. 29003 (Haw. Aug. 30, 2010) (dissent to order rejecting application for writ of certiorari) at 1. Many of the Intermediate Court of Appeals' ("ICA") dispositions note that Stenger held that the trial court has a limited duty to sua sponte instruct the jury on a particular defense only if (1) it appears that the defendant is relying on such a defense, or (2) if there is substantial evidence supportive of such a defense, and the defense is not inconsistent with the defendant's theory of the case, citing the alternative standard that Chief Justice Moon suggested in dissent. Stenger, 122 Hawai'i at 299, 226 P.3d at 469 (Moon, C.J., dissenting). See, e.g., State v. Yue, No. 29141 (App. Sept. 23, 2010)(SDO) at 7; State v. Metcalfe, No. 30518 (App. Mar. 30, 2012)(mem.) at 15; State v. Mabson, No. 29386, (App. Sept. 28, 2011)(SDO) at 3. Even though unpublished dispositions of the appellate courts are "not precedent, " they may nonetheless be "cited for persuasive value." Hawai'i Rules of Appellate Procedure Rule 35(c)(2)(2010). Hence, the need for clarity is apparent.
In the process of clarifying Stenger, we also reexamine our holding in State v. Nichols, 111 Hawai'i 327, 141 P.3d 974 (2006). It is this court's duty to revisit our legal rules from time to time, as circumstances demand:
Blind adherence to legal rules constitutes an abrogation of the judicial function. Such blind adherence may result as much from adoption of a rule without adequate analysis as from application of a precedent without examination of its claim to validity. Legal rules should result from, rather than be a substitute for, legal analysis. Judicial rumination of ideas in a multitude of factual circumstances gives birth to rules. And continued rumination insures that such rules will be applied only as long as they serve the function for which they were designed.
Columbia Casualty Co. v. Hoohuli, 50 Haw. 212, 217, 437 P.2d 99, 104 (1968). On the issue of how appellate courts are to review the impact of an unrequested mistake of fact jury instruction, denominated as error for the first time on appeal, we clarify and hold that such error is to be reviewed first for plain error. In the case of an unrequested mistake of fact jury instruction, plain error exists if the defendant, at trial, had met his or her initial burden to adduce credible evidence of facts constituting the defense (unless those facts are supplied by the prosecution's witnesses). See Stenger, 122 Hawai'i at 280, 226 P.3d at 450 (citing State v. Locguiao, 100 Hawai'i 195, 206, 58 P.3d 1242, 1253 (2002) and the Commentary to Hawai'i Revised Statutes ("HRS") § 701-115 (1993)). If the omission of the unrequested mistake of fact jury instruction constitutes plain error, it shall be a basis for reversal of the defendant's conviction only if an examination of the record as a whole reveals that the error was not harmless beyond a reasonable doubt.
A. The Trial
Respondent/Defendant-Appellant Pamela Taylor was charged by Felony Information and Non-Felony Complaint with Theft in the Second Degree, in violation of HRS §§ 708-830(2) (1993) and 708-831(1) (b) (1993) (Count I); and Unauthorized Practice of Law, in violation of HRS §§ 605-14 and -17 (1993 & Supp. 2007) (Count II). The charges stemmed from a period of time in February 2007 in which Taylor allegedly offered to provide legal services to Mariko Bereday, and subsequently obtained or exerted control over a retainer check for $7, 000.00 by deception.
Taylor defended against these allegations by asserting that she herself was a victim of deception. She testified she believed she was offering legal services to Bereday on behalf of Ismael Serna Lara and Damon Roth, two individuals she assumed were lawyers working for a firm called Legal Associate Services, Inc., LLC.
The complaining witness, Mariko Bereday, testified to the events leading up to Taylor's prosecution as follows. Bereday's friend had referred Taylor to her as an attorney. When Taylor went to Bereday's home for their first meeting, Taylor stated she was previously a federal public defender but was currently an attorney working at a 35-person law firm.
Taylor went to Bereday's home again with a retainer agreement, which Bereday did not sign, and asked for a $30, 000 retainer. Because Bereday could only afford $7, 000, she wrote out a check in that amount, with the payee line blank at Taylor's direction. The very next day, Taylor called her from the bank where Taylor was attempting to cash the check. Bereday asked Taylor why the check had to be cashed, and Taylor stated that her boss wanted to make sure Bereday's money was good.
That morning, $7, 000.00 was drawn on Bereday's account. Bereday later became suspicious and asked the bank to see the copy of the check. Bereday was surprised to see Serna Lara's name on the payee line, having never dealt with him.
After learning that there was no such law firm as Legal Associate Services, Inc., LLC and that Taylor was not an attorney, Bereday confronted Taylor and demanded her money back. Taylor returned to Bereday' s home with a Capitol One check for $7, 000.00 with Taylor's "law number" written on it. The check turned out to be a "bogus" check not connected to any checking account. Bereday never got her money back.
Other witnesses for the State testified consistently with Bereday's testimony. Julie Tablit, a customer service manager at the Kapolei Branch of Central Pacific Bank ("CPB"), testified that Taylor took the lead in attempting to cash Bereday's $7, 000.00 check. Tablit testified that a male and a female (whom she later positively identified through photographic line-ups as Serna Lara and Taylor, respectively) presented a questionable check to one of the bank tellers. The teller called Tablit over because the check amount was over her cashing limit, and Tablit spoke with Taylor, who stated that the check was for "payment or service that was rendered to Ms. Bereday." Tablit attempted to speak with Serna Lara, but Taylor informed her that he did not speak English. According to Tablit, Serna Lara did not do anything or say anything during the five minutes that Tablit and Taylor spoke. That day, Tablit also confirmed Serna Lara's identity through his Hawai'i drivers license. Serna Lara also inked his thumbprint upon the check, per bank procedures. Tablit could not reach Bereday by phone, so she refused to cash the check and directed Taylor and Serna Lara to the Kahala Times Supermarket in-store branch of CPB, Bereday's home branch, for further action.
Stephanie Hirayama, the manager of that branch, testified that a male and a female (whom she did not rule out in a later photographic lineup as Serna Lara and Taylor), came in to cash the $7, 000.00 check. Even though Serna Lara was the payee, Taylor did all the talking. Hirayama testified that Bereday, by phone, authorized her to cash the check, and that Taylor was the one who took the $7, 000.00 cash off the counter.
Glenn Taniguchi, an accountant and attorney who had a longstanding professional relationship with Bereday, testified that he also discovered Taylor was not listed in the bar directory. When he confronted Taylor with that fact, Taylor told him she was listed under her maiden name, Pamela Merch. Taniguchi confirmed that a "Pamela Merch" was an inactive attorney. Unable to reach Merch under the Maryland telephone number in the bar directory, Taniguchi abandoned his efforts to confirm Taylor's credentials. Taniguchi later demanded that Taylor return the $7, 000.00 in the form of a cashier's check or cash to Bereday by a date certain, which Taylor agreed to do but did not do. Instead, Bereday received the bogus $7, 000.00 check from Taylor.
Although the State provided no evidence concerning Roth, the State did provide evidence that there was no such business entity by the name of Legal Associate Services, Inc., LLC, and that Serna Lara was not an attorney.
Testimony regarding Serna Lara came from David Wong, the owner-operator of the former Mountain View Dairy in Wai'anae. He testified that Serna Lara had been a full-time cow-milker for about ten years at the time of the alleged theft. Wong testified that Serna Lara lived in the employee housing complex on-site.
Wong stated that he had seen Taylor at Serna Lara's home before. Wong testified that Serna Lara was not a licensed attorney, did not work for a law firm, did not run a law office out of his employee housing, and never mentioned anything about working at a law firm. Put plainly, Serna Lara was "[j]ust a milker."
Taylor testified in her own defense. She testified that she graduated from the David A. Clarke School of Law in Washington, D.C. in 1998, moved to Hawai'i in 2000, but never took the Hawai'i bar exam. Taylor never disputed that she was not licensed to practice law in Hawai'i. Taylor denied telling Bereday or Taniguchi she was an attorney.
Taylor testified generally that she took direction from Serna Lara and Roth. Taylor testified that Bereday spoke by phone with Roth multiple times and directed that her $7, 000.00 check be turned over to Roth. Unable to reach Roth, Taylor instead turned the check over to Serna Lara and later met up with him at the Kapolei CPB branch. After Tablit refused to cash the check, Taylor and Serna Lara went to the Kahala CPB branch, where Hirayama cashed the check and handed the money to Serna Lara. Taylor testified that she never touched the money and did not know what happened to the $7, 000.00 in cash.
Taylor testified that Serna Lara instructed her to visit Bereday's home again to deliver a receipt for the check and other paperwork. After Bereday demanded a refund of the $7, 000.00, Serna Lara became "infuriated, " wrote out a refund check, and directed ...