NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 11-1-0186)
Tae Won Kim for Defendant-Appellant.
Stephen K. Tsushima Deputy Prosecuting Attorney for Plaintiff-Appellee.
Nakamura, Chief Judge, Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Francisco Manuka (Mahuka) appeals from an August 9, 2011, Circuit Court of the First Circuit (Circuit Court) Judgment of Conviction and Sentence for Robbery in the Second Degree, Terroristic Threatening in the First Degree, and Abuse of a Family or Household Member. Mahuka raises two points of error, contending that: (1) the Circuit Court committed plain error when it failed to instruct the jury on the lesser included offenses of Terroristic Threatening in the Second Degree and Harassment; and (2) he was deprived of his constitutional right to effective assistance of counsel.
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, we resolve Mahuka's points of error as follows:
(1) Mahuka maintains that the Circuit Court committed plain error when it failed to instruct the jury on the lesser included offenses of Terroristic Threatening in the Second Degree and Harassment to Count Three, Terroristic Threatening in the First Degree. Mahuka contends that based on his testimony that he did not threaten the complaining witness with any knives, there was a rational basis in the evidence warranting a jury instruction as to the lesser included offenses. Mahuka further claims that the jury was not given the opportunity to consider the lesser included offenses, and therefore, the Circuit Court's plain error "contributed to [Mahuka's] conviction of Terroristic Threatening in the 1st Degree, " thereby denying Mahuka's fundamental rights, and mandating that his conviction be vacated and a new trial ordered.
"It is well settled that the trial court must correctly instruct the jury on the law, " in order to "insure the jury has proper guidance in its consideration of the issues before it." State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980). Furthermore, in our judicial system, "the trial courts, not the parties, have the duty and ultimate responsibility to insure that juries are properly instructed on issues of criminal liability." State v. Haanio, 94 Hawai'i 405, 415, 16 P.3d 246, 256 (2001) (citations omitted). As articulated by the Hawai'i Supreme Court in Haanio, "trial courts are duty bound to instruct juries sua sponte regarding lesser included offenses, having a rational basis in the evidence." 94 Hawai'i at 415, 16 P.3d at 256 (citation, internal quotation marks, ellipsis, and footnote omitted). This is true "despite any objection by the defense, and even in the absence of a request from the prosecution." Id. at 414, 16 P.3d at 254. "[I]n the absence of such a rational basis in the evidence, " however, "the trial court should not instruct the jury as to included offenses." State v. Kinnane, 79 Hawai'i 46, 49, 897 P.2d 973, 976 (1995). Accordingly,
the trial court's failure to give appropriate included offense instructions requested by a party constitutes error, as does the trial court's failure to give an appropriate included offense instruction that has not been requested. Such error, however, is harmless when the jury convicts the defendant of the charged offense or of an included offense greater than the included offense erroneously omitted from the instructions. The error is harmless because jurors are presumed to follow the court's instructions, and, under the standard jury instructions, the jury, in reaching a unanimous verdict as to the charged offense or as to the greater included offense, would not have reached, much less considered, the absent lesser offense on which it should have been instructed.
Id. at 415-16, 16 P.3d at 256-57 (citations, internal quotation marks, brackets, and footnote omitted; emphasis added).
Harassment is not an included offense of Terroristic Threatening in the First Degree. State v. Burdett, 70 Haw. 85, 86, 762 P.2d 164, 165 (1988) . With respect to Terroristic Threatening in the Second Degree, Haanio is dispositive. Notwithstanding Mahuka's argument that the jury was not given the opportunity to expressly and separately consider the lesser included offenses of Terroristic Threatening in the Second Degree and Harassment, the jury found Mahuka guilty of the charged offense in Count Three, Terroristic Threatening in the First Degree. Accordingly, any error in the Circuit Court's failure to instruct the jury as to a lesser included offense was harmless.
(2) Mahuka argues that his trial counsel provided ineffective assistance of counsel, contending that his attorney: (1) failed to object to or cross-examine the competency of the minor witness (Minor); (2) raised no objections during the State's opening statements and closing arguments, including the deputy prosecuting attorney's misstating of the evidence during closing arguments; (3) did not object or cross-examine any of the State's exhibits, readily stipulated to the admission of all of the State's exhibits, and made no attempts to question the validity of the evidence, conducted no voir dire of any of the State's witnesses on the exhibits that were offered into evidence, and failed to object to the "shear repetitiveness" of the State's exhibits and what they were offered to prove; (4) posed only two objections during the State's case-in-chief, and failed to object to leading questions, speculations, hearsay testimonies, questions and testimonies lacking foundations, questions asked and answered, cumulative testimony, irrelevance, misstating of the evidence, prejudice under HRE Rule 403, testimony beyond the scope of the witnesses' personal knowledge, and the deputy prosecuting attorney's testifying rather than asking questions; (5) failed to object to the jury instructions; (6) failed to cross-examine the State's witnesses; and (7) conducted cross-examination which was "perfunctory, showed lack of preparation and often elicited testimony damaging to his client and reiterated the same responses asked by the State."
Without specification, Mahuka claims that these errors "resulted in either the withdrawal or substantial impairment of a potentially meritorious defense, " and further maintains that "[defense counsel] should have demanded that the State ...