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State v. Wagner

Supreme Court of Hawaii

May 4, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
JOHN A. WAGNER, JR., Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0000056; CR. NO. 11-1-001K)

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          AMENDED OPINION

          RECKTENWALD, C.J. [1]

         John A. Wagner, Jr., seeks review of his conviction and sentence for one count of methamphetamine trafficking in the first degree, and two counts of prohibited acts related to drug paraphernalia. The Circuit Court of the Third Circuit[2] (circuit court) sentenced Wagner to twenty years' imprisonment on the methamphetamine trafficking charge, and imposed a mandatory minimum term of thirteen years and four months because Wagner had a prior conviction for methamphetamine trafficking. The Intermediate Court of Appeals (ICA) affirmed the circuit court's Judgment of Conviction and Sentence, and Wagner sought review in this court.

         We conclude that the circuit court incorrectly construed Wagner's prior conviction as an element of the offense. As a result, information about Wagner's prior conviction was submitted to the jury in a stipulation, thus unnecessarily subjecting Wagner to potential prejudice due to the jurors learning of his prior felony conviction. Accordingly, we vacate the ICA's January 26, 2016 judgment on appeal, and remand to the circuit court for a new trial.

         I. Background

         A. Circuit Court Proceedings

         This case arises from a police search of Wagner's residence on December 23, 2010, executed pursuant to a search warrant. During the search, the police found 45.3 grams of a "crystalline substance" and drug paraphernalia. That same day, Wagner was arrested for methamphetamine trafficking and possession of drug paraphernalia.

         On December 27, 2010, Wagner was initially charged with four counts relating to the events of December 23, 2010. The State filed an Amended Complaint on December 28, 2011, and a Second Amended Complaint on September 4, 2012, alleging three counts.[3] In Count I, Wagner was charged with methamphetamine trafficking in the first degree in violation of Hawai'i Revised Statutes (HRS) § 712-1240.7(1) (a) (Supp. 2006), alleging that Wagner knowingly possessed one ounce or more of methamphetamine "with one prior conviction for Methamphetamine Trafficking." Counts II and III both alleged that Wagner "used, or possessed with intent to use, drug paraphernalia, zip packet(s) and/or scale(s) and/or straw(s), to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance" in violation of HRS § 329-43.5 (Prohibited Acts Related to Drug Paraphernalia).

         1. Trial

         At jury trial, Wagner stipulated that he had a prior conviction for methamphetamine trafficking. However, the parties further agreed that the jury would not be advised that Wagner's prior conviction was for a methamphetamine trafficking offense, but rather only that it was a felony.

         The State's evidence at trial established that when the police arrived at Wagner's residence to execute its search warrant, Wagner and his fiancee, Deshalynn Pea, were on the lanai at the front of the house, and Wagner's mother and other family members were inside the residence. The State's evidence also established that the police found in Wagner's room prescription pill bottles with Wagner's name on them, and Wagner's wallet, which held his University of Hawai'i student identification card, his Visa card, and his social security card. The police also found Pea's wallet on the bed.

         Further, the State's evidence established that the "sixteen packets of a white crystalline substance" recovered from Wagner's room tested positive as approximately 45.38 grams, or about 1.6 ounces, of methamphetamine. The State also established that a methamphetamine smoking pipe, several zip packets, and a digital scale and straw, used to weigh and package drugs, were recovered from Wagner's room. Additionally, the State established that the residual contents found within the drug paraphernalia were methamphetamine. The State also established that in Wagner's room, $10, 000 in a "drug roll" was recovered from one of Wagner's shirt pockets, $967 was found on Wagner's bed, a notebook with drug slang terms written inside was recovered, and multiple cell phones with phone numbers affixed to the exterior, commonly used to facilitate drug dealings, were recovered.

         Just prior to the State resting its case, the court read the stipulated language relating to Wagner's prior conviction to the jury:

A conviction for Count 1 in this matter requires the prosecution to prove beyond a reasonable doubt the element that defendant [Wagner] has had one prior conviction for a felony prior to December 23rd, 2010. For purposes of Count 1 in this matter, the parties have stipulated that prior to December 23rd, 2010, [Wagner] was convicted of one felony offense.
The court then further instructed the jury:
You must not consider the prior conviction for any purpose other than conclusive proof beyond a reasonable doubt that [Wagner] was convicted of one felony offense. You must not speculate as to the nature of the prior conviction. You must not use any evidence of a prior conviction to conclude that because [Wagner] has had a prior felony conviction, that he is a person of bad character and therefore must have committed the offenses in this case.
In considering the evidence for the limited purpose for which it has been received, you must weigh it in the same manner as you would all other evidence in this case and consider it along with all other evidence in this case.

         Wagner testified in his own defense. Wagner admitted that he had previously used methamphetamine and was familiar with its effects, referring to himself as an "ex-addict." Wagner confirmed that methamphetamine was found in his room, but denied that it was his and stated that he had never seen it in his room before. Wagner further contended that the pipe found in his room did not belong to him.

         The following limiting instruction was given to the jury at the end of trial without objection:

You have heard evidence that the defendant at another time may have engaged in or committed other crimes, wrongs, or acts. This evidence may be considered only on the issue of the defendant's knowledge of methamphetamine, its packaging and paraphernalia, identity of the person who committed prior felony offense charged, and whether the alleged conduct resulted from a mistake or accident.
Do not consider this evidence for any other purpose. You must not use this evidence to conclude that because the defendant at another time may have engaged in or committed other crimes, wrongs, or acts, that he is a person of bad character, and therefore must have committed the offenses charged in this case.

         On September 13, 2012, the jury found Wagner guilty of all three charges. On September 18, 2012, the State filed a motion to impose a mandatory minimum term of imprisonment, pursuant to HRS § 712-1240.7(3) (a). The State argued that Wagner's previous conviction for methamphetamine trafficking "mandates the imposition of a mandatory minimum term of imprisonment of between six years, eight months and thirteen years, four months[.]"

         2. Sentencing

         On November 16, 2012, the court held a sentencing hearing. Before any substantive matters were addressed, Wagner orally moved to dismiss his counsel. The court then gave Wagner a copy of the State's motion to impose a mandatory minimum sentence and the presentence report, and recessed to give Wagner time to review the motion and "have a full understanding" of the proceeding.

         After the recess, [4] the court confirmed that Wagner was ready to proceed, and engaged in a colloquy with Wagner to determine if Wagner understood that he: (1) was at a disadvantage because he was not trained to represent himself; (2) would be subject to a prison sentence of up to thirty years with a mandatory minimum of up to thirteen years; (3) had the constitutional right to be represented by an attorney; and (4) had a right to court-appointed counsel. Wagner responded that he had no questions in general or about the possible sentence he faced.

         Wagner stated that his decision to waive his right to an attorney was voluntary, and the court found that he "voluntarily, intelligently, and knowingly" waived his right to be represented by an attorney. The court then discharged Wagner's counsel. When asked if Wagner had any response to the State's motion to impose a mandatory minimum sentence, Wagner stated "[n]o response."[5]

         The court granted the State's motion to impose a mandatory minimum sentence. The court then sentenced Wagner to twenty years' imprisonment for methamphetamine trafficking in the first degree, with a mandatory minimum term of thirteen years and four months; and five years for each count of prohibited acts related to drug paraphernalia, with the sentences running concurrently.

         On November 19, 2012, the court filed its Judgment of Conviction and Sentence. On December 12, 2012, Wagner was appointed counsel for purposes of appeal. On January 29, 2013, Wagner filed his notice of appeal.

         B. ICA Appeal

         After Wagner's appointed counsel filed an opening brief at the ICA, his counsel filed a motion to withdraw as Wagner's counsel. The ICA remanded the case to the circuit court, and the circuit court granted the motion to withdraw, but required Wagner's counsel "to remain as standby counsel" to advise Wagner regarding the "practice and procedure of the appellate courts."

         Wagner then filed a handwritten pro se opening brief with the ICA, arguing that the circuit court abused its discretion in allowing the introduction of his prior conviction in front of the jury at trial. Wagner argued that he was prejudiced by the introduction of his conviction, and contended that his stipulation should have "effectively remove[d] that element of the crime from the charge." Wagner argued that he faced unfair prejudice "[e]ven with the limited [sic] instructions . . . [.]"

         Wagner further argued that the circuit court erred by not giving curative instructions prior to the introduction of Wagner's prior bad acts. Wagner contended that the State and his counsel's "repetitious statements" regarding his criminal history "no doubt left an indelible mark upon the jury's memory [that] no instructions could cure."

         The State argued that the circuit court did not abuse its discretion by allowing the introduction of Wagner's prior conviction because Wagner stipulated to the conviction. The State asserted that the stipulation "was merely a stipulation that [Wagner] had a prior conviction so the State need not call additional witnesses merely to prove [Wagner] had a prior conviction. It was not a stipulation that the prior conviction would never be mentioned at trial."

         The ICA held that the circuit court did not abuse its discretion when it "allowed reading to the jury the parties' stipulation regarding Wagner's prior felony conviction" because the circuit court properly "followed the procedure mandated . . . where a defendant [stipulates] to a prior conviction for the same offense where such was an element of the current offense."

         Chief Judge Nakamura concurred with the result but wrote separately, arguing that under HRS § 712-1240.7, a defendant's prior methamphetamine trafficking convictions should be construed as a "sentencing enhancement factor for the judge to decide, " rather than an "element of the offense for the jury [to decide]." In his concurrence, Chief Judge Nakamura advanced three arguments in support of his position to construe the prior convictions as a sentencing factor.

         First, Chief Judge Nakamura argued that the plain language of HRS § 712-1240.7 supported his position, since a defendant's prior convictions are only referenced in the sentencing provision of the statute. Second, Chief Judge Nakamura argued that construing a defendant's prior conviction under HRS § 712-1240.7 as a sentencing factor would not contravene a defendant's right to a jury trial because it would fall squarely within the exception recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the fact of a prior conviction need not be submitted to the jury.[6] Third, Chief Judge Nakamura argued that construing a defendant's prior conviction as a sentencing factor would avoid the risk of unfair prejudice to the defendant due to the jury's knowledge of his or her previously convicted crime.

         However, Chief Judge Nakamura concluded that based on controlling case law, including State v. Domingues, [7] State v. Kekuewa, [8] State v. Ruggiero, [9] and State v. Murray, [10] the circuit court did not err in: (1) treating Wagner's prior conviction as an element of the offense; and (2) permitting the jury to be informed by stipulation that Wagner had a prior felony conviction.

         Therefore, the ICA affirmed Wagner's conviction and sentence. On January 26, 2016, the ICA entered its judgment on appeal.

         II. Standards of Review

         A. Admissibility Of Prior Bad Act Evidence

         Wagner argues that he was unfairly prejudiced by the introduction of his prior conviction, and suggests it should not have been submitted to the jury even with a limiting instruction.

"Prior bad act" evidence under [Hawai'i Rules of Evidence ([HRE])] Rule 404(b) is admissible when it is 1) relevant and 2) more probative than prejudicial. A trial court's determination that evidence is "relevant" within the meaning of HRE Rule 401 is reviewed under the right/wrong standard of review. However, a trial court's balancing of the probative value of prior bad act evidence against the prejudicial effect of such evidence under HRE Rule 403 is reviewed for abuse of discretion. An abuse of discretion occurs when the court clearly ...

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