Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Souza

Supreme Court of Hawaii

May 30, 2018

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
TRACY SOUZA, Petitioner/Defendant-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0002043; CRIMINAL NO. 12-1-1028)

          William H. Jameson, Jr. for petitioner

          McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

          OPINION

          POLLACK, J.

         In State v. Murray, 116 Hawai'i 3, 169 P.3d 955 (2007), this court held that if a defendant offers to stipulate to the prior conviction element of a charged offense, the trial court must accept the stipulation. This appeal arises from a challenge by Tracy Souza asserting that the circuit court refused to accept his offer to stipulate to his prior felony conviction, which constituted an element of an offense with which he was charged. We hold that the manner in which the circuit court addressed Souza's offer to stipulate to the prior conviction element was inconsistent with our decision in Murray. Because this error was not harmless beyond a reasonable doubt, we vacate the judgment and remand the case for further proceedings consistent with this opinion.

         I. BACKGROUND

         On July 16, 2012, Souza was charged by felony information in the Circuit Court of the First Circuit (circuit court) with place to keep unloaded firearms other than pistols and revolvers, in violation of Hawaii Revised Statutes (HRS) § 134-24 (hereinafter "place to keep firearm"), [1] and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) (hereinafter "prohibited possession of firearm").[2] Souza pleaded not guilty to the charges, and a jury trial was held.[3]

         A. Proposed Stipulation

         Prior to jury selection, the circuit court discussed with both parties the subject of a possible stipulation as to Souza's previous conviction of a felony offense. The court noted that both the State and Souza drafted proposed stipulations but that an agreement had not been reached as to which version would be used at trial. The court stated the following:

After reviewing both of the stipulations, it's my view, that, absent a specific agreement by both of you, then the State would be perfectly within its right to call whatever witnesses they felt are necessary and relevant --obviously it would be -- have to be approved and permitted by the Court -- to establish that element of a prior conviction.
And, so, with that, [defense counsel], has Mr. Souza arrived at any decisions as to whether or not he'll accept the State's version of the stipulation?

         Defense counsel responded, "Yes, " and indicated that he wished to make a record. Counsel stated that while the defense was seeking to exclude the naming of Souza's prior convictions, the State's stipulation included facts that were not elements of the offense of prohibited possession of firearm and therefore they were not relevant.[4] As an example, defense counsel cited paragraph 3 of the State's proposed stipulation--regarding Souza not having been pardoned of the prior conviction--as already covered by Souza's stipulation that he has a prior conviction. Counsel also pointed to paragraph 4 of the State's proposed stipulation--that Souza was prohibited from owning or possessing firearms as a result of his prior conviction--as being a statement of law and not an element of the offense. Additionally, defense counsel referenced paragraph 5 of the State's proposed stipulation--that Souza knew he was prohibited from owning or possessing any firearms--as also not being an element of the prohibited possession of firearm offense. Souza requested that, even if the defense did not agree to the State's proposed stipulation, the State be precluded from presenting evidence as to these matters. Defense counsel continued as follows:

My understanding is the State is proffering or would put up . . . Mr. Souza's former probation officer, to testify to the effect that Mr. Souza was instructed or informed or advised that he was prohibited from possessing. And, so, that not being relevant under 403 -- well, 401, 403, we'd ask that we not have to agree to that as well as the State not -- as well as the State be precluded from presenting that evidence.

         Although the State acknowledged that pursuant to State v. Murray the defense had the right to stipulate to the name and nature of the offense, the State asserted that it still needed to prove that it was a Hawai'i court that had issued the prior judgment. The State indicated that it intended to provide such proof by entering a certified, sealed judgment of the conviction subject to redaction. Defense counsel disagreed with the State that it was required to prove the jurisdiction of the court that rendered the prior judgment.[5]

         The State also contended that it needed to prove that Souza knew he was prohibited from owning or possessing firearms. Thus, the State would not agree to Souza's proposed stipulation because it did not want to be precluded from offering evidence as to what the State believed were elements of the offense that the State was required to prove to obtain a conviction. The court then inquired of the State whether it believed that, absent the stipulation, it would be entitled under caselaw to introduce the matters contained in its stipulation, or alternately, whether it intended to present evidence of such matters even with the stipulation. The State responded that it did not want the situation to be cast in a light where Souza was forced to accept its proposed stipulation and if that was the case it would withdraw its proposed stipulation. The State again acknowledged that Souza had the right under Murray to stipulate to preclude the name and nature of the prior conviction. At the same time, the State contended that, absent a broader stipulation, it would need to introduce evidence of Souza's state of mind with respect to the firearm prohibition. The State continued,

So ... I would intend to call the probation officer, not to discuss the name and nature of the prior offenses but just to establish that he did go over the terms and conditions of that probation and they did include the fact that he was prohibited from owning or possessing the firearm.

         Defense counsel disagreed that the State was required to prove that "Souza knew he was prohibited or even reckless about being prohibited from possessing" a firearm. Souza maintained that this state of mind is not an element of the offense of prohibited possession of firearm. And because knowledge or recklessness as to the statute's prohibition was not relevant to proof of the offense, defense counsel contended that the State should be precluded from calling the probation officer for such testimony.

         The court stated that it seemed the language in the felony information did involve Souza's state of mind. Defense counsel responded that Souza's stipulation included his state of mind as to having been convicted but not that Souza knew he was prohibited from owning or possessing a firearm. The court responded as follows:

THE COURT: Basically this is the situation, and if Mr. Souza, after discussing with you the pros and cons of the stipulation and the pros and cons of deciding not to agree to enter into the stipulation as proposed by the State --and it's his choice -- if he decides that he -- the stipulation as proposed is unacceptable to him, the Court is certainly not going to do anything to try to persuade him or convince him that, you know, he should do that.
That's entirely up to him. And so -- but if, however, he chooses, after thinking about it and talking to you about it, making a decision, and upon voir dire by the Court that that's what he wants to do, then the stipulation will stand as it is. So I'll give you some time to talk to him. But certainly prior to opening statement we'll reach a resolution on the stipulation.

         Defense counsel asked the court whether it was ruling that "Souza's state of mind with regard to . . . [paragraphs] 4 and 5 . . . that he knew he was prohibited from owning or possessing firearms or ammunition, that the Court is of the belief . . . that that is relevant." The court responded, "Yes."

         Following jury selection, the court asked the parties whether an agreement had been reached regarding the proposed stipulations. Defense counsel stated that "because of the court's rulings, " Souza was going to stipulate to the five enumerated paragraphs that the State proposed although he originally had no desire to do so.

         The court then conducted a colloquy, and Souza acknowledged that he agreed to the State's proposed stipulation. The court found that Souza voluntarily entered into the stipulation with the requisite knowledge and understanding.

         B. Trial Testimony

         On July 11, 2012, Dennis Crail, a security agent for the Board of Water Supply, responded to a report of homeless people or trespassers on state property located at 2530 Likelike Highway.[6] While searching the property, Crail discovered a blue tent that was situated on Board of Water Supply land. Crail testified that he was approximately thirty feet from the tent when he saw a male exit that tent. The male had his back turned toward him, Crail stated, but the male later turned sideways, allowing Crail to see the side of his face. Crail later identified the male as Souza. Crail acknowledged that he had not seen Souza prior to the incident.

         According to Crail, Souza was carrying in his hand what appeared to be a rifle case. Crail observed Souza take something out of the case and hold it in his right hand; when Souza raised his hand, Crail could see the stock of a rifle. Crail testified that he saw Souza hold the rifle for about three minutes. Crail then retreated a safe distance and called 911. Crail later learned that there were two other persons with Souza-a male and a female--but testified that he was sure he saw Souza with the rifle.

         Brianna Lincoln-Chong, who was with Souza on the day he was arrested, testified that she and Souza had arrived at the wooded area on Likelike Highway earlier that day. Souza went to check hunting traps, and then she and Souza hiked to a campsite. When the police arrived, Souza was asleep. Chong stated that Souza never had the rifle in his possession during the entire time from when she arrived at the campsite until John Wilcox arrived. Chong explained that Wilcox asked her if she had seen a case for the rifle and that Wilcox had the rifle in his hand at that time.[7]

         Chong acknowledged that in her statement to police she wrote that only Souza had possession of the rifle and that the rifle was brought out when she and Souza left for the hike and put back into the case when they reached the campsite. However, she explained that when she made the statement, she was scared and felt threatened by the possibility of going to jail. Chong testified that she had been handcuffed and held for questioning and that she was not allowed to leave until she made a statement. She stated that she told the police that she did not know whose rifle it was and did not initially include in the statement anything about Souza holding it. Chong testified that the police made her add at the end of her statement that Souza had possessed the rifle.[8] Because she had never been in trouble or been arrested before, Chong said, she "just cooperated and did whatever [the police] wanted [her] to do" in order to leave the police station. Chong acknowledged that Souza is a family friend and that she did not want to testify because she felt she could be the reason for Souza going to jail.

         John Wilcox testified that he and Souza had found the rifle in the bushes the day earlier when they were pig hunting. Wilcox stated he had picked up the rifle and put it in the bushes where he and Souza were camping.

         The next day when Wilcox arrived at the campsite, Souza was asleep in the tent. Wilcox testified that he retrieved the rifle from the bushes. A little while later, he heard tires screeching, saw the police officers, ran back to the tent, and woke Souza up. Wilcox asked Souza what he should do with the rifle, and Souza said to get rid of it. Wilcox put the rifle back in the bushes where he had placed it earlier. He testified that Souza never handled the rifle and that he had never seen Souza pick it up. He further testified that he understood it was possible that he could get in trouble by testifying. And although Souza was his friend, Wilcox explained he was not making up a story to help Souza.

         On cross-examination, Wilcox indicated that the rifle did not have a magazine, nor was it loaded when it was found. Wilcox stated that at no point was the rifle fired either on the day it was found or on the following day. Wilcox acknowledged that he did not have a license or permit to carry or acquire the rifle. Wilcox also related that he had known Souza for a little over a year and they were friends and did side jobs together.

         C. Stipulation and Jury Instructions

         At the end of the State's case-in-chief, the circuit court informed the jury that the State and Souza had reached a stipulation and that the stipulated facts were true and accurate and would be admitted into evidence in lieu of other evidence or testimony. The court then read the stipulation as follows:

It is hereby stipulated to by and between Defendant Tracy Souza . . . and the State of Hawai'i . . . that the following facts are true and accurate and will be admitted into evidence during trial of the above-entitled matter in lieu of other evidence or testimony.
1) As of July 11, 2012, the defendant, Tracy Souza, had been convicted of a felony offense in the state of Hawaii.
2) As of July 11, 2012, the defendant, Tracy Souza, knew that he had been convicted of a felony offense in the state of Hawaii.
3) The defendant, Tracy Souza, has not been pardoned for such felony offense.
4) As a result of this conviction, the defendant, Tracy Souza, is prohibited from owning or possessing any firearms or ammunition.
5) As a result of this conviction, the defendant, Tracy Souza, knew that he was prohibited from owning or possessing any firearms or ammunition.

         The court then advised the jury that one of the elements of prohibited possession of firearm is referred to as the "prior conviction element" and requires the State to prove that Souza was previously convicted of a felony. The court explained that the State and Souza had stipulated to this element, meaning that both sides agreed that Souza has a prior felony conviction. The court stated that based on this stipulation the jury must accept as proven beyond a reasonable doubt the prior conviction element.[9]

         At the conclusion of the evidence, the court instructed the jury on the elements of the offense of prohibited possession of firearm. The court reiterated that the State and Souza had stipulated to the prior conviction element, meaning that both sides agreed that Souza has a prior felony conviction, and that this element must be accepted as proven beyond a reasonable doubt.

         The jury found Souza guilty of both charged offenses. Souza was sentenced to five years of probation in each count, with the terms to run concurrently. As part of Souza's probation sentence, the court imposed concurrent jail terms of thirty days with credit for time served. Souza filed a notice of appeal to the Intermediate Court of Appeals (ICA) from the Judgment of Conviction and Probation Sentence (judgment).

         II. ICA PROCEEDINGS

         In his opening brief, Souza contended that he offered to stipulate to the prior conviction element of the prohibited possession of firearm charge but that the circuit court refused to accept his stipulation unless he agreed to the State's proposed stipulation.[10]

         Souza explained that he and the State discussed his intent to admit to his prior felony conviction and to his knowledge of that conviction, but that they differed as to agreeing to other matters in the stipulations. Souza noted that the State made it clear that if he did not accept its stipulation it would call a witness to establish that Souza knew his prior conviction prohibited him from owning or possessing firearms. Souza added that the State informed the court that it would also seek to admit a redacted version of the certified judgment of the prior felony conviction to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.