State v. Forster

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-MAR-2021
07:53 AM
Dkt. 79 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEAL
OF THE STATE OF HAWAI#I

STATE OF HAWAII, Plaintiff-Appellee,
v.
KARL L. FORSTER, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC161001251)

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

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,

1
At the time of the offense, HRS § 707-702 (1)(a) provided that, "A
person commits the offense of manslaughter if: (a) The person recklessly
causes the death of another person[.]" Manslaughter is a class A felony. Id.

2
The Honorable Todd W. Eddins presided.

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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-XX-XXXXXXX, 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

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Substituted jury instructions 1.5 ("Direct and Circumstantial
Evidence; Weight of the Evidence") and 1.6 ("Credibility of Witnesses") were
included in the point of error, then subsequently withdrawn in the Argument
Section of the Opening Brief (OB). Accordingly, we do not address these
instructions.

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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.

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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 matters are entirely up to you.

This argument is also without merit. The inserted language,
"such inferences therefrom as may be justified by reason and

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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

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1.3 pertinently stated, "The evidence from which you are to
decide what the facts are consist [sic] of the following: 1. The under oath
testimony of witnesses, both on direct and cross examination, regardless of
who called the witness; 2. The exhibits that have been received into
evidence." 1.1 correctly conveyed the jury's duty to them.
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HAWJIC 3.02 states:

You must presume the defendant is innocent of the charge against
him/her. This presumption remains with the defendant throughout
the trial of the case, unless and until the prosecution proves the
defendant guilty beyond a reasonable doubt.

The presumption of innocence is not a mere slogan but an essential
part of the law that is binding upon you. It places upon the

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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 reasonable doubt is
exactly what it is, a doubt that is reasonable. You must
use your common sense and the rational faculties and
logical processes of your mind to determine whether you
have a doubt that is reasonable.

All doubts are not reasonable. A fanciful, imaginary,
or purely speculative doubt is not a reasonable doubt. A
doubt based upon sympathy or prejudice is also not a
reasonable doubt.

prosecution the duty of proving every material element of the
offense charged against the defendant beyond a reasonable doubt.

You must not find the defendant guilty upon mere suspicion or upon
evidence which only shows that the defendant is probably guilty.
What the law requires before the defendant can be found guilty is
not suspicion, not probabilities, but proof of the defendant's
guilt beyond a reasonable doubt.
What is reasonable doubt?

It is a doubt in your mind about the defendant's guilt which
arises from the evidence presented or from the lack of evidence
and which is based upon reason and common sense.
Each of you must decide, individually, whether there is or is not
such a doubt in your mind after careful and impartial
consideration of the evidence.
Be mindful, however, that a doubt which has no basis in the
evidence presented, or the lack of evidence, or reasonable
inferences therefrom, or a doubt which is based upon imagination,
suspicion or mere speculation or guesswork is not a reasonable
doubt.
What is proof beyond a reasonable doubt?
If, after consideration of the evidence and the law, you have a
reasonable doubt of the defendant's guilt, then the prosecution
has not proved the defendant's guilt beyond a reasonable doubt and
it is your duty to find the defendant not guilty.
If, after consideration of the evidence and the law, you do not
have a reasonable doubt of the defendant's guilt, then the
prosecution has proved the defendant's guilt beyond a reasonable
doubt and it is your duty to find the defendant guilty.

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A reasonable doubt is a doubt based on your reason and
common sense. It arises from the evidence, a lack of
evidence, and the reasonable inferences that emerge.
Through reason you must decide whether your mind is free or
not free of a reasonable doubt.
Proof beyond a reasonable doubt is a very high
standard for the Prosecution to satisfy. However, the
Prosecution's heavy burden does not mean it must prove the
elements of a crime beyond all possible doubt or to an
absolute certainty. You must not base your decision on a
proposition that anything is possible or nothing is certain.

If, after fair and impartial consideration of all the
evidence and the law, you do not have a reasonable doubt of
Karl Forster's guilt, then the Prosecution has proved his
guilt beyond a reasonable doubt and it is your duty to find
Karl Forster guilty.
On the other hand, if, after fair and impartial
consideration of all the evidence and the law, you have a
reasonable doubt of Karl Forster's guilt, then the
Prosecution has not proved his guilt beyond a reasonable
doubt and it is your duty to find Karl Forster not guilty.

Forster first challenges the Circuit Court's omission
of the HAWJIC 3.02 language, "the presumption of innocence is not
a mere slogan but an essential part of the law that is binding
upon you." Forster contends an explicit instruction that the
presumption of innocence is the "critical starting point" for the
jury's consideration of the evidence was necessary. Forster also
objects to the omission of paragraph 36 of HAWJIC 3.02, and to
Paragraphs 3, 4, and 5 of 1.2, which all concern reasonable
doubt.
This court considered and rejected similar challenges
to an identically worded instruction in Char, 2020 WL 7028600, at
*2-5. In this case, 1.2 included the following: "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 Circuit
Court also instructed: "The presumption of innocence requires

6
Omitted HAWJIC Paragraph 3 states: "You must not find the
defendant guilty upon mere suspicion or upon evidence which only shows that
the defendant is probably guilty. What the law requires before the defendant
can be found guilty is not suspicion, not probabilities, but proof of the
defendant's guilt beyond a reasonable doubt." HAWJIC 3.02, quoted supra note
5.

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the Prosecution to prove every element of the offense charged
against Karl Forster beyond a reasonable doubt. He does not have
to prove anything." In addition, the Circuit Court instructed:
"Proof beyond a reasonable doubt is a very high standard for the
Prosecution to satisfy." In paragraphs 3 and 4, the Circuit
Court explained the phrase "reasonable doubt," and further stated
that a doubt that was "fanciful, imaginary, or purely
speculative," or "based upon sympathy or prejudice" was not a
reasonable doubt. In paragraph 5, the Circuit Court instructed
that a reasonable doubt is one "based on your reason and common
sense," arising from "the evidence, a lack of evidence, and the
reasonable inferences that emerge." Viewing the Circuit Court's
instructions as a whole, we conclude that the court correctly
conveyed the concepts of the presumption of innocence and
reasonable doubt, and sufficiently conveyed the importance of
these concepts. See Victor, 511 U.S. at 5; Sawyer, 88 Hawai#i at
335, 966 P.2d at 647.
Forster further argues that the challenged instruction
may be erroneous because, in its last two paragraphs, the
"instruction for finding the defendant guilty comes before the
instruction to find him not guilty, and their order should be
reversed" as it is in HAWJIC 3.02. He asserts that "maintaining
the order of 'not guilty' before 'guilty' comports with the
presumption of innocence principle." And he maintains that
placing the "guilty instruction" first "constitutes a subliminal
message in support of a presumption of guilt and undermines the
requirement of proof beyond a reasonable doubt."
Forster does not cite any Hawai#i authority to support
this argument, and we have found none. In Char, 2020 WL 7028600
*4, we rejected this argument, noting that courts in other
jurisdictions have rejected similar claims regarding the order in
which "guilty" and "not guilty" have appeared on verdict forms.
See e.g., Rowland v. State, 829 S.E.2d 81, 89 (Ga. 2019) ("Nor
did the order in which 'guilty' and 'not guilty' were listed on
the verdict form, when viewed in light of the rest of the court's

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instructions, mislead the jury."); Commonwealth v. Pi Delta Psi,
Inc., 211 A.3d 875, 888 Pa. Super.), appeal denied, 221 A.3d 644
(Pa. 2019) (concluding that a verdict slip that listed "Guilty"
before "Not Guilty" "did not infringe upon the [defendant's]
right of presumed innocence" and, thus, "no Due Process violation
occurred, and no appellate relief is due"); State v. Hayes, 462
P.3d 1195, 1207 (Kan. Ct. App. 2020) ("The district court did not
err by placing the guilty option above the not guilty option in
the verdict form given to the jury."). Forster's challenge to 1.2
on this ground, is without merit.
Forster's final objection to 1.2 is the omission of
HAWJIC 3.02 paragraph 6, which instructs that each juror must
"individually" decide whether there was reasonable doubt after
"careful and impartial consideration of the evidence." However,
the Circuit Court did include this language at the end of its
instructions, regarding jury deliberations:

Each of you must decide the case for yourself, but you
should do so only after you've considered all the evidence,
discussed the evidence fully with the other jurors, and
listened to the views of all the other jurors. It is your
duty to approach your decision with open minds. . . .

. . . .

Your verdict must arise from your conscientious
review of the facts and the law, the application of your
reason and common sense, and your recognition of the
importance of the oath you took as a juror to try this case
fairly, impartially, and honorably.

Viewing the instructions as a whole, the challenged 1.2 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.

Remaining Instructions 1.3, 1.4, 1.7, 2.1A, 2.2, and 2.4

Forster does not provide substantive objections or
specific authority as to the remainder of the instructions he
includes in his point of error, and instead provides suggestions
as to how the language could be improved, by underscoring

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language he believes should be added, and bracketing and striking
through language he believes should be removed.
As to 1.3 ("What is Evidence"), Forster has "no
objections to the substance" but offers two suggestions. We do
not address suggestions on appeal.
As to 1.4 ("What is Not Evidence"), Forster explains
that his suggested edits are for "clarification"; Forster also
contends that the jury must be told that they will not be given
written copies of the preliminary instructions that the Circuit
Court gave, and argues that the preliminary instruction regarding
objections and rulings on objections was only given verbally and
should have also been in writing. These are only generalized
complaints about the form of instructions to the jury, and no
prejudicial error or insufficiency is identified.
As to 1.7 ("Witnesses"), Forster contends that the
language of the corresponding HAWJIC should have been used,
because they "'flow' better and are more understandable[.]" No
prejudicial error or insufficiency is identified.
As to 2.1A ("Defendant's Fifth Amendment Invocation at
Trial"), Forster suggests his own edited language and also
contends that the following language, again with his own
suggested edits, was harmfully omitted from 2.1A:

Karl Forster also has a constitutional right not
to present any evidence. You must not draw any inference
of guilt, or any [unfavorable inference] inference
unfavorable to him because he [decided] did not [to]
present any evidence in this trial. You must not comment,
discuss, or consider this decision in your deliberations.

(Strikethroughs, brackets, and underscoring in original from the
OB.) The Circuit Court, however, did adequately instruct the
jury, as follows: "Karl Forster has no duty or obligation to
present any evidence or call any witnesses[,]" and also
instructed that:

Karl Forster has a constitutional right not to
testify. You must not draw any inference of guilt or any
inference unfavorable to him because he decided not to

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testify in this trial. You must not comment, discuss, or
consider this decision in your deliberations.

There was no prejudicial error or omission as Forster contends.
As to 2.2 ("Defendant's Statements"), Forster suggests
a series of modifications, explains that the instruction was
confusing due to a compound question, and claims that the
instruction improperly asked the jury to speculate about whether
Forster "clearly express[ed] what he intended to say." This is a
misreading of the Circuit Court's language; the instruction did
not invite or instruct the jury to speculate. Aside from the
complaint of speculation, no other prejudicial error or
insufficiency is identified.
As to 2.4 ("Expert Testimony"), Forster objects to the
Circuit Court's phrasing as "'legalese-y' and vague" and proposes
his own modification. No prejudicial error or insufficiency is
identified.
As set forth above, with a couple of noted exceptions,
Forster's suggestions on the remaining challenged instructions in
his point of error are non-substantive and stylistic in nature,
with no reliance on any specific legal authority. In Forster's
argument section, Forster only relies on general principles from
State v. Kupau, 76 Hawai#i 387, 395, 879 P.2d 492, 500 (1994),
regarding the duty of the trial court to instruct the jury in a
"clear and intelligent manner," so that the jury has a "clear and
correct understanding of what it is they are to decide[.]" The
record as a whole reflects that the Circuit Court instructed the
jury in a clear and intelligent manner, and the jury was given a
clear and correct understanding of their duties, and what they
were to decide. See Kupau, 76 Hawai#i at 395, 879 P.2d at 500.
Viewing the instructions as a whole, the challenged 1.3, 1.4,
1.7, 2.1A, 2.2, and 2.4 were not "incomplete or confusing,"
Sawyer, 88 Hawai#i at 335, 996 P.2d at 647, and not
"prejudicially insufficient, erroneous, inconsistent or
misleading." Nichols, 111 Hawai#i at 334, 141 P.3d at 981.
The standard of review that we must apply is not

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whether individual instructions could be improved from Forster's
point of view, but whether the instructions when read and
considered as a whole, are prejudicially insufficient, erroneous,
inconsistent, or misleading. See id. Although the Circuit Court
deviated from HAWJIC, the substituted jury instructions, when
considered as a whole, were not erroneous.
For these reasons, we affirm the Judgment of Conviction
and Sentence, and Notice of Entry, and the Mittimus, Warrant of
Conviction, entered on October 2, 2018, in the Circuit Court of
the First Circuit.

DATED: Honolulu, Hawai#i, March 8, 2021.
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Phyllis J. Hironaka
Deputy Public Defender /s/ Clyde J. Wadsworth
for Defendant-Appellant Associate Judge

Chad Kumagai /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
for Plaintiff-Appellee

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