FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-OCT-2021
07:52 AM
Dkt. 166 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
DOUGLAS M. CARDENAS, Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC151000320)
OCTOBER 28, 2021
GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.
OPINION OF THE COURT BY NAKASONE, J.
Defendant-Appellant Douglas M. Cardenas (Cardenas)
appeals from the Judgment of Conviction and Probation Sentence,
and Notice of Entry (Judgment) filed on January 12, 2016 by the
Circuit Court of the First Circuit (Circuit Court).1 Following a
jury trial, the Circuit Court convicted Cardenas of Interference
with the Operator of a Public Transit Vehicle (Interference With
Bus Operator) in violation of Hawaii Revised Statutes (HRS) §
1
The Honorable Rom A. Trader presided.
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711-1112(1)(b) (2014),2 and sentenced Cardenas to probation with
a twelve-day jail term with credit for time served.
On appeal, Cardenas contends that: (1) the jury
instruction on the Interference With Bus Operator offense was
prejudicially erroneous and misleading because it omitted the
requisite state of mind for commission of the offense; (2) the
omission of an Arceo3 unanimity instruction was prejudicially
erroneous and misleading; and (3) the prosecutor committed
misconduct in closing argument by arguing that Cardenas was the
only person who had an incentive to lie.
Under the circumstances of this case, we exercise
jurisdiction over Cardenas's late-filed appeal where his counsel
was plainly ineffective for failing to timely file an appeal of
the judgment, and in the interest of justice where the record
also reflects Cardenas received inaccurate information regarding
the deadline for an appeal. We vacate and remand for a new trial
due to prosecutorial misconduct.
I. BACKGROUND
On March 2, 2015, the State charged Cardenas by felony
information with Interference With Bus Operator as follows:
2
In relevant part, HRS § 711-1112(1)(b) provides that:
(1) A person commits the offense of interference
with the operator of a public transit vehicle if the
person interferes with the operation of a public
transit vehicle or lessens the ability of the operator
to operate the public transit vehicle by:
....
(b) Threatening, by word or conduct, to cause
bodily injury to the operator of the public
transit vehicle with the intent to
terrorize, or in reckless disregard of the
risk of terrorizing the operator of the
public transit vehicle.
3
State v. Arceo, 84 Hawai#i 1, 30, 32-33, 928 P.2d 843, 872, 874-75
(1996) held that the right of an accused to a unanimous jury verdict in
criminal cases, guaranteed under the state and federal constitutions, requires
that if the prosecution presents evidence of separate and distinct culpable
acts, it must elect which act underlies the charge, or the trial court must
issue a specific unanimity instruction.
2
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On or about February 27, 2015, in the City and County
of Honolulu, State of Hawaii, DOUGLAS M. CARDENAS, did
interfere with the operation of a public transit vehicle or
lessen the ability of the operator to operate the public
transit vehicle by: threatening, by word or conduct, to
cause bodily injury to Ernest Lake, the operator of the
public transit vehicle in reckless disregard of the risk of
terrorizing said operator of the public transit vehicle,
thereby committing the offense of Interference with the
Operator of a Public Transit Vehicle in violation
of Section 711-1112(1)(b) of the Hawaii Revised Statutes.
(Bolding in original).
Trial Proceedings
The following facts were adduced at the September 14,
2015 jury trial, in which Cardenas was represented by a deputy
public defender. At 8:00 p.m. on February 27, 2015, Ernest Lake
(Lake), a bus driver for Oahu Transit Services, City and County
of Honolulu (The Bus), was driving on Wai#alae Avenue. Lake was
driving a "kneeling" bus that could be lowered to enable
passengers to board straight into the bus at sidewalk level. The
Bus's policy is that bus drivers automatically kneel the bus for
passengers who are children, elderly, carrying bags, using
disability equipment, or upon request. As Lake made an
authorized stop near Chaminade University, he could see 53-year-
old Cardenas, holding a blue pass for seniors or persons with
disabilities, even though Cardenas was not using disability
equipment. Cardenas boarded first, said nothing to Lake,
followed by two other passengers. Cardenas proceeded towards the
rear of the bus.
Lake was about to pull out into main traffic when he
noticed, in the rear view mirror, that Cardenas was now walking
towards the front of the bus. He stopped about an arm's length
away from Lake, straddling the yellow "standing line," behind
which passengers are required to stand. A bus driver could be
cited for driving with passengers standing in front of the
standing line. Visible from where Cardenas stood, were yellow
signs reading, "FOR PASSENGER SAFETY FEDERAL LAW PROHIBITS
OPERATION OF THIS BUS WHILE ANYONE IS STANDING FORWARD OF STAIRS
LINE," and "CAUTION FOR YOUR SAFETY DO NOT TALK TO OPERATOR WHILE
BUS IS IN MOTION."
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According to Lake, Cardenas stated to Lake: "I have a
disabled bus pass. Why didn't you F'in kneel the bus?" Lake
responded, "Sorry, sir, but we only kneel the bus upon request or
visual, and just to let you know, it's only upon request that we
do it. If you asked for it, I would have lowered it." Cardenas
took an aggressive stance and said, "Well, I am disabled. You do
what I F'n say." Lake suggested that Cardenas take a seat, and
Cardenas went to sit down in the mid-section of the bus,
muttering. As Lake pulled away from the curb, Cardenas again
came to the front, again straddling the standing line and
shouted, "I want to add one thing. I'm not a kid or a female you
can boss around or you can push around. I'm not that F'in blah,
blah, blah." Lake again asked Cardenas to take a seat and
Cardenas replied, aggressively and loudly, "I'm going to F'in
kick your ass." Lake warned Cardenas that if he continued to
talk to him that way while he was operating the bus, he was
"going to call," to which Cardenas responded, "Go ahead and F'in
call 'em. What the hell I care for? What the hell I care? Call
'em." Lake pressed the priority button which summoned the
police; he also told Cardenas to stop what he was doing. Lake
then stopped and secured the bus, called his supervisor, turned
on the emergency flashers, and exited the bus to distance himself
from Cardenas; Cardenas and the other passengers remained on
board. A few minutes later Honolulu Police Department (HPD)
police officers arrived and escorted Cardenas off the bus;
Cardenas was upset and yelling at the police as they arrested
him. Lake asked the remaining passengers if anyone wanted to
give a statement, but no one volunteered.
HPD Officer William Ellis (Officer Ellis) testified
that he was dispatched to tend to the "bus operator call on
Waialae Avenue." He spoke to Lake first, and then to Cardenas,
who was still seated on the bus. Cardenas was taken off the bus
and seated on the sidewalk. When Officer Ellis informed Cardenas
that Cardenas would be arrested for interfering with the bus
operator, Cardenas became "upset" and was "yelling," arguing,
"Why am I getting arrested?"
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Cardenas testified in his own defense as follows.
Cardenas sustained an injury from a 1987 vehicular accident,
resulting in chronic vertigo for which he took medication three
times a day. Thus, boarding the bus was difficult when Lake did
not kneel it for him. Cardenas held his pass in a way that the
driver could see he was prepared to board the bus. Cardenas
boarded first, waited until the two passengers behind him passed,
then walked up to the "do not pass front line," which Cardenas
acknowledged standing beyond may interfere with the driver's
operation of the vehicle, and confronted Lake as to why Lake did
not kneel the bus. Lake aggressively responded, "'Cause I don't
have to." Cardenas remarked, "Well, that's kinda sharp. Why are
you talking like that," to which Lake answered, "Shut up and sit
down." This upset Cardenas, who felt intimidated and perturbed
at the way Lake addressed him; nonetheless, he sat down. At the
next stop Cardenas approached the standing line again and told
Lake that he did not appreciate the way Lake spoke to him, that
it was out of line. Cardenas also told Lake that he has a
legitimate bus pass and a legitimate disability. Lake had not
driven a full block when he pulled the bus over, unbuckled his
seatbelt, jumped out of his seat, and got in Cardenas's face
without saying anything. Cardenas asked, "Are you threatening
me? Are you physically threatening me right now? Because you
can't do that." Cardenas turned to look at the passengers and
then back to Lake, who glared at him and walked off the bus.
Cardenas admitted speaking "sternly" to Lake, and conceded that
he should not have initially reacted to Lake's "insults," but
denied raising his voice, swearing, or threatening to "kick his
ass." Cardenas also acknowledged there was a sign advising not
to speak to the driver while the bus was in motion, and that he
continued to talk to Lake when the bus started moving.
On September 16, 2015, during the settling of jury
instructions, the Circuit Court withdrew its proposed Jury
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Instruction No. 35, the "Unanimity Instruction."4 Cardenas did
not object to the withdrawal.
During closing argument, the State argued that it had
proved that Cardenas interfered with the operation of the bus by
threatening Lake, and also urged that Cardenas was not credible
because Cardenas was the defendant:
[STATE]: Instead, what you're here to determine
and the question that you must answer is did the
defendant, Douglas Cardenas, threaten Ernest Lake
either by word or conduct.
And the answer to that question is yes to both,
both words, "I'm going to fuckin' kick your ass,"
and his conduct, standing within arm's reach of him
while the bus is moving, as Ernest described it,
posturing up in an aggressive stance right next to
Ernest Lake as he was driving that bus.
. . . .
And, finally, the probability of Ernest's
testimony. And, ladies and gentlemen, this testimony
makes perfect sense, and it's completely in line with
what a reasonable person would do particularly in the
sense that he was required to stop the bus because the
defendant presented a safety issue against both him and
his passengers when he said, "I'm going to fuckin' kick
your ass."
. . . .
Now, of course, it is the defendant who was at
trial. You are here for State of Hawaii versus Douglas
Cardenas. He has the most to lose in this case. He
has the biggest incentive to be untruthful. He's the
only person in this trial that has any incentive to be
untruthful.
. . . .
Ernest told you, Officer Ellis told you, even the
defendant told you that the bus had to be stopped after
the incident between he and Mr. Lake. He interfered with
the operation of that bus. He forced all of the
passengers to get on another bus, and he jeopardized both
4
Instruction No. 35 was based on Hawai#i Pattern Jury Instructions-
-Criminal (HAWJIC) 8.02, also known as the "unanimity instruction," which
states:
The law allows the introduction of evidence for the purpose
of showing that there is more than one [act] [omission]
[item] upon which proof of an element of an offense may be
based. In order for the prosecution to prove an element,
all twelve jurors must unanimously agree that [the same act]
[the same omission] [possession of the same item] has been
proved beyond a reasonable doubt.
6
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Ernest's safety and the safety of his passengers by
threatening him on that day.
Again, as I said earlier, the State has
proven that the defendant, by both word or conduct,
threatened to cause bodily injury against Ernest Lake.
The threat, "I'm gonna fuckin' kick your ass," the
conduct, his posture, his tone, his stance, being across
that yellow line within arm's reach of the defendant
while he was operating the vehicle.
(Emphasis added). The transcript reflects that Cardenas did not
object.
The jury found Cardenas guilty as charged the same day,
September 16, 2015. After the jury was discharged, Cardenas
expressed his desire for an appeal to the Circuit Court as
follows:
[THE COURT:] And the decisions I make as far as
sentencing does factor in the contents of that report to a
certain degree, but, also, I will be listening to arguments
by both sides and also considering any statements that you
might make at that time. And so I just want you to be fully
aware that we still have further process to go before this
matter is concluded.
And to the extent that, as you said –- indicated
you're disappointed, you're encouraged to consider any and
all other options to include appeal, if you'd like to.
DEFENDANT CARDENAS: May I address the Court with
that? I would like to file an appeal for ineffective
counsel.
THE COURT: All right. That's something you'll need
to take up with your attorney, [deputy public defender], and
as of right now, that's not an appropriate matter to address
at this time. Okay. All right. Thank you very much, and I
will see you in November.
DEFENDANT CARDENAS: Yes, sir.
(Emphasis added).
On September 25, 2015, the deputy public defender filed
a Motion to Withdraw as Counsel (Motion to Withdraw). The motion
contained a September 22, 2015 declaration by withdrawing counsel
that stated, "On September 16, 2015 a guilty verdict was returned
in the above entitled case. Upon setting the sentencing date,
Defendant indicated to the court that he wanted to appeal the
case based on ineffective assistance of counsel." (Emphasis
added).
At the October 13, 2015 hearing on the motion, the
Circuit Court granted the deputy public defender's motion to
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withdraw as counsel. On October 14, 2015, the Circuit Court
entered an Order Appointing Counsel, appointing counsel (First
Appointed Counsel or Counsel) to represent Cardenas.
On January 12, 2016, the Circuit Court sentenced
Cardenas to twelve days of jail with credit for time served and
referred him to four years of Hawai#i Opportunity Probation with
Enforcement (HOPE) probation. Cardenas was represented by First
Appointed Counsel at the sentencing hearing.
HOPE Probation Proceedings
Following the January 12, 2016 sentencing hearing and
entry of Judgment, the record reflects that the Circuit Court5
for HOPE probation (HOPE Circuit Court) held a HOPE warning
hearing on February 3, 2016. The transcript reflects that First
Appointed Counsel was not present with Cardenas because, as the
HOPE Circuit Court explained, the presence of defense counsel "is
waived during the [HOPE] warning[.]"6 During the HOPE warning
hearing, Cardenas raised the issue of the absence of counsel at
the hearing, and inquired how to file an appeal:
THE COURT: Do you understand everything that
I've just said to you about HOPE probation?
DEFENDANT CARDENAS: Yes, I do.
THE COURT: Do you have any questions about
what your agreement with me is?
DEFENDANT CARDENAS: Yes, I do.
THE COURT: What are they?
DEFENDANT CARDENAS: I'm curious why I'm in
this courtroom instead of standard provision because my
case had nothing to do with alcohol or drugs; and the
only test given to me, there was a zero result. So I'm
feeling like I'm being -- I'm being, you know, set aside.
THE COURT: I see that you're before me on an
interference case.
DEFENDANT CARDENAS: That's correct. Yes, sir.
5
The Honorable Edward H. Kubo, Jr. presided over the HOPE probation
proceedings.
6
We do not express any opinion as to the propriety of the absence
of defense counsel at this HOPE warning hearing.
8
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THE COURT: That's a Class C felony.
DEFENDANT CARDENAS: Yes, sir, it is.
THE COURT: So I have also been receiving
people who have been assigned to HOPE who also may have
anger issues.
DEFENDANT CARDENAS: That is the case. I was
asked to see anger management.
THE COURT: So you may go downstairs; and if --
and if they determine that drugs or alcohol is not an
issue in this case, then -- then your -- your program
will be a little bit different.
DEFENDANT CARDENAS: Okay. So you're saying I
need to speak to my probation officer about this?
THE COURT: Yes.
DEFENDANT CARDENAS: Very good.
Last thing: Why was I not allowed to have
representation here?
THE COURT: You have -- you can call
representation --
DEFENDANT CARDENAS: I was assigned one by the
court, but he's not here.
THE COURT: Yes. Because the presence of the
public defender is waived during the warning, and this is
just a warning.
DEFENDANT CARDENAS: How do I file an appeal?
THE COURT: You can file at any time.
DEFENDANT CARDENAS: Because, again, as I
mentioned, the reason that I don't believe I belong in
this courtroom is one grounds for my appeal. The other
one would be ineffective counsel.
THE COURT: Then you need to contact the
probation office -- officer; and after contacting the
probation officer, your next job is to reach out and talk
to your attorney and take it from there.
DEFENDANT CARDENAS: Very good, sir.
Thank you very much for that information.
THE COURT: And if there's any further problems
after that, you have the right to -- to go over the
attorney's head to the attorney's boss if you feel that
you're not getting complete -- if you're not completely
satisfied with the results given to you by your attorney.
DEFENDANT CARDENAS: Yes, of course.
THE COURT: Okay.
(Emphases added). The HOPE Circuit Court told Cardenas he could
file an appeal "at any time."
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At the point the February 3, 2016 HOPE warning hearing
occurred, Cardenas's deadline to file an appeal from the January
12, 2016 Judgment had not yet expired. The 30-day deadline was
February 11, 2016. No notice of appeal was filed by the February
11, 2016 deadline.
The circuit court record reflects that the next circuit
court proceeding that occurred was on November 7, 2017, for a
Motion for Modification of the Terms and Conditions of Probation,
for Cardenas's alleged failure to report to his probation officer
First Appointed Counsel represented Cardenas at this hearing.
Cardenas, with First Appointed Counsel, admitted to the violation
and waived his right to a contested hearing on the motion. The
HOPE Circuit Court counseled and released Cardenas to continue on
HOPE probation, without sanction, after hearing Cardenas's
explanation for missing the probation appointment. The HOPE
Circuit Court entered its November 7, 2017 Order Granting Motion
for Modification of Terms and Conditions of Probation (Order
Granting Modification).
Appellate Proceedings
On December 7, 2017, almost twenty-two months after the
February 11, 2016 appeal deadline for the January 12, 2016
Judgment had passed, Cardenas filed a Notice of Appeal through
First Appointed Counsel, from the November 7, 2017 Order Granting
Modification.
On January 31, 2018, First Appointed Counsel filed a
motion for withdrawal and substitution of counsel, in which
Counsel stated in part, "Upon conversation with [Cardenas], it is
apparent that he wishes to increase the scope of this appeal."
On February 8, 2018, this court granted First Appointed
Counsel's motion for withdrawal and substitution of counsel and
temporarily remanded the case for the appointment of substitute
counsel.
On March 2, 2018, the Circuit Court appointed
substitute counsel (Second Appointed Counsel) to represent
Cardenas.
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On March 19, 2018, Cardenas filed a Motion for Leave to
File an Amended Notice of Appeal to include the January 12, 2016
Judgment because, according to Second Appointed Counsel, Cardenas
wished to appeal from the January 12, 2016 Judgment rather than
the November 7, 2017 Order Granting Modification; Cardenas's
failure to timely file a notice of appeal from the January 12,
2016 Judgment was First Appointed Counsel's fault; Cardenas would
not otherwise be allowed to appeal from the January 12, 2016
Judgment; and because "Hawai#i appellate courts have consistently
held that 'the interest of justice' requires that counsel's
failure to comply with procedural rule requirements should not
deprive the defendant of his right to appeal" in a criminal case.
On April 2, 2018, this court issued an Order to Show
Cause (OSC) to First Appointed Counsel to explain why the Notice
of Appeal from the January 12, 2016 Judgment was not timely
filed, and also granted Cardenas's request to allow a first
amended notice of appeal to be filed.
On April 4, 2018, a First Amended Notice of Appeal was
filed, which purported to appeal from the January 12, 2016
Judgment. Calculating the deadline from the February 11, 2016
appeal deadline to the December 7, 2017 date when the initial
Notice of Appeal was filed, Cardenas's appeal was 665 days late.
On April 12, 2018, First Appointed Counsel responded to
the OSC7 and declared, inter alia, that: First Appointed Counsel
7
First Appointed Counsel's April 12, 2018 Amended Declaration of
Counsel Regarding Order to Show Cause (OSC Declaration) states in full as
follows:
1. I was one of the court-appointed counsel for
Defendant-Appellant Douglas M. Cardenas in the instant
case.
2. I was appointed to represent him regarding his Circuit
Court criminal matter in October 2015.
3. During that time, we did briefly discuss his
sentencing and his concerns regarding the potential
for incarceration in his case.
4. My phone log indicates that there were some calls made
by me to him and some calls made by him to me during
this time.
5. Most if not all of our conversations took place at
(continued...)
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7
(...continued)
court rather than my office or at any other location.
6. Defendant-Appellant expressed to me that he was very
concerned that he might do some amount of prison time
for his offence.
7. His sentencing date was continued to January 12, 2016.
8. During this time on his behalf, I engaged in some
brief negotiation with the prosecutor's office
regarding the sentencing time.
9. I do recall that on January 12, 2016, there was some
discussion with Defendant-Appellant regarding
ineffective assistance of counsel and his desire to
pursue this issue. However, this particular issue did
not seem to be his primary concern. His main concern
at this hearing was his sentence and whether he would
go to prison.
10. Through his new counsel, Defendant-Appellant states
that he told me that I was appointed to file the
notice of appeal based upon ineffective assistance of
counsel and that I understood this purpose.
11. I disagree with this allegation. My primary objective
was to get the best possible sentence for
Defendant-Appellant.
12. During the sentencing hearing, I recall that
Defendant-Appellant was angry and agitated about the
events. He appeared not wanting to discuss this with
me due to his emotional state.
13. Immediately prior to the sentencing hearing, I recall
some discussion about a possible appeal regarding
ineffective assistance of counsel by Mr. Cardenas's
former public defender counsel, but this discussion
was not in depth or in any specific detail.
14. Throughout this entire process, we had no discussion
as to the specific issues regarding his former public
defender counsel.
15. Furthermore, I have no recollection of ever having
such a discussion.
16. During the sentencing hearing discussions at court, it
became apparent Defendant-Appellant did not want to
listen to what I had to say or take any of my advice
that was offered.
17. At the formal sentencing hearing, Mr. Cardenas was
sentenced to 4 years of HOPE probation and was not
incarcerated for any length of time.
18. After he received his sentence, he did not communicate
with me and abruptly left the courtroom.
19. Mr. Cardenas states I offered to discuss the case with
him at my office and that he declined to do so. This
means that I told him to stop by the office and that
(continued...)
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(...continued)
he did want to do so.
20. My best recollection is that we did not have any
arrangement to discuss these issues in my office after
the sentencing hearing.
21. After he got sentenced, he abruptly left the courtroom
when he was excused, therefore we had no substantive
discussion on the issue of ineffective assistance of
counsel.
22. However, it did seem that he was relieved that his
sentence did not include any incarceration period.
23. In the several weeks after his sentencing hearing, I
did not receive any letter, email, text or other
substantive communication with Defendant-Appellant.
24. I have examined my phone log and found that in early
Feb 2016, he did call my office and left a "call me
back" message with my answering service. However,
there was no substantive discussion with him. He did
not follow up on this Feb 2016 message. I did not get
anything more detailed from him during the remainder
of 2016.
25. Mr. Cardenas left a brief message in Jan 2017 stating
that he "wants an appeal" without any specifics. He
did not follow up on this Jan 2017 message. I did not
get anything more detailed from him during 2017 at
that time or ever.
26. Mr. Cardenas claims that we communicated sometime
after his sentencing and that he was informed that his
appeal was being handled.
27. I did not have any sort of conversation with Mr.
Cardenas with him at all until the November 2017 court
hearing.
28. Other that [sic] those two messages, he did not call
me, write me, email me, stop by my office, or
otherwise communicate with me.
29. In fact, Defendant-Appellant and I did not directly
communicate until November 7, 2017.
30. After the November 7, 2017 hearing, Defendant-
Appellant told me that the purpose in my appointment
was to file an appeal regarding ineffective assistance
of counsel and that was why I was appointed.
31. When he told me this, I was extremely concerned as
there was no understanding that I would pursue this
issue on his behalf.
32. I sought the advice of multiple criminal law
practitioners about what could be done at this stage.
33. I was informed that one could still file a HRCP [sic]
Rule 40 Motion regarding the issue of ineffective
assistance of counsel.
(continued...)
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(...continued)
34. The steps to do a Rule 40 motion were discussed with
other attorneys who understood the process.
35. At the time, it was felt that the best course of
action was to analyze the case and see what could be
done to remedy the situation.
36. On his behalf, I decided to file a Notice of Appeal on
December 7, 2017 even though it might only cover the
November 8, 2017 hearing.
37. Defendant-Appellant called my office on or about
January 10, 2018. From our brief conversation I
realized that he did not want to hear any advice that
I was going to provide him and that he didn't want to
hear my opinions.
38. At that moment, I realized that what Defendant-
Appellant really wanted was to expand the scope
of the appeal.
39. It seemed apparent that a careful analysis of the case
through the transcripts could either support an
appeal, a Rule 40 Motion, or some other remedy.
40. The transcripts were ordered and reviewed by me.
41. After much discussion of the case and situation with
many other attorneys, I came to a decision that there
was far too much conflict with the client to fully
represent him.
42. In my professional judgement, I came to the decision
to withdraw from the case in order to avoid possible
conflicts of interest.
43. I have done many appeals in the past and know the
importance of filing the Notice of Appeal in a timely
manner.
44. In this case, it appears that communication between
counsel and client broke down.
45. Defendant-Appellant refused to meet with me after he
was sentenced.
46. Defendant-Appellant didn't want to hear any of my
advice at his sentencing hearing.
47. It is my understanding that the one method to address
ineffective assistance of counsel is a non-appeal
approach by filing a Rule 40 motion.
48. In that sense, Defendant-Appellant can still address
concerns he had regarding his trial counsel as it
seems to be his main concern now.
(Emphases added).
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disagreed with Cardenas's claim that Counsel "was appointed to
file the notice of appeal based upon ineffective assistance of
counsel;" Cardenas refused Counsel's advice and "abruptly left
the courtroom" following the January 12, 2016 sentencing without
communicating with Counsel; that Cardenas's "main concern" at the
sentencing hearing was regarding his sentence and "whether he
would go to prison" and that there was "no substantive discussion
on the issue of ineffective assistance of counsel;" that Cardenas
called Counsel in early February 2016 and left a "call me back"
message, but Cardenas did not follow up on this message; Cardenas
left a message for Counsel in January 2017 stating that he wanted
to appeal but did not specify what he wanted to appeal; and
Cardenas did not communicate directly with Counsel until the
November 7, 2017 hearing on the Motion for Modification, to
indicate to Counsel that he wanted to appeal.8 However, the OSC
Declaration also acknowledges, in contradictory fashion, that on
and before the sentencing date, First Appointed Counsel and
Cardenas did discuss a possible appeal regarding ineffective
assistance of counsel.
On April 24, 2018, based on First Appointed Counsel's
response, we took no action on the OSC.
II. DISCUSSION
A. We review Cardenas's untimely appeal due to
First Appointed Counsel's plainly ineffective
failure to perfect Cardenas's appeal and in
the interest of justice.
The State argues in its Answering Brief that First
Appointed Counsel's OSC Declaration shows that Cardenas's failure
to file a timely notice of appeal appears to be Cardenas's fault
rather than Counsel's fault; and thus, a post-conviction petition
for relief pursuant to Hawai#i Rules of Penal Procedure (HRPP)
8
First Appointed Counsel's OSC Declaration does not indicate
whether Counsel called, or attempted to call, Cardenas back after Counsel
received the February 2016 "call me back" phone message; and the OSC
Declaration also does not indicate whether First Appointed Counsel attempted
to contact Cardenas after Cardenas's January 2017 message regarding an appeal.
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Rule 409 is the more appropriate vehicle to address Cardenas's
contentions. We do not agree that the OSC Declaration, and the
remaining record, show that Cardenas himself was responsible for
his counsel's failure to timely appeal the Judgment.
Hawai#i Rules of Appellate Procedure (HRAP) Rule
4(b)(1) provides: "In a criminal case, the notice of appeal
shall be filed within 30 days after entry of the judgment or
order appealed from." Thus, Cardenas's deadline to appeal the
January 12, 2016 Judgment was February 11, 2016; yet the appeal
was not filed until 665 days later, by First Appointed Counsel.
The existence of jurisdiction is a question of law.
State v. Uchima, 147 Hawai#i 64, 72, 464 P.3d 852, 860 (2020)
(quoting Lingle v. Hawaii Gov't Empls. Ass'n, AFSCME, Local 152,
107 Hawai#i 178, 182, 111 P.3d 587, 591 (2005)). With regard to
9
HRPP Rule 40(a)(1) provides in pertinent part:
(a) Proceedings and Grounds. The post-conviction
proceeding established by this rule shall encompass all
common law and statutory procedures for the same purpose,
including habeas corpus and coram nobis; provided that the
foregoing shall not be construed to limit the availability
of remedies in the trial court or on direct appeal. Said
proceeding shall be applicable to judgments of conviction
and to custody based on judgments of conviction, as follows:
(1) From Judgment. At any time but not prior to final
judgment, any person may seek relief under the procedure set
forth in this rule from the judgment of conviction, on the
following grounds:
(i) that the judgment was obtained or sentence imposed
in violation of the constitution of the United States or of
the State of Hawai#i;
(ii) that the court which rendered the judgment was
without jurisdiction over the person or the subject matter;
(iii) that the sentence is illegal;
(iv) that there is newly discovered evidence; or
(v) any ground which is a basis for collateral attack
on the judgment.
For the purposes of this rule, a judgment is final
when the time for direct appeal under Rule 4(b) of the
Hawai#i Rules of Appellate Procedure has expired without
appeal being taken, or if direct appeal was taken, when the
appellate process has terminated, provided that a petition
under this rule seeking relief from judgment may be filed
during the pendency of direct appeal if leave is granted by
order of the appellate court.
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untimely appeals, the "general rule" is that "compliance with the
requirement of timely filing of a notice of appeal is
jurisdictional, and we must dismiss an appeal on our motion if we
lack jurisdiction." Id. at 77, 464 P.3d at 865 (internal
quotation marks omitted) (citing State v. Knight, 80 Hawai#i 318,
323, 909 P.2d 1133, 1138 (1996) (quoting Grattafiori v. State, 79
Hawai#i 10, 13, 897 P.2d 937, 940 (1995))). However, the Hawai#i
Supreme Court has expressed that "[w]hile the rule in isolation
appears inflexible, this court has allowed untimely appeals when
'defense counsel has inexcusably or ineffectively failed to
pursue a defendant's appeal from a criminal conviction in the
first instance.'" Id. (citations omitted). The Uchima Court
noted State v. Knight and State v. Caraballo as specific examples
where untimely appeals were allowed for these situations:
In State v. Knight, the defendant filed the notice of
appeal from the trial court's judgment of conviction twenty-
four days after the filing deadline. 80 Hawai#i at 323, 909
P.2d at 1138. In an affidavit attached to the statement of
jurisdiction, counsel for the defendant averred that he
prepared and signed the notice of appeal prior to the due
date, but counsel discovered that the notice of appeal had
not been filed when he returned from a business trip. Id.
We held that the defendant was entitled to the effective
assistance of counsel who may not deprive the defendant of
an appeal by failing to comply with established deadlines.
Id. at 323-24, 909 P.2d at 1138-39. Finding that it was in
the interest of justice to address the merits of the
defendant's appeal, this court declined to dismiss the
appeal. Id. at 324, 909 P.2d at 1139.
In State v. Caraballo, the defendant withdrew his
appeal based on advice from counsel. 62 Haw. 309, 310, 615
P.2d 91, 93 (1980). After the period for filing the notice
of appeal expired, the defendant learned that counsel's
advice was erroneous and thereafter filed a notice of appeal
and a motion for leave to appeal in forma pauperis. Id. at
310-11, 615 P.2d at 93-94. In deciding to consider the
case, this court noted that, while the "time requirement for
filing the notice of appeal has been termed 'mandatory and
jurisdictional,'" several federal and state courts had
"relaxed" the timeliness requirement for filing a notice of
appeal when counsel for the defendant was at fault. Id. at
312-15, 615 P.2d at 94-96. Reasoning that the untimely
nature of the appeal was due to counsel's erroneous advice,
we considered the defendant's appeal on the merits. Id. at
316, 615 P.2d at 96.
Id. Thus, our case law "has allowed an appeal to proceed despite
an untimely filing of a notice of appeal when defense counsel has
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inexcusably or ineffectively failed to perfect an appeal." Id.
at 78, 464 P.3d at 866.
1. First Appointed Counsel's failure to perfect
an appeal when Counsel knew that Cardenas
desired an appeal, was plainly ineffective.
In Maddox v. State, the supreme court adopted the
requirement that it is "the responsibility of defense counsel in
a criminal case to consult with a client regarding an appeal and
to undertake the procedural steps to effectuate the appeal upon
the client's request." 141 Hawai#i 196, 204, 407 P.3d 152, 160
(2017) (citation omitted). HRS § 802-5(a) (2014 & Supp. 2016),10
which sets forth a statutory right to appointed counsel for
indigent defendants like Cardenas, "imposes a duty on court-
appointed counsel to consult with a defendant following a final
order or judgment to determine whether the defendant wishes to
appeal, as well as a duty to diligently fulfill the procedural
requirements of appeal if the defendant elects to appeal." Id.
at 203, 407 P.3d at 159. Defense counsel in a criminal case has
a duty "to explain to the defendant the meaning and consequences
of the court's judgment and the client's right to appeal . . . ."
Id. at 204, 407 P.3d at 160.
The supreme court held that Maddox was entitled to a
hearing on his HRPP Rule 40 petition that raised colorable
claims, inter alia, of ineffective assistance of counsel due to
trial counsel's failure to initiate an appeal from a circuit
court order dismissing his case without prejudice, where trial
counsel allegedly told Maddox that his representation of Maddox
10
In Maddox, the Court construed HRS § 802-5(a) (2010), which
provides:
[W]hen it shall appear to a judge that a person requesting
the appointment of counsel satisfies the requirements of
this chapter, the judge shall appoint counsel to represent
the person at all stages of the proceedings, including
appeal, if any. If conflicting interests exist, or if the
interests of justice require, the court may appoint private
counsel[.]
(Emphasis added). The 2015 amendment to the statute added the language
"Except as provided in section 334-126(f)" to the beginning of the statute;
the remainder of the statute remains the same. HRS § 802-5(a).
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terminated when the court dismissed the case. 141 Hawai#i 196,
407 P.3d 152. The Maddox Court concluded, "Consequently, we hold
that when a defendant is denied an appeal because of a failure or
omission of defense counsel, a defendant need not demonstrate any
additional possibility of impairment to establish that counsel
was ineffective under article I, sections 5 and 14 of the Hawai#i
Constitution." Id. at 206, 407 P.3d at 162.
While Maddox involved an appeal from the denial of a
Rule 40 petition without hearing, this appeal does not arise out
of a Rule 40 petition. However, we are not exclusively confined
to the procedural vehicle of a Rule 40 petition to address
Cardenas's late appeal. Under Uchima, an appellate court may
rule on an ineffective assistance claim that is "plain from the
record" without requiring a Rule 40 petition, under certain
circumstances where the "interest of justice" warrants doing so.
147 Hawai#i at 82-83, 464 P.3d at 870-71. The Uchima Court
explained:
Hence, Uchima did not receive effective assistance of
counsel with regard to the timely filing of his Application.
Although Uchima may assert an ineffectiveness assistance
claim through the initiation of an HRPP Rule 40 proceeding,
the record is clear that Uchima's counsel intended to file
the Application and that but for counsel's error or omission
the Application would have been timely filed. This court
has previously ruled on ineffective assistance claims
without requiring a post-conviction proceeding when the
ineffective assistance of counsel was plain from the record.
See, e.g., [State v. Pacheco, 96 Hawai#i 83, 102, 26 P.3d
572, 591 (2001)] (holding that the record on appeal
conclusively established that counsel was ineffective);
[State v. Aplaca, 74 Haw. 54, 72, 837 P.2d 1298, 1307-08
(1992)] (concluding counsel provided ineffective assistance
based on a review of the record). Requiring Uchima to
proceed with an HRPP Rule 40 petition under the facts of
this case would only unnecessarily prolong final
determination of Uchima's appeal and result in an
inefficient use of judicial resources. [State v. Silva, 75
Haw. 419, 438-39, 864 P.2d 583, 592 (1993)] ("[I]n some
instances, the ineffective assistance of counsel may be so
obvious from the record that [an HRPP] Rule 40 proceeding
would serve no purpose except to delay the inevitable and
expend resources unnecessarily.").
Therefore, to avoid the due process violation that
would otherwise occur in this case, we decline to dismiss
Uchima's Application "[i]n the interest of justice" and thus
proceed to consider its merits. Knight, 80 Hawai#i at 324,
909 P.2d at 1139 (holding that it was in the "interest of
justice" to address the merits of the defendant's appeal
notwithstanding the untimely filing of the notice of
appeal).
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Id. at 83, 464 P.3d at 871 (emphasis added). Thus, under factual
circumstances where counsel's ineffectiveness in filing an
untimely appeal is clear and plain from the record, and where
requiring a Rule 40 petition would unnecessarily prolong final
determination and result in inefficient use of judicial
resources, an appellate court may consider a late appeal on its
merits, "[i]n the interest of justice." Id.; Knight, 80 Hawai#i
at 324, 909 P.2d at 1139. See also Villados v. State, 148
Hawai#i 386, 392, 477 P.3d 826, 832 (2020) (citing Uchima and
similarly holding that jurisdiction was properly exercised over
Villados's late certiorari application where Villados's counsel's
ineffectiveness was plain from the record).11
We conclude that, under Villados, Uchima, and Maddox,
the ineffective assistance of counsel resulting in Cardenas's
failure to timely file an appeal is "plain from the record"
before us. Uchima, 147 Hawai#i at 83, 464 P.3d at 871. Here,
the record reflects that Cardenas consistently indicated his
desire for an appeal, throughout the relevant time frame, and
that First Appointed Counsel was aware of Cardenas's desire for
an appeal and to raise ineffective assistance of his trial
counsel in that appeal. After the jury's guilty verdict on
September 16, 2015, Cardenas, then represented by the deputy
public defender, told the Circuit Court, "I would like to file an
appeal for ineffective counsel." The deputy public defender
11
Villados was issued in December 2020, six months after Uchima. In
Villados, the supreme court explained:
As this court held in State v. Uchima, 147 Hawai#i 64,
464 P.3d 852 (2020), a criminal defendant is entitled to the
effective assistance of counsel on certiorari review. Id.
at 76, 464 P.3d at 864. Uchima arose in the same context
that Villados found himself in 2012: a late application,
which would normally deprive us of jurisdiction, caused by
ineffective assistance of counsel on direct appeal. Because
the ineffectiveness of Uchima's counsel was plain from the
record, we had authority to consider the application on its
merits, as we do "when it is necessary to prevent a
violation of due process or is in the interests of justice."
Id. at 82, 464 P.3d at 870. Just as we considered Uchima's
application on the merits, Villados's application should be
considered on its merits as well.
148 Hawai#i at 392, 477 P.3d at 832.
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filed a motion to withdraw nine days later, declaring that on
September 16, 2015, when the guilty verdict was returned, that
Cardenas "indicated to the court that he wanted to appeal the
case based on ineffective assistance of counsel." When First
Appointed Counsel was appointed to represent Cardenas on October
14, 2015, even though the September 16, 2015 transcript had not
yet been prepared, the deputy public defender's motion containing
explicit reference to Cardenas's desire for an appeal, was
plainly in the record for First Appointed Counsel's review. See
id.
First Appointed Counsel's OSC Declaration contains
multiple acknowledgments that Cardenas timely expressed his
desire for an appeal to Counsel. Paragraph 9 states that Counsel
discussed with Cardenas "a possible appeal regarding ineffective
assistance of counsel" prior to the January 12, 2016 sentencing
hearing. That Counsel also believed that Counsel's "primary
objective was to get the best possible sentence" for Cardenas
does not mean that Counsel could simply focus on the primary
objective of minimizing a jail sentence, and disregard Cardenas's
inquiry regarding the "possible appeal regarding ineffective
assistance of counsel." See Maddox, 141 Hawai#i at 204, 407 P.3d
at 160 (holding it is the duty of defense counsel to explain the
client's right to appeal). Counsel recalled in paragraph 13 that
"on January 12, 2016, there was some discussion with [Cardenas]
regarding ineffective assistance of counsel and his desire to
pursue this issue." That Counsel characterizes this discussion
as "not in depth or in any specific detail" does not mean that
Counsel did not have a duty to follow up with Cardenas on
Cardenas's desire to pursue the issue of ineffective assistance
of trial counsel. See id.
First Appointed Counsel's statement in paragraph 14
that there was "no discussion as to the specific issues regarding
his former public defender counsel" does not excuse Counsel of
his duty to ascertain the specific ineffective assistance of
counsel issues that Cardenas had only generally discussed with
Counsel. Counsel's statement in paragraph 21 that because
Cardenas "abruptly left the courtroom" after sentencing and
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"therefore we had no substantive discussion on the issue of
ineffective assistance of counsel," does not absolve Counsel of
his duty to follow up with Cardenas to continue the "substantive
discussion" and advise Cardenas regarding an appeal raising
ineffective assistance of counsel, and to take steps to preserve
Cardenas's right to appeal. See id. (affirming responsibility of
defense counsel to consult with defendant to determine whether
defendant wishes to appeal and to fulfill the procedural
requirements if defendant elects to appeal).
First Appointed Counsel acknowledges that Cardenas
called in early February 2016 leaving a "call me back" message,
but claims Cardenas did not follow up on this message. Counsel
further recounted a subsequent call from Cardenas almost a year
later in January 2017, where Cardenas stated that he wanted to
appeal. Counsel does not indicate whether he made any attempts
to follow up on either of these messages left by his client; and
it was Counsel's duty, not Cardenas's, to follow up and advise
Cardenas regarding his right to appeal. See id. However, the
OSC Declaration concedes that Counsel did not speak with Cardenas
at all, until the November 7, 2017 HOPE modification hearing.
Counsel's claim in paragraphs 30 and 31, that it was only after
the November 7, 2017 hearing that Cardenas told Counsel that
Counsel was appointed to file an appeal regarding ineffective
assistance of counsel, is inconsistent with Counsel's
acknowledged awareness of Cardenas's desire for an appeal set
forth in paragraphs 9 and 13.
Under these circumstances, where First Appointed
Counsel was aware of both Cardenas's desire for an appeal and
interest in pursuing ineffective assistance claims against his
trial counsel, we conclude that it is "plain from the record"
that Counsel was ineffective for failing to discuss and advise
Cardenas of his right to appeal, and failing to commence the
steps to preserve Cardenas's right to appeal. Uchima, 147
Hawai#i at 82-83, 464 P.3d at 870-71; see Maddox, 141 Hawai#i 96,
407 P.3d 152.
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2. Under the circumstances of this case, where
Counsel was plainly ineffective and Cardenas
received inaccurate information regarding the
deadline for an appeal, consideration of
Cardenas's appeal on the merits is warranted
in the interest of justice.
Under circumstances where counsel's ineffectiveness in
filing an untimely appeal is clear and plain from the record, and
where requiring a Rule 40 petition would unnecessarily prolong
final determination and result in inefficient use of judicial
resources, an appellate court may consider a late appeal on its
merits "in the interest of justice." Uchima, 147 Hawai#i at 83,
464 P.3d at 871 (quoting Knight, 80 Hawai#i at 324, 909 P.2d at
1139) (internal brackets omitted). In Villados, the Hawai#i
Supreme Court cited Uchima, noting that: "Because the
ineffectiveness of Uchima's counsel was plain from the record, we
had authority to consider the [late] application [for certiorari]
on its merits, as we do when it is necessary to prevent a
violation of due process or is in the interest of justice." 148
Hawai#i at 392, 477 P.3d at 832 (citing Uchima, 147 Hawai#i at 82,
464 P.3d at 870) (emphasis added) (internal quotation marks
omitted). See also Knight, 80 Hawai#i at 324, 909 P.2d at 1139
(declining to dismiss a criminal defendant's late-filed appeal
and addressing the merits "[i]n the interest of justice");
Caraballo, 62 Haw. at 315-16, 615 P.2d at 96 (declining to
dismiss late appeal "where justice so warrants," where defendant
withdrew appeal based on counsel's erroneous advice and "through
no fault of his own"); State v. Ahlo, 79 Hawai#i 385, 392, 903
P.2d 690, 697 (1995) (citing Caraballo and applying "where
justice so warrants" exception to allow late appeal to avoid
"harsh and unjust results").
Here, while the 30-day deadline to appeal from the
January 12, 2016 Judgment had not yet passed, Cardenas appeared
at the February 3, 2016 HOPE warning hearing, without counsel,
during which Cardenas expressed his intent to file an appeal to
the HOPE Circuit Court, asked how to file an appeal, to which the
HOPE Circuit Court responded, "You can file at any time." This
statement was not accurate, since criminal appeals are subject to
a 30-day deadline from the entry of judgment, under HRAP Rule 4.
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The HOPE Circuit Court explained that the presence of counsel was
"waived" for HOPE warning hearings; and thus, Cardenas did not
have the benefit of having his court-appointed counsel present to
correct or clarify the HOPE Circuit Court's inaccurate statement
to him. In view of the HOPE Circuit Court's inaccurate statement
to Cardenas that he could file an appeal at any time, without
Cardenas's counsel present, the interest of justice also supports
our consideration of Cardenas's late appeal in this case.
The timing of the HOPE Circuit Court's inaccurate
information on February 3, 2016, juxtaposed against the timing of
Cardenas's two phone calls to First Appointed Counsel in February
2016 and January 2017, further support our consideration of
Cardenas's late appeal in the interest of justice. Counsel
stated that Cardenas called him in early February 2016 and left a
"Call me back" message, which coincides with the timing of the
February 3, 2016 HOPE warning hearing. Counsel also related that
Cardenas did not call again until almost a year later, in January
2017, saying that he wanted to appeal. The lack of any phone
calls by Cardenas to Counsel between February 2016 and January
2017 is understandable where the record reflects that Cardenas
was told he could appeal "at any time." Counsel confirmed they
had no contact from the January 12, 2016 sentencing hearing until
the November 7, 2017 HOPE motion for modification hearing.
Cardenas thus was not advised by Counsel regarding the appeal,
appeal process and appellate deadlines, during the pertinent time
period.
On this record, we conclude that the interest of
justice warrants allowing Cardenas's untimely appeal to proceed,
in light of the above circumstances, where there was a lack of
necessary advice about the appeal from his First Appointed
Counsel who ineffectively failed to provide it, coupled with the
erroneous information about the appeal deadline that Cardenas
received at a circuit court hearing without his First Appointed
Counsel present. See Villados, 148 Hawai#i at 392, 477 P.3d at
832; Uchima, 147 Hawai#i at 82, 464 P.3d at 870. Under the
circumstances of this case, where Cardenas's First Appointed
Counsel was plainly ineffective and where Cardenas received
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inaccurate information regarding the deadline for appeal,
Cardenas's appeal should proceed on the merits to avoid the
"harsh and unjust" result of depriving Cardenas of his right to
appeal. Ahlo, 79 Hawai#i at 392, 903 P.2d at 697; see Villados,
148 Hawai#i at 392, 477 P.3d at 832; Uchima, 147 Hawai#i at 82,
464 P.3d at 870. We now address the merits of Cardenas's appeal.
B. The Interference With Bus Operator jury
instruction was not erroneous.
Cardenas contends that the Circuit Court's jury
instruction for the offense of Interference With Bus Operator12
was prejudicially erroneous and misleading because it was unclear
(1) whether the jury would have been able to discern that
"reckless disregard of the risk" invoked the mens rea of
12
The Circuit Court instructed the jury as follows:
... A person commits the offense of interference with
the operator of a public transit vehicle if he interferes
with the operation of a public transit vehicle or lessens
the ability of the operator to operate the public transit
vehicle by threatening by word or conduct to cause bodily
injury to the operator of the public transit vehicle in
reckless disregard of the risk of terrorizing the operator
of the public transit vehicle.
There are three material elements of the offense of
interference with the operator of a public transit vehicle,
each of which the prosecution must prove beyond a reasonable
doubt. These three elements are:
One, that on or about February 27, 2015, in the city
and county of Honolulu, the defendant interfered with the
operation of a public transit vehicle or lessened the
ability of the operator, Ernest Lake, to operate the public
transit vehicle; and
Two, that the defendant did so by threatening by word
or conduct to cause bodily injury to Ernest Lake, the
operator of the public transit vehicle; and
Three, that the defendant did so in reckless disregard
of the risk of terrorizing Ernest Lake, the operator of the
public transit vehicle.
Public transit vehicle means a public
paratransit vehicle providing service to the disabled,
any transit vehicle used for the transportation of
passengers in return for legally charged fees or fares, any
school bus or any taxi.
Bodily injury means physical pain,
illness, or any impairment of physical condition.
(Emphasis added).
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"recklessly," and (2) whether the jury clearly understood
"reckless disregard of the risk" applied to each element of the
offense charged. Based on our plain error review as Cardenas
failed to object below, this contention 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. However, 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.
State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)
(internal citations, brackets, quotation marks, indentations, and
paragraphing omitted). "[O]nce instructional error is
demonstrated, we will vacate, without regard to whether timely
objection was made, if there is a reasonable possibility that the
error contributed to the defendant's conviction, i.e., that the
erroneous jury instruction was not harmless beyond a reasonable
doubt." State v. DeLeon, 131 Hawai#i 463, 479, 319 P.3d 382, 398
(2014) (quoting Nichols, 111 Hawai#i at 337, 141 P.3d at 984
(footnote omitted)).
When "read and considered as a whole" and viewing the
Circuit Court's instructions in their entirety, the jury
instruction on the Interference With Bus Operator offense was not
erroneous. Nichols, 111 Hawai#i at 334, 141 P.3d at 981. The
offense instruction correctly set forth the offense in accordance
with HRS § 711-7112. The state of mind was specified in Element
Three, that "the Defendant did so in reckless disregard of the
risk of terrorizing" Lake, and referenced the "reckless" state of
mind for the offense under HRS § 711-1112. The jury was also
instructed that: "You must consider all the instructions as a
whole and consider each instruction in the light of all the
others." The circumstantial evidence instruction explained:
"The state of mind with which a person commits an act such as
'recklessly' may be proved by a circumstantial evidence." The
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jury was also instructed pursuant to HRS § 702-204 (2014),13
that:
A person is not guilty of an offense unless the
State proves beyond a reasonable doubt that the person
acted with the required state of mind, as these
instructions specify, with respect to each element of
the offense. The instruction for the offense charged
specifies the state of mind required to be proved.
(Emphasis added). Finally, the Circuit Court instructed the jury
on the state of mind of "recklessly," pursuant to HRS § 702-
206(3) (2014).14
Thus, the jury instructions, when viewed as a whole,
correctly informed the jury that the applicable state of mind was
"recklessly," accurately defined "recklessly," and specified that
the reckless state of mind applied to all elements of the
Interference With Bus Operator offense. Thus, the Interference
13
HRS § 702-204 provides:
Except as provided in section 702-212, a person is not
guilty of an offense unless the person acted intentionally,
knowingly, recklessly, or negligently, as the law specifies,
with respect to each element of the offense. When the state
of mind required to establish an element of an offense is
not specified by the law, that element is established if,
with respect thereto, a person acts intentionally,
knowingly, or recklessly.
14
The Circuit Court's jury instruction tracked HRS § 702-206(3)
which provides:
(3) "Recklessly."
(a) A person acts recklessly with respect to his conduct
when he consciously disregards a substantial and
unjustifiable risk that the person's conduct is of the
specified nature.
(b) A person acts recklessly with respect to attendant
circumstances when he consciously disregards a substantial
and unjustifiable risk that such circumstances exist.
(c) A person acts recklessly with respect to a result of his
conduct when he consciously disregards a substantial and
unjustifiable risk that his conduct will cause such a
result.
(d) A risk is substantial and unjustifiable within the
meaning of this section if, considering the nature and
purpose of the person's conduct and the circumstances known
to him, the disregard of the risk involves a gross deviation
from the standard of conduct that a law-abiding person would
observe in the same situation.
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With Bus Operator instruction was not prejudicially erroneous and
misleading. See Nichols, 111 Hawai#i at 334, 141 P.3d at 981.
C. A unanimity instruction was not required.
Cardenas contends that the omission of a unanimity jury
instruction, where Lake testified to at least six distinct acts15
by Cardenas that arguably could have served as the basis for the
conduct element of the charge, rendered the instructions
prejudicially erroneous and misleading. Based on our plain error
review as Cardenas did not object to the Circuit Court's
withdrawal of the unanimity instruction, we conclude this
contention is without merit.
The Arceo requirement of a unanimity instruction
applies when "separate and distinct culpable acts" are subsumed
within a single charge, "any one of which could support a
conviction thereunder." State v. Mundon, 121 Hawai#i 339, 350,
219 P.3d 1126, 1137 (2009) (quoting Arceo, 84 Hawai#i at 32-33,
928 P.2d at 874-75). "[T]wo conditions must converge before an
Arceo unanimity instruction, absent an election by the
prosecution, is necessary: (1) at trial, the prosecution adduces
proof of two or more separate and distinct culpable acts; and (2)
the prosecution seeks to submit to the jury that only one offense
was committed." Id. (quoting State v. Kassebeer, 118 Hawai#i
493, 508, 193 P.3d 409, 424 (2008) (internal citations omitted)).
Both Cardenas and the State rely on the unanimity
analysis for a Terroristic Threatening offense to argue whether
or not a unanimity instruction was required for this Interference
With Bus Operator offense. Cardenas argues that the evidence
showed multiple separate and distinct culpable acts, and that at
no point did the State elect the specific act that constituted
the "threat" to satisfy the conduct element. The State asserts
15
Cardenas asserts the following conduct constituted distinct and
separate acts warranting a unanimity instruction: (1) straddling the standing
line; (2) asking, "Why didn't you F'in kneel the bus?"; (3) taking an
"aggressive" stance and stating, "Well, I am disabled. You do what I F'n
say."; (4) coming back to Lake and saying, "I want to add one thing."; (5)
telling Lake, "I'm going to F'n kick your ass"; and (6) when Lake warned that
he would call for assistance, answering, "Go ahead and F'in call them. What
the hell I care for? What the hell I care? Call 'em."
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that no Arceo unanimity instruction was necessary where there was
"only one continuing course of conduct" that the Interference
With Bus Operator offense "could be based on[.]"
The State relies on State v. Apao, 95 Hawai#i 440, 447
P.3d 32, 39 (2001), where the supreme court recognized that the
statutory "terroristic threatening" definition in HRS § 707-
715(1) did not preclude the prosecution "from proving that the
required conduct element was committed by a series of acts
constituting a continuing course of conduct." The Apao Court
explained:
Unlike the sexual assault offense at issue in Arceo,
nothing in the statutory definition of terroristic
threatening, or the penal code in general, precludes the
prosecution from proving that the required conduct element
was committed by a series of acts constituting a continuing
course of conduct. Rather, the very nature of threatening
conduct connotes a combination or series of words and/or
actions that together constitute a threat. Thus, if the
prosecution presented the evidence at trial as one
continuous uninterrupted course of conduct, then no specific
unanimity instruction would be required.
Id. Defendant Apao was convicted of second-degree terroristic
threatening where the record showed that Apao began a "tirade of
threats by both word and conduct to cause bodily injury" to the
complainant from their first encounter at a bus stop, and "[a]t
no point between the time Apao arrived at the bus stop until
Perez was in the safety of the police at the Kāne#ohe residence
was Perez not being threatened by Apao's words and conduct." Id.
at 447-48, 24 P.3d at 39-40. The Apao Court concluded, "The
record demonstrates that the multiple threats constituted a
continuous uninterrupted series of acts," and a unanimity
instruction was not required. Id. at 448, 24 P.3d at 40.
While the offense of Interference With Bus Operator for
"threatening" conduct under HRS § 711-1112(1)(b) incorporates
similar language as used in the "terroristic threatening"
definition in HRS § 707-715 (2014),16 it is a different offense
16
HRS § 707-715 defines "Terroristic Threatening" in pertinent part:
A person commits the offense of terroristic threatening if
the person threatens, by word or conduct, to cause bodily
injury to another person . . . .
(continued...)
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that requires additional elements beyond "terroristic
threatening" conduct to establish a complete offense. Thus, the
unanimity instruction caselaw for terroristic threatening
offenses is not dispositive in a unanimity analysis of this
Interference With Bus Operator offense.
HRS § 702-205(a) (2014) provides: "The elements of an
offense are such (1) conduct, (2) attendant circumstances, and
(3) results of conduct" as "[a]re specified by the definition of
the offense[.]" For the offense of Interference With Bus
Operator under HRS § 711-1112(1)(b), the conduct element must be
proved by "[t]hreatening, by word or conduct, to cause bodily
injury . . . ." That the threatening conduct occur to "the
operator of the public transit vehicle," as defined in subsection
(2), is the required attendant circumstance that must be proved,
for both subsections (1)(a) and (1)(b). HRS § 711-1112. That
the conduct result in "interfer[ing] with the operation of a
public transit vehicle" or "lessen[ing] the ability of the
operator to operate the public transit vehicle" is the required
result that must be proved. Id. Finally, the state of mind
specified for an interference offense based on threatening, by
word or conduct, to cause bodily injury, is intentionally (i.e.,
"intent to terrorize") or recklessly (i.e., "reckless
disregard"). Id.; see HRS § 702-204 (specified state of mind
applies to each element of the offense). Thus, for an
Interference With Bus Operator offense under HRS § 711-1112(1)(b)
at issue in this case, the "threatening" conduct must also cause
the prohibited result in subsection (1), i.e., that the person
"interferes with the operation of a public transit vehicle or
lessens the ability of the operator to operate the public transit
vehicle." (Emphasis added).
Here, the evidence reflected a single continuous,
uninterrupted course of threatening conduct that caused the
required result of interfering with Lake's ability to operate the
16
(...continued)
(1) With the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another person
. . . .
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bus, to establish an Interference With Bus Operator offense under
HRS § 711-1112(1)(b). The evidence showed two possible
threatening encounters between Lake and Cardenas on the bus, but
only the latter encounter culminated in the required conduct and
result necessary to establish criminal culpability under HRS §
711-1112(1)(b). The first encounter occurred when Cardenas
approached Lake and said, "Well, I am disabled. You do what I
F'in say," and this encounter resulted in Cardenas taking a seat
as Lake requested. There was no evidence that the first
encounter resulted in interference with bus operation or Lake's
ability to operate the bus. The second encounter occurred when
Cardenas approached Lake again, shouting about how he was not
someone that Lake could boss around, and further verbally
threatening Lake, "I'm going to F'in kick your ass" in an
"aggressive, loud" voice; to which Lake said, "If you keep on
talking to me while I'm operating a city bus, I am going to
call;" Cardenas responded, "Go ahead and F'in call 'em"; and Lake
pressed the "priority button" because he felt threatened. At
that point, Lake testified that he could not operate the bus
safely with Cardenas standing on the yellow line, talking to him
within arm's length. Lake stopped and secured the bus, waited
outside the bus for assistance, and police arrived a few minutes
later.
Thus, the evidence showed that the second encounter
resulted in interference with bus operation because the bus had
to be stopped due to Cardenas's threat, and the second encounter
also lessened the ability of Lake to safely operate the bus. In
closing argument, the State focused only on the second encounter
as constituting the offense, as follows:
The bus had to be stopped after the incident between
he and Mr. Lake. He interfered with the operation of that
bus.
. . . .
Again, as I said earlier, the State has proven that
the defendant, by both word or conduct, threatened to cause
bodily injury against Ernest Lake. The threat, "I'm gonna
fuckin' kick your ass," the conduct, his posture, his tone,
his stance, being across that yellow line within arm's reach
of the defendant while he was operating the vehicle.
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(Emphasis added). We conclude that only the second encounter
with the verbal threat and the resulting impact to bus operation,
constituted an offense of Interference With Bus Operator.
The Arceo unanimity requirement applies to "separate
and distinct culpable acts," any one of which could support a
separate offense. 84 Hawai#i at 32, 928 P.2d at 874 (emphasis
added). The Arceo Court held, inter alia, that separate acts of
sexual assault cannot be "continuing offenses" where "each
distinct act in violation of these statutes constitutes a
separate offense . . . ." Id. at 21, 928 P.2d at 863.
Cardenas's argument that "separate and distinct culpable acts" of
threatening conduct required a unanimity instruction is without
merit because there were not separate and distinct acts that each
constituted a separate completed offense of Interference With Bus
Operator. The evidence at trial showed a single continuous
uninterrupted course of conduct culminating in the result
necessary to establish the offense of Interference With Bus
Operator. See HRS § 711-1112(1)(b); Apao, 95 Hawai#i at 448, 24
P.3d at 40. Because a unanimity instruction was not required
where the evidence reflected a single continuous course of
conduct constituting a single offense of Interference With Bus
Operator, the Circuit Court's withdrawal of the unanimity
instruction was not erroneous. See Apao, 95 Hawai#i at 448, 24
P.3d at 40; Arceo, 84 Hawai#i at 32, 928 P.2d at 874.
D. The prosecutor committed misconduct by
attacking Cardenas's credibility based
on his status as the defendant.
Cardenas contends that the prosecutor committed
misconduct when he argued in closing that Cardenas, as the
defendant, was the only person with an incentive to lie.
Although Cardenas failed to object to this comment, we review for
plain error, and conclude that this contention has merit.
"Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
'whether there is a reasonable possibility that the error
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complained of might have contributed to the conviction.'" State
v. Austin, 143 Hawai#i 18, 28, 422 P.3d 18, 28 (2018) (citation
omitted). Even in the absence of a defense objection to
prosecutorial misconduct, we "may nevertheless recognize such
misconduct if plainly erroneous" or when it "affects the
substantial rights of the defendant." Id. at 28-29, 422 P.3d at
28-29 (quoting State v. Wakisaka, 102 Hawai#i 504, 513, 78 P.3d
317, 326 (2003) (internal quotation marks omitted)).
In State v. Basham, 132 Hawai#i 97, 115, 319 P.3d 1105,
1123 (2014), the Hawai#i Supreme Court held that the prosecutor's
argument that the jury should find the defendant not credible
simply because he was the defendant constituted misconduct. The
Basham Court explained: "[a] suggestion that defendants have no
reason to tell the truth impinges upon fundamental principles of
our system of justice, including the presumption of innocence,
the burden of proof upon the government, the right to testify
without penalty, and the right to a fair trial with an unbiased
jury." Id. at 116, 319 P.3d at 1124. The Basham Court held:
"[A] prosecutor may not argue during closing argument that
defendants, because they are defendants, have no reason to tell
the truth or have the greatest motive to lie." Id. at 118, 319
P.3d at 1126 (internal quotation marks omitted). Basham clearly
applies to the argument made in this case, and the prosecutor's
statements constituted misconduct.
When determining whether prosecutorial misconduct rises
to the level of reversible error, this court considers three
factors: (1) the nature of the misconduct; (2) the promptness or
lack of a curative instruction; and (3) the strength or weakness
of the evidence against the defendant. Austin, 143 Hawai#i at
40, 422 P.3d at 40 (citation omitted). As to the first factor,
the nature of the alleged misconduct is such that it "invite[d]
the jury to base its verdict on considerations other than the
evidence in the case," State v. Schnabel, 127 Hawai#i 432, 452,
279 P.3d 1237, 1257 (2012) (internal quotation marks and
citations omitted), i.e., because Cardenas is a defendant, he had
no reason to tell the truth because he has the most to lose. The
prosecutor's improperly expressed view on Cardenas's credibility
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was not argument that was properly based on the evidence or
reasonable inferences therefrom. This factor weighs in favor of
Cardenas.
As to the second factor, because Cardenas did not
object to the prosecutor's statement, the Circuit Court did not
issue a curative instruction. Under these circumstances, this
factor weighs in favor of Cardenas. See Wakisaka, 102 Hawai#i at
516, 78 P.3d at 329 (determining that as defendant's counsel did
not object to a prosecutor's comments in closing arguments, and
as the court did not give a curative instruction, that the second
factor weighed in favor of the defendant.).
Finally, the third factor, the strength or weakness of
the evidence, also weighs in favor of Cardenas. With only two
percipient witnesses with conflicting testimony at trial, the
jury decided the case based on who it found more credible. In
"close" cases involving credibility of witnesses, "particularly
where there are no disinterested witnesses or other corroborating
evidence," appellate courts are "reluctant to hold improper
statements harmless." State v. Tuua, 125 Hawai#i 10, 17, 250
P.3d 273, 280 (2011) (comparing State v. Maluia, 107 Hawai#i 20,
27, 108 P.3d 974, 981 (2005), which noted that "'the
prosecutorial misconduct in the instant case was harmless beyond
a reasonable doubt'" where "'[t]he evidence against the defendant
included two eyewitness accounts from witnesses unconnected to
the defendant or the victim [and] also showed that the
defendant's BAC was 0.131, raising additional doubts as to the
defendant's credibility'," with State v. Rogan, 91 Hawai#i 405,
415, 984 P.2d 1231, 1241 (1991), which held that "the evidence
did not outweigh the inflammatory effect of the prosecutor's
comments, where the case 'turned on the credibility of two
witnesses' and '[t]here were no independent eyewitnesses or
conclusive forensic evidence'."). In Tuua, the Court held the
prosecutor's statement was not harmless in a second-degree
assault case where the pivotal issue of who threw the bottle
injuring the complainant turned on witness credibility. Id.
Here, aside from the testimony of Officer Ellis, who
arrived on scene after the incident was over, the jury was only
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
presented with the competing testimonies of Lake and Cardenas,
each testifying to materially different versions of the relevant
events. Under these circumstances, there is a reasonable
possibility that the prosecutor's improper argument unfairly
attacking Cardenas's credibility based on his status as the
defendant may have contributed to Cardenas's conviction in this
case. See id.; Basham, 132 Hawai#i at 116, 319 P.3d at 1124;
Austin, 143 Hawai#i at 28, 422 P.3d at 28. We conclude that the
prosecutorial misconduct constituted plain error affecting
Cardenas's substantial right to a presumption of innocence, the
right to testify without penalty, and the right to a fair trial,
and it was not harmless beyond a reasonable doubt; and thus, we
vacate and remand for a new trial. See Basham, 132 Hawai#i at
116, 319 P.3d at 1124; Wakisaka, 102 Hawai#i at 516, 78 P.3d at
329; Austin, 143 Hawai#i at 28, 422 P.3d at 28.
III. CONCLUSION
For the foregoing reasons, we vacate the Judgment of
Conviction and Probation Sentence, and Notice of Entry, filed on
January 12, 2016, by the Circuit Court of the First Circuit, and
remand for a new trial.
On the briefs:
/s/ Lisa M. Ginoza
Chief Judge
Thomas Waters
(Law Offices of Thomas Waters) /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge
Brian R. Vincent /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
for plaintiff-Appellee
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