NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-FEB-2022
07:59 AM
Dkt. 143 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOSHUA IKAIKAMAIKAI THOMPSON, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
On May 31, 2017, Plaintiff-Appellee State of Hawai#i
(State) charged Defendant-Appellant Joshua Ikaikamaikai Thompson
(Thompson), via indictment, with two counts of Negligent Homicide
in the First Degree, in violation of Hawaii Revised Statutes
(HRS) § 707-702.5(1)(a) (2014), and one count of Promoting a
Detrimental Drug in the Third Degree, in violation of HRS § 712-
1249 (2014). The charges stemmed from a fatal motor vehicle
collision on July 1, 2016, on Kamehameha Highway in the Waiâhole
area. Thompson's vehicle collided with a vehicle driven by Mark
M. Matsushima (Matsushima). Matsushima and his passenger,
Sefilina M. Gray, died.
Following a jury trial, Thompson was convicted of two
counts of Negligent Homicide in the Second Degree, in violation
of HRS § 707-703(1)(a) (2014)1/ (Counts One and Two), and one
1/
HRS § 707-703(1)(a) provides, in relevant part:
(1) A person commits the offense of negligent homicide
in the second degree if that person causes the death of:
(continued...)
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count of Promoting a Detrimental Drug in the Third Degree (Count
Three). Thompson was subsequently ordered to pay restitution as
to Count 2 in the amount of $7,150.92.
Thompson appeals from the September 12, 2019 Judgment
of Conviction and Sentence (Judgment) and the January 3, 2020
Free Standing Order of Restitution (Order of Restitution),
entered in the Circuit Court of the First Circuit (Circuit
Court).2/ On appeal, Thompson challenges his conviction on Counts
One and Two, contending that: (1) the Circuit Court plainly
erred in failing to instruct the jury on causation and
intervening action in accordance with HRS §§ 702-214 and 702-
216(2) (quoted infra); (2) the State engaged in multiple acts of
prosecutorial misconduct that individually and collectively
deprived Thompson of his right to a fair trial; and (3) defense
counsel did not provide Thompson with effective assistance of
counsel. Thompson does not challenge his conviction on Count
Three.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Thompson's contentions as follows, and vacate (a) the Judgment as
to Counts One and Two, and (b) the Order of Restitution.
(1) Thompson contends that the Circuit Court plainly
erred in failing to instruct the jury in accordance with HRS
§§ 702-2143/ and 702-216(2)4/ because, when read and considered as
1/
(...continued)
(a) Another person by the operation of a vehicle in
a negligent manner[.]
2/
The Honorable Karen T. Nakasone presided.
3/
HRS § 702-214 (2014) provides: "Conduct is the cause of a result
when it is an antecedent but for which the result in question would not have
occurred."
4/
HRS § 702-216 (2014) provides, in relevant part:
In the following instances, recklessly or negligently
causing a particular result shall be deemed to be
established even though the actual result caused by the
defendant may not have been within the risk of which the
defendant was or, in the case of negligence, should have
been aware:
(continued...)
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a whole, the jury instructions given regarding Negligent Homicide
in the Second Degree were prejudicially insufficient.
When jury instructions or their omission 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." Stanley
v. State, 148 Hawai#i 489, 500, 479 P.3d 107, 118 (2021)
(emphasis omitted); State v. Metcalfe, 129 Hawai#i 206, 222, 297
P.3d 1062, 1078 (2013).
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.
Stanley, 148 Hawai#i at 500-01, 479 P.3d at 118-19 (quoting State
v. Loa, 83 Hawai#i 335, 350, 926 P.2d 1258, 1273 (1996)).
Here, Thompson failed to object to the alleged
deficiency in the jury instructions at trial. However, "once
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[.]" State v. Nichols, 111 Hawai#i 327,
337, 141 P.3d 974, 984 (2006).
The Circuit Court instructed the jury on the elements
of Negligent Homicide in the Second Degree as follows:
A person commits the offense of Negligent
Homicide in the Second Degree if he causes the death
of another person by the operation of a vehicle in a
4/
(...continued)
. . . .
(2) The actual result involves the same kind of
injury or harm as the probable result and is not
too remote or accidental in its occurrence or
too dependent on another's volitional conduct to
have a bearing on the defendant's liability or
on the gravity of the defendant's offense.
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negligent manner.
There are three material elements of the offense
of Negligent Homicide in the Second Degree, each of
which the prosecution must prove beyond a reasonable
doubt.
These three elements are:
1. That on or about July 1, 2016, in the City
and County of Honolulu, the defendant caused the death
of Mark M. Matsushima[ and Sefilina M. Gray]; and
2. That the defendant did so by operating a
vehicle; and
3. That the defendant acted negligently as to
each of the foregoing elements.
The jury instructions did not include the test for actual
causation (i.e., the "but for" test) under HRS § 702-214, or the
standard for assessing the defendant's culpability under HRS §
702-216. See State v. Abella, 145 Hawai#i 541, 556-57, 454 P.3d
482, 497-98 (2019).
Thompson contends that the resulting instructions on
Negligent Homicide in the Second Degree were prejudicially
insufficient, because "the element of causation was critical to a
determination of Thompson's liability[,]" and that issue was
disputed at trial. In particular, Thompson argues that because
there were no eyewitnesses to the collision, the parties relied
on their respective expert witnesses, who disagreed regarding the
cause of the collision.
"In a jury trial, it is the court's responsibility to
ensure that the jury is properly instructed on the law and the
questions the jury is to decide." Abella, 145 Hawai#i at 556,
454 P.3d at 497 (citing Nichols, 111 Hawai#i at 334-35, 141 P.3d
at 981-82). The State must prove "[e]ach element of the offense"
beyond a reasonable doubt. HRS § 701-114 (2014). Causation is
an element of the offense of Negligent Homicide in the Second
Degree, see HRS § 707-703(1), and a question of fact for the jury
to decide. See Abella, 145 Hawai#i at 556, 454 P.3d at 497.
In this case, evidence was adduced at trial from which
a jury could have concluded that Thompson's conduct was not the
"but for" cause of the decedents' deaths. Evidence was also
adduced of intervening events, from which a jury could have
inferred that, even if Thompson's conduct actually caused the
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deaths, his culpability was diminished. For example, Thompson's
expert witness, Clyde Calhoun (Calhoun), opined "that the
accident was caused by a vehicle, Mr. Matsushima's vehicle,
crossing the centerline and colliding with [Thompson's] Toyota
pickup truck." In contrast, the State's rebuttal expert witness,
Anthony Racioppo, testified in relevant part as follows regarding
his "ultimate conclusion of how this collision occurred":
The Corvette [driven by Matsushima] was traveling
southbound on Kamehameha Highway . . . . He was traveling,
in my opinion, not [at] an excessive rate of speed,
traveling in the appropriate lane. And the Toyota [driven
by Thompson] was traveling northbound and coming out of a
curve, driving fast and erratically.
He came out and started entering a very tight radius
curve. And because of the nature of the vehicle being
jacked up and -- jacked up, with larger wheels and hitting a
curve at approximately 50 miles an hour, the Toyota was,
through centrifugal force, was forced outside into the
southbound lanes in front of the path of the Corvette. As
the vehicle approached the Corvette, the Corvette apparently
tried to move out and somehow became out of his lane, I
guess trying to avoid conflict, and the vehicles both hit
each other.
Evidence was also adduced at trial of the following: toxicology
tests on Matsushima following his death indicated "acute
methamphetamine intoxication"; in the area of the collision,
artificial light from streetlights was "going on and off" ("[o]ne
may go out for a matter of a minute or so, and then light back
up"); and, according to Calhoun, a post-collision photograph of
the Corvette showed a closed headlight cover, indicating that the
vehicle's headlights were not activated.
Moreover, during deliberations, the jury submitted the
following question to the Circuit Court, titled "Communication
No. 2 from the Jury": "Of the four material elements of the
offense of negligent homicide, number 1) states that the
defendant caused the deaths. If negligence is shared between the
defendant and the deceased, does that mean that the defendant
alone is guilty beyond a reasonable doubt?"5/ (Emphasis in
5/
The court responded to the jury communication as follows:
For Negligent Homicide in the First Degree, as defined on p.
23 and p. 29 of your jury instructions, element #4 is, "That
the Defendant acted negligently as to each of the foregoing
(continued...)
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original.) This question appears to indicate that the jury was
considering whether Matsushima's conduct affected the issue of
causation and thus Thompson's liability for a negligent homicide
offense.
In light of the evidence adduced at trial, the Circuit
Court plainly erred in failing to instruct the jury as to the
test for actual causation under HRS § 702-214, and the standard
for assessing the defendant's culpability under HRS § 702-216(2).
See Abella, 145 Hawai#i at 556-60, 454 P.3d at 497-501 (holding
that the failure to instruct on intervening causation pursuant to
HRS §§ 702-215 and 702-216 was plain error in a manslaughter
prosecution); State v. Oania, No. CAAP-XX-XXXXXXX, 2020 WL
930285, at *3 (Haw. App. Feb. 26, 2020) (SDO) (holding that the
failure to instruct on "the critical issue of causation" was
plain error in a prosecution for arson in the first degree). We
cannot say that the omission of these instructions was harmless
beyond a reasonable doubt. Because we conclude that the
instructions given regarding causation were "prejudicially
insufficient," we must vacate the Judgment as to Counts One and
Two, vacate the Order of Restitution (which stemmed from the
conviction on Count Two), and remand for a new trial on Counts
One and Two. See Abella, 145 Hawai#i at 561, 454 P.3d at 502
(quoting Nichols, 111 Hawai#i at 334, 141 P.3d at 981).
(2) Given our conclusion as to Thompson's first point
of error, we do not reach Thompson's second and third points of
error.6/
5/
(...continued)
elements." The definition of "negligently" is set forth on
pg. 20, and you must apply this definition.
This definition of "negligently" also applies to all
included offenses (i.e., Negligent Homicide in the Second
Degree, Negligent Injury in the First Degree, Negligent
Injury in the Second Degree), except for Negligent Homicide
in the Third Degree, which requires "simple negligence."
6/
In connection with his second point of error, Thompson summarily
argues that prosecutorial misconduct requires "reversal of [Thompson's]
conviction." However, Thompson expressly states that he "is not appealing the
Count 3 conviction." In addition, the conclusion of Thompson's opening brief
requests "remand for a new trial," i.e., Thompson does not seek to bar a new
trial given his requested relief. We have remanded for a new trial on Counts
One and Two based on Thompson's first point of error.
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For the reasons discussed above, we vacate the Circuit
Court's: (a) September 12, 2019 Judgment of Conviction and
Sentence, only as to Counts One and Two, Negligent Homicide in
the Second Degree; and (b) January 3, 2020 Free Standing Order of
Restitution. The case is remanded to the Circuit Court for a new
trial on Counts One and Two and for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawai#i, February 25, 2022.
On the briefs:
/s/ Lisa M. Ginoza
William H. Jameson, Jr., Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Katherine G. Leonard
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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