First, it would probably be wise not to admit to violating laws on a public forum....that being said, I think the case Chris is referring to is:
STATE OF HAWAII, PLAINTIFF-APPELLEE,
v.
MARK ALAN MARTINS, DEFENDANT-APPELLANT
APPEAL FROM THE SECOND CIRCUIT (CR. NO. 00-1-0234(1)).
E. Prosecutorial Misconduct and Ineffective Assistance of Counsel
As to Martins' conviction for possessing an unloaded shotgun under Count IV (Place to Keep Firearm in violation of HRS § 134-6(c)), Martins claims that the prosecutor committed misconduct by asserting twice in closing argument that it was illegal to reside in one's car and thus prejudiced his right to a fair trial. Because Martins did not bring this to the attention of the circuit court by objecting to the prosecutor's comments, we apply the plain error standard of review in addressing Martins' claim of prosecutorial misconduct. Additionally, Martins argues that "n the alternative, should the court find there was no prosecutorial misconduct herein, then [he] was denied a fair trial due to defense counsel's failure to object" because such failure resulted in the impairment of a potentially meritorious defense -- thus amounting to ineffective assistance of counsel.
During the redirect examination of Detective Dadez, who executed the search warrant on Martins' car, the following exchange took place:
Q: [Prosecutor] Detective Dadez, is there any prohibition in this jurisdiction on living in one's car?
A: [Dadez] Yes, there is.
[Defense Counsel]: Your Honor, I would object, because as far as what the law is, it's the court that instructs the jury as to what the law is. It's not for witnesses to give their legal opinions about what the law is.
THE COURT: I'm going to sustain the objection.
At the ensuing bench conference, the circuit court heard further argument and then reaffirmed its ruling, stating:
THE COURT: I'm just -- I have a problem with the detective now telling the jury what is the law, especially in areas where it's, you know, not alleged that he's violated any of those laws.
You could submit your instructions to show that, you know, it's against the law to be living in a car with your guns or whatever, but I don't think that information needs to come from the detective.
In his closing argument, the prosecutor stated:
Now the law also states, and you are instructed, it is lawful to carry unloaded firearms. Again, this was loaded. But it has to be in an enclosed container, has to be unloaded and in an enclosed container, and only listing specific areas, business, residence, or sojourn. You know sojourn, of course, is defined. Residence, pretty obvious.
The car is typically how you transport it. It is not legal to live in a car, therefore, a car cannot be a residence. Obviously not a place of business. These are establishments. These are structures.
Place of sojourn, as I indicated, means a place, temporary -- to live temporarily, as on a visit.
Say you are going over to Lanai and you are sport shooting and you stay at the Manele Bay Hotel. Your room is your place of sojourn, so you keep your shotgun in your room. That is legal. That makes sense. It is not a car. It cannot be a car because it is against the law to live in a car.
Defense counsel did not object to the prosecutor's argument.
The circuit court instructed the jury on the offense of Place to Keep in Count IV as follows:
A person commits the offense of place to keep a firearm if he possesses a firearm in a place other than his place of business, residence, or sojourn, without a license to carry.
There are seven material elements of the offense of place to keep a firearm, each of which the prosecution must prove beyond a reasonable doubt.
These seven elements are:
1. That on or about the 15th day of May, 2000, in the County of Maui, State of Hawaii, Mark Alan Martins knowingly possessed the object in question; and
2. That the object in question was a firearm; and
3. That, at the time he possessed the object in question, Mark Alan Martins believed, knew, or recklessly disregarded the substantial and unjustifiable risk, that the object was a firearm; and
4. That, at that time, Mark Alan Martins was in a place other than his place of business, residence, or sojourn; and
5. That, at that time, Mark Alan Martins believed, knew, or recklessly disregarded the substantial and unjustifiable risk, that he was in a place other than place of business, residence, or sojourn; and
6. That, at that time, Mark Alan Martins did not have a license to carry; and
7. That, at that time, Mark Alan Martins believed, knew, or recklessly disregarded the substantial and unjustifiable risk, that he did not have a license to carry.
"Place of sojourn" was defined in the instruction given to the jury as "a place to live temporarily as on a visit; place to stay for a while." "Residence" was not defined in the instructions. After jury deliberations began, the jury foreperson forwarded Jury Communication No. 1, consisting of the following two questions, to the trial judge: (1) "What is the legal definition of residence?" and (2) "Can a vehicle legally be considered a sojourn or residence?" In response to the two questions, the trial judge and counsel had the following discussion:
[THE COURT]: The Court has discussed this with the attorneys.
And, [Mr. Prosecutor], what was your proposed response?
[PROSECUTOR]: That as far as jury question number one, the legal definition of residence, that we cannot provide them with one. Only a dictionary definition.
As to the second question, . . . which was can a --
THE COURT: -- Vehicle legally be considered a sojourn or residence?
[PROSECUTOR]: And that's in the context of Chapter 134, or the place to keep statutes. It cannot be considered. A vehicle cannot be considered a residence or place of sojourn. And that's based on not only analysis of the different sections in Chapter 134, but also on Section 291C-112*fn8 of the Hawaii Revised Statutes, which prohibits persons from using any vehicle for purposes of human habitation, including dwelling place, living abode or sleeping place. And also State v. Sturch, 82 Haw. 269, 921 P.2nd [sic] 1170, Appellate 1996[,] nterpreted Section 291C-112.
THE COURT: [Defense Counsel].
[DEFENSE COUNSEL]: I think we have already hashed this out and I agreed with the Court's instruction that it is going to give.
THE COURT: All right. I believe that we cannot legally define "residence," there having been no instruction offered on what "residence" is. The only instruction is defendant's requested instruction residence, implying something more than mere physical presence, less than something -- less than domicile. Residence is not synonymous with domicile. And while a person may have more than one residence, that person may have one legal domicile.
The Court refused that as argument. Other than that, no instruction was offered or suggested by the Court to be given, and I do not think we can now legally define residence for them, unless everybody agrees that a dictionary "residence" definition goes in, which not all parties are agreeing.
As to the second question, can a vehicle legally be considered a sojourn or residence. The Court believes that the jury is asking the Court to decide, you know, an issue before them. So it declines to do so. What the Court's response will be is, "Please refer to all of the jury instructions that you have received in this case." Okay?
[DEFENSE COUNSEL]: Yes, your Honor.
THE COURT: All right. I'm going to send that in. I have signed it, dated it, and it's now 2:41 p.m.
(Footnote added.)
It was for the court, not counsel, to instruct the jury regarding the law applicable to the facts of the case. Hawaii Rules of Evidence Rule 1102; State v. Hatori, 92 Hawaii 217, 220, 990 P.2d 115, 118 (App. 1999). The circuit court invited the prosecutor to submit a jury instruction that "it's against the law to be living in a car with your guns" when the circuit court sustained defense counsel's objection to the prosecutor's question to Detective Dadez on this issue. The prosecutor did not submit such an instruction and only belatedly suggested one by referring to HRS § 291C-112 in response to the jury's question on whether a vehicle would be legally considered a sojourn or residence.
The prosecutor's argument, however, was not an incorrect statement of law, as in State v. Mahoe, 89 Hawaii 284, 290, 972 P.2d 287, 293 (1998).*fn9 As such, the prosecutor's statements that "a car cannot be a residence" and "it is against the law to live in a car" did not "seriously affect the fairness, integrity, or public reputation of judicial proceedings" arising to the level of plain error. Vanstory, 91 Hawaii at 42, 979 P.2d at 1068. Additionally, we conclude Martins' claim of ineffectiveness of counsel on this point is without merit. Martins has not met his burden of demonstrating that his counsel's failure to object to the prosecutor's comments "resulted in the withdrawal or substantial impairment of a potentially meritorious defense." Briones, 74 Haw. at 462-63, 848 P.2d at 976.
F. Sufficient Evidence of Place to Keep Firearm
Martins argues there was insufficient evidence to sustain his conviction under Count IV, Place to Keep Firearm, because his car was his residence or place of sojourn. This argument is without merit.