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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0002043
                                                              30-MAY-2018
                                                              09:22 AM

           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                             TRACY SOUZA,
                   Petitioner/Defendant-Appellant.


                            SCWC-13-0002043

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

                              MAY 30, 2018

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

                OPINION OF THE COURT BY POLLACK, J.

          In State v. Murray, 116 Hawaii 3, 169 P.3d 955 (2007),

this court held that if a defendant offers to stipulate to the

prior conviction element of a charged offense, the trial court

must accept the stipulation.      This appeal arises from a

challenge by Tracy Souza asserting that the circuit court

refused to accept his offer to stipulate to his prior felony
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conviction, which constituted an element of an offense with

which he was charged.     We hold that the manner in which the

circuit court addressed Souza’s offer to stipulate to the prior

conviction element was inconsistent with our decision in Murray.

Because this error was not harmless beyond a reasonable doubt,

we vacate the judgment and remand the case for further

proceedings consistent with this opinion.

                              I. BACKGROUND

          On July 16, 2012, Souza was charged by felony

information in the Circuit Court of the First Circuit (circuit

court) with place to keep unloaded firearms other than pistols

and revolvers, in violation of Hawaii Revised Statutes (HRS) §

134-24 (hereinafter “place to keep firearm”),1 and ownership or

     1
          HRS § 134-24 (2011) provides in relevant part as follows:

                (a) Except as provided in section 134-5, all firearms
          shall be confined to the possessor’s place of business,
          residence, or sojourn; provided that it shall be lawful to
          carry unloaded firearms in an enclosed container from the
          place of purchase to the purchaser’s place of business,
          residence, or sojourn, or between these places upon change
          of place of business, residence, or sojourn, or between
          these places and the following:

                (1) A place of repair;

                (2) A target range;

                (3) A licensed dealer’s place of business;

                (4) An organized, scheduled firearms show or exhibit;

                (5) A place of formal hunter or firearm use training
          or instruction; or


                                                             (continued . . .)


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possession prohibited of any firearm or ammunition by a person

convicted of certain crimes, in violation of HRS § 134-7(b)

(hereinafter “prohibited possession of firearm”).2              Souza pleaded

not guilty to the charges, and a jury trial was held.3

                          A.    Proposed Stipulation

            Prior to jury selection, the circuit court discussed

with both parties the subject of a possible stipulation as to

Souza’s previous conviction of a felony offense.            The court

noted that both the State and Souza drafted proposed

stipulations but that an agreement had not been reached as to

which version would be used at trial.         The court stated the

following:

                  After reviewing both of the stipulations, it’s my
            view, that, absent a specific agreement by both of you,
            then the State would be perfectly within its right to call
            whatever witnesses they felt are necessary and relevant --
            obviously it would be -- have to be approved and permitted
            by the Court -- to establish that element of a prior
            conviction.


(. . . continued)

                    (6) A police station.
      2
            HRS § 134-7 provides in relevant part as follows:

                  (b) No person who is under indictment for, or has
            waived indictment for, or has been bound over to the
            circuit court for, or has been convicted in this State or
            elsewhere of having committed a felony, or any crime of
            violence, or an illegal sale of any drug shall own,
            possess, or control any firearm or ammunition therefor.

HRS § 134-7(b) (2011).
      3
            The Honorable Rom A. Trader presided.




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                     And, so, with that, [defense counsel], has Mr. Souza
               arrived at any decisions as to whether or not he’ll accept
               the State’s version of the stipulation?

               Defense counsel responded, “Yes,” and indicated that

he wished to make a record.          Counsel stated that while the

defense was seeking to exclude the naming of Souza’s prior

convictions, the State’s stipulation included facts that were

not elements of the offense of prohibited possession of firearm

and therefore they were not relevant.4            As an example, defense

counsel cited paragraph 3 of the State’s proposed stipulation--

regarding Souza not having been pardoned of the prior

conviction--as already covered by Souza’s stipulation that he

has a prior conviction.          Counsel also pointed to paragraph 4 of

the State’s proposed stipulation--that Souza was prohibited from

      4
               The record on appeal does not include Souza’s proposed
stipulation.     The State’s proposed stipulation provided, inter alia, as
follows:

               1. As of July 11, 2012, the Defendant, Tracy Souza, had
                  been convicted of a felony offense in the State of
                  Hawaii.

               2. As of July 11, 2012, the Defendant, Tracy Souza, knew
                  that he had been convicted of a felony offense in the
                  State of Hawaii.

               3. The Defendant, Tracy Souza, has not been pardoned for
                  such felony offense.

               4. As a result of this conviction, the Defendant, Tracy
                  Souza, is prohibited from owning or possessing any
                  firearms or ammunition.

               5. As a result of this conviction, the Defendant, Tracy
                  Souza, knew that he was prohibited from owning or
                  possessing any firearms or ammunition.




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owning or possessing firearms as a result of his prior

conviction--as being a statement of law and not an element of

the offense.    Additionally, defense counsel referenced paragraph

5 of the State’s proposed stipulation--that Souza knew he was

prohibited from owning or possessing any firearms--as also not

being an element of the prohibited possession of firearm

offense.    Souza requested that, even if the defense did not

agree to the State’s proposed stipulation, the State be

precluded from presenting evidence as to these matters.             Defense

counsel continued as follows:

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

            Although the State acknowledged that pursuant to State

v. Murray the defense had the right to stipulate to the name and

nature of the offense, the State asserted that it still needed

to prove that it was a Hawaii court that had issued the prior

judgment.    The State indicated that it intended to provide such

proof by entering a certified, sealed judgment of the conviction

subject to redaction.      Defense counsel disagreed with the State




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that it was required to prove the jurisdiction of the court that

rendered the prior judgment.5

           The State also contended that it needed to prove that

Souza knew he was prohibited from owning or possessing firearms.

Thus, the State would not agree to Souza’s proposed stipulation

because it did not want to be precluded from offering evidence

as to what the State believed were elements of the offense that

the State was required to prove to obtain a conviction.             The

court then inquired of the State whether it believed that,

absent the stipulation, it would be entitled under caselaw to

introduce the matters contained in its stipulation, or

alternately, whether it intended to present evidence of such

matters even with the stipulation.         The State responded that it

did not want the situation to be cast in a light where Souza was

forced to accept its proposed stipulation and if that was the

case it would withdraw its proposed stipulation.            The State

again acknowledged that Souza had the right under Murray to

stipulate to preclude the name and nature of the prior

conviction.    At the same time, the State contended that, absent

a broader stipulation, it would need to introduce evidence of



     5
            The court indicated that it tended to agree with the defense as
to its position on this issue. However, the jurisdictional fact was included
in the stipulation that was read to the jury. See infra § I-C.




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Souza’s state of mind with respect to the firearm prohibition.

The State continued,

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

          Defense counsel disagreed that the State was required

to prove that “Souza knew he was prohibited or even reckless

about being prohibited from possessing” a firearm.           Souza

maintained that this state of mind is not an element of the

offense of prohibited possession of firearm.          And because

knowledge or recklessness as to the statute’s prohibition was

not relevant to proof of the offense, defense counsel contended

that the State should be precluded from calling the probation

officer for such testimony.

          The court stated that it seemed the language in the

felony information did involve Souza’s state of mind.            Defense

counsel responded that Souza’s stipulation included his state of

mind as to having been convicted but not that Souza knew he was

prohibited from owning or possessing a firearm.          The court

responded as follows:

          THE COURT: Basically this is the situation, and if Mr.
          Souza, after discussing with you the pros and cons of the
          stipulation and the pros and cons of deciding not to agree
          to enter into the stipulation as proposed by the State --
          and it’s his choice -- if he decides that he -- the
          stipulation as proposed is unacceptable to him, the Court
          is certainly not going to do anything to try to persuade
          him or convince him that, you know, he should do that.



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          That’s entirely up to him. And so -- but if, however, he
          chooses, after thinking about it and talking to you about
          it, making a decision, and upon voir dire by the Court that
          that’s what he wants to do, then the stipulation will stand
          as it is. So I’ll give you some time to talk to him. But
          certainly prior to opening statement we’ll reach a
          resolution on the stipulation.

Defense counsel asked the court whether it was ruling that

“Souza’s state of mind with regard to . . . [paragraphs] 4 and 5

. . . that he knew he was prohibited from owning or possessing

firearms or ammunition, that the Court is of the belief . . .

that that is relevant.”       The court responded, “Yes.”

          Following jury selection, the court asked the parties

whether an agreement had been reached regarding the proposed

stipulations.   Defense counsel stated that “because of the

court’s rulings,” Souza was going to stipulate to the five

enumerated paragraphs that the State proposed although he

originally had no desire to do so.

          The court then conducted a colloquy, and Souza

acknowledged that he agreed to the State’s proposed stipulation.

The court found that Souza voluntarily entered into the

stipulation with the requisite knowledge and understanding.

                         B.     Trial Testimony

          On July 11, 2012, Dennis Crail, a security agent for

the Board of Water Supply, responded to a report of homeless

people or trespassers on state property located at 2530 Likelike




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Highway.6   While searching the property, Crail discovered a blue

tent that was situated on Board of Water Supply land.             Crail

testified that he was approximately thirty feet from the tent

when he saw a male exit that tent.         The male had his back turned

toward him, Crail stated, but the male later turned sideways,

allowing Crail to see the side of his face.           Crail later

identified the male as Souza.        Crail acknowledged that he had

not seen Souza prior to the incident.

            According to Crail, Souza was carrying in his hand

what appeared to be a rifle case.         Crail observed Souza take

something out of the case and hold it in his right hand; when

Souza raised his hand, Crail could see the stock of a rifle.

Crail testified that he saw Souza hold the rifle for about three

minutes.    Crail then retreated a safe distance and called 911.

Crail later learned that there were two other persons with

Souza--a male and a female--but testified that he was sure he

saw Souza with the rifle.

            Brianna Lincoln-Chong, who was with Souza on the day

he was arrested, testified that she and Souza had arrived at the

wooded area on Likelike Highway earlier that day.            Souza went to

      6
            Crail testified that the state property at 2530 Likelike Highway
had none of the following: a target range for firearms, a place of repair for
firearms, a licensed firearm dealer’s place of business, an organized
scheduled firearm show or exhibit, a place of formal hunter or firearm use
training, and a police station.




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check hunting traps, and then she and Souza hiked to a campsite.

When the police arrived, Souza was asleep.          Chong stated that

Souza never had the rifle in his possession during the entire

time from when she arrived at the campsite until John Wilcox

arrived.   Chong explained that Wilcox asked her if she had seen

a case for the rifle and that Wilcox had the rifle in his hand

at that time.7

           Chong acknowledged that in her statement to police she

wrote that only Souza had possession of the rifle and that the

rifle was brought out when she and Souza left for the hike and

put back into the case when they reached the campsite.             However,

she explained that when she made the statement, she was scared

and felt threatened by the possibility of going to jail.             Chong

testified that she had been handcuffed and held for questioning

and that she was not allowed to leave until she made a

statement.    She stated that she told the police that she did not

know whose rifle it was and did not initially include in the

statement anything about Souza holding it.          Chong testified that

the police made her add at the end of her statement that Souza


     7
            The State also presented the testimony of Honolulu Police
Department (HPD) officers who responded to the reported incident (but did not
view the alleged carrying), an HPD detective who interviewed Crail, HPD
personnel who examined the rifle and who kept records of permits or licenses
to carry firearms, and an employee of the Board of Water Supply who testified
that the property at 2530 Likelike Highway is state property.




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had possessed the rifle.8       Because she had never been in trouble

or been arrested before, Chong said, she “just cooperated and

did whatever [the police] wanted [her] to do” in order to leave

the police station.      Chong acknowledged that Souza is a family

friend and that she did not want to testify because she felt she

could be the reason for Souza going to jail.

           John Wilcox testified that he and Souza had found the

rifle in the bushes the day earlier when they were pig hunting.

Wilcox stated he had picked up the rifle and put it in the

bushes where he and Souza were camping.

           The next day when Wilcox arrived at the campsite,

Souza was asleep in the tent.        Wilcox testified that he

retrieved the rifle from the bushes.         A little while later, he

heard tires screeching, saw the police officers, ran back to the

tent, and woke Souza up.       Wilcox asked Souza what he should do

with the rifle, and Souza said to get rid of it.            Wilcox put the

rifle back in the bushes where he had placed it earlier.             He

testified that Souza never handled the rifle and that he had

never seen Souza pick it up.        He further testified that he

understood it was possible that he could get in trouble by




     8
            The final two sentences in Chong’s written statement read, “John
[Wilcox] never had the gun in his possession. Only Tracy [Souza] did.”




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testifying.   And although Souza was his friend, Wilcox explained

he was not making up a story to help Souza.

          On cross-examination, Wilcox indicated that the rifle

did not have a magazine, nor was it loaded when it was found.

Wilcox stated that at no point was the rifle fired either on the

day it was found or on the following day.         Wilcox acknowledged

that he did not have a license or permit to carry or acquire the

rifle.   Wilcox also related that he had known Souza for a little

over a year and they were friends and did side jobs together.

               C.    Stipulation and Jury Instructions

          At the end of the State’s case-in-chief, the circuit

court informed the jury that the State and Souza had reached a

stipulation and that the stipulated facts were true and accurate

and would be admitted into evidence in lieu of other evidence or

testimony.    The court then read the stipulation as follows:

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




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The court then advised the jury that one of the elements of

prohibited possession of firearm is referred to as the “prior

conviction element” and requires the State to prove that Souza

was previously convicted of a felony.         The court explained that

the State and Souza had stipulated to this element, meaning that

both sides agreed that Souza has a prior felony conviction.                 The

court stated that based on this stipulation the jury must accept

as proven beyond a reasonable doubt the prior conviction

element.9

            At the conclusion of the evidence, the court

instructed the jury on the elements of the offense of prohibited
     9
            The court’s instruction as to the stipulation stated as follows:

            One of the elements of the alleged offense in Count II of
            Ownership or Possession of Any Firearm or Ammunition by a
            Person Convicted of Certain Crimes requires the Prosecution
            to prove beyond a reasonable doubt that Defendant Tracy
            Souza had been previously convicted of a felony. This
            element is referred to as the “prior conviction element” of
            the offense. The Defense and the Prosecution have
            stipulated to this element, which means that both sides
            agree that Defendant has a prior felony conviction. Based
            on this stipulation, you must accept as proven beyond a
            reasonable doubt the “prior conviction element.” You must
            not consider the stipulation for any other purpose. You
            must not speculate as to the nature of the prior
            conviction. Do not consider this evidence for any other
            purpose. You must not use this evidence to conclude that
            because the defendant at another time has committed a crime
            that he is a person of bad character and, therefore, must
            have committed the offenses charged in this case. In
            considering the evidence for the limited purpose of which
            it has been received, you must weigh it in the same manner
            as you would all other evidence in this case and consider
            it along with all other evidence in this case.

The instruction was given again, substantially verbatim, at the close of
evidence.




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possession of firearm.      The court reiterated that the State and

Souza had stipulated to the prior conviction element, meaning

that both sides agreed that Souza has a prior felony conviction,

and that this element must be accepted as proven beyond a

reasonable doubt.

           The jury found Souza guilty of both charged offenses.

Souza was sentenced to five years of probation in each count,

with the terms to run concurrently.         As part of Souza’s

probation sentence, the court imposed concurrent jail terms of

thirty days with credit for time served.          Souza filed a notice

of appeal to the Intermediate Court of Appeals (ICA) from the

Judgment of Conviction and Probation Sentence (judgment).

                           II.   ICA PROCEEDINGS

           In his opening brief, Souza contended that he offered

to stipulate to the prior conviction element of the prohibited

possession of firearm charge but that the circuit court refused

to accept his stipulation unless he agreed to the State’s

proposed stipulation.10

           Souza explained that he and the State discussed his

intent to admit to his prior felony conviction and to his

knowledge of that conviction, but that they differed as to

     10
            Souza raised three other points of errors, none of which were
raised in his application for a writ of certiorari, and thus they are not
addressed.




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agreeing to other matters in the stipulations.          Souza noted that

the State made it clear that if he did not accept its

stipulation it would call a witness to establish that Souza knew

his prior conviction prohibited him from owning or possessing

firearms.    Souza added that the State informed the court that it

would also seek to admit a redacted version of the certified

judgment of the prior felony conviction to prove that the

conviction occurred in the State of Hawaii.         Souza argued that

these facts were not elements of the offense and were unduly

prejudicial.

            Souza maintained that the court admonished him that if

he did not accept the State’s proposed stipulation, the State

would be free to call any witnesses it felt were necessary to

establish the prior felony conviction.         The circuit court, Souza

continued, conditioned the acceptance of his offer to stipulate

to other evidence requested by the State.         Souza argued that the

court’s error was not harmless and that such error infected the

jury’s verdict as to both of the charged offenses.           Accordingly,

Souza requested that the judgment be vacated and the case

remanded for a new trial.

            In its answering brief, the State responded that

neither it nor the circuit court forced Souza to accept the

State’s proposed stipulation.       The State maintained that both




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parties had their own versions of the stipulation but that they

did not reach an agreement as to either version.            The State

argued that the point of contention was whether the stipulation

should include that Souza was prohibited from owning or

possessing firearms as a result of his prior conviction and that

he knew he was prohibited from such ownership or possession.

The State contended that it was required to show that Souza

acted with the requisite state of mind to prove the prohibited

possession of firearm charge.        The State concluded that it was

Souza’s choice to agree to the State’s stipulation and that

there was nothing in the record indicating that Souza would have

been prevented from stipulating to his prior conviction had he

not accepted the State’s proposed stipulation.

           In a summary disposition order (SDO), the ICA affirmed

the circuit court’s judgment.11       The ICA determined that the

transcript of proceedings contradicted Souza’s contention that

he was forced to decide between accepting the State’s proposed

stipulation and not being allowed to stipulate.           The ICA

indicated that the parties and the circuit court did not discuss

whether the court would accept Souza’s stipulation.            However,

the ICA stated that “they did discuss that in the event that

     11
            The ICA’s SDO can be found at State v. Souza, NO. CAAP-13-
0002043, 2017 WL 2797598 (Haw. App. June 28, 2017).




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Souza’s stipulation was entered, whether the State would be

allowed to call Souza’s probation officer to establish that

Souza knew that he was not allowed to possess firearms.”

Accordingly, the ICA concluded that the circuit court complied

with the Murray decision.

                            III. DISCUSSION

       A.     Failure to Comply With the Murray Requirements

            A defendant has a due process right to have each

element of an offense proven beyond a reasonable doubt; this

right is protected by the federal and state constitutions and

HRS § 701-114.    State v. Murray, 116 Hawaii 3, 10, 10 n.8, 169

P.3d 955, 962, 962 n.8 (2007) (citing U.S. Const. amend. XIV, §

1; Haw. Const. art. I, § 5).      Thus, where a prior conviction is

an essential element of the offense charged, the State must

prove the prior conviction beyond a reasonable doubt.            Id. at

10, 169 P.3d at 962.

            In this case, Souza was charged with violating HRS §

134-7(b), which provides, “No person who . . . has been

convicted in this State or elsewhere of having committed a

felony, or any crime of violence, or an illegal sale of any drug

shall own, possess, or control any firearm or ammunition

therefor.”    Hence, to establish that Souza violated HRS § 134-

7(b), the State was required to prove, inter alia, that Souza




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was previously convicted of a felony, any crime of violence, or

an illegal sale of any drug.

            A defendant may offer to stipulate to the prior

conviction element of a charged offense.         If the defendant does

so, “the court must accept [the] stipulation.”          Murray, 116

Hawaii at 21, 169 P.3d at 973.      The stipulation may be accepted

only after the court has engaged the defendant in an on-the-

record colloquy regarding the defendant’s constitutional rights

and has ensured that the defendant “is making a knowing and

voluntary waiver of his right to have the prior convictions

proven beyond a reasonable doubt and decided by a jury.”            Id.

Following acceptance of the stipulation, the court must instruct

the jury, inter alia, that the defendant has stipulated to the

prior conviction element of the charged offense to make it clear

that this element is conclusively proven beyond a reasonable

doubt.    Id.    “The instruction must be carefully crafted to omit

any reference to the ‘name or nature’” of the prior conviction,

and “[t]he court must also preclude any mention of the nature of

[the defendant’s] prior convictions at any point during the

trial.”    Id.

            In this case, Souza had a prior conviction that

constituted an element of the prohibited possession of firearm

charge.    Thus, under Murray, Souza was allowed to stipulate to




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the prior conviction element, which stipulation “the court must

accept.”   116 Hawaii at 21, 169 P.3d at 973.        Souza contends

that the circuit court violated this requirement by refusing to

accept his offer to admit to the prior conviction element.               The

ICA disagreed, stating that “the Circuit Court did not

explicitly discuss whether the court would accept Souza’s

stipulation.”   The transcript of proceedings contradicts this

holding, however.

           The State and Souza each drafted proposed stipulations

regarding the prior conviction element.         The circuit court

informed the parties that it had received and reviewed both the

State’s and Souza’s stipulations and would allow the State to

call witnesses to prove the conviction element if the parties

did not reach an agreement:

           After reviewing both of the stipulations, it’s my view,
           that, absent a specific agreement by both of you, then the
           State would be perfectly within its right to call whatever
           witnesses they felt are necessary and relevant -- obviously
           it would be -- have to be approved and permitted by the
           Court -- to establish that element of a prior conviction.

(Emphases added.)    The circuit court thus stated that only an

agreement by both counsel as to the stipulation to be given

would preclude the State from calling witnesses to establish the

element of the prior conviction.         By expressing that the State

would be permitted to call witnesses if an agreement was not

reached, the court was stating that it would not accept Souza’s

stipulation to the conviction element “absent an agreement by


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both” parties.    In other words, the circuit court declined to

accept Souza’s stipulation on its own, without the State’s

consent--a ruling that Murray squarely forecloses.           See 116

Hawaii at 21, 169 P.3d at 973 (“[T]he court must accept [the]

stipulation.”).

           Souza further argues that the circuit court

conditioned his right to admit the prior conviction element on

his agreement to enter into the form of stipulation proposed by

the State, which contained additional information to which he

did not wish to stipulate.      As discussed, the court stated at

the outset that, absent an agreement between the State and

Souza, the State would be entitled to call witnesses to

establish the prior conviction element of the prohibited

possession of firearm charge.       Under Murray, Souza was entitled

to admit to the prior conviction element and preclude the

introduction of evidence to prove this element of the charged

offense.   This entitlement exists whether or not the State

agrees to the form of the stipulation in which the defendant

admits to the prior conviction.       Instead of informing Souza of

this right, the court told Souza he could either reach an

agreement with the State as to the form of the stipulation or

the State could call necessary and relevant witnesses to prove

the element of the prior conviction.




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          The court then compounded its error by asking defense

counsel the following question: “And, so, with that . . . has

Mr. Souza arrived at any decisions as to whether or not he’ll

accept the State’s version of the stipulation?”          Souza, however,

was under no obligation to elect whether to accept the State’s

version of the stipulation.      The circuit court should only have

confirmed Souza’s intention to admit to the prior conviction,

and once Souza so indicated, that should have been the end of

the discussion.

          The court did not correct its misstatements; as a

result, its subsequent statements to defense counsel aggravated

the approach that the court had followed.

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

(Emphases added.)    Thus, the court gave Souza two choices: “not

to agree to enter into the stipulation as proposed by the

State,” which had pro and cons, or accept the State’s

stipulation, which also had pros and cons.         But, as discussed,

under Murray, the choice should not have been whether to accept


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or not accept the State’s proposed stipulation in light of the

“pros and cons.”     Instead, under the circumstances, Souza had an

absolute right to have his offer to admit to the prior

conviction accepted by the court.12

           The circuit court’s misapprehension of the procedures

adopted in Murray was underscored when it informed Souza that he

could reject the State’s stipulation (which as the court had

previously explained essentially meant that the State could call

whatever witnesses it wished to prove the prior conviction), or

accept the State’s stipulation without any modification (“then

the stipulation will stand as it is”).          (Emphasis added.)      But

the court should have either modified the State’s proposed

stipulation in a manner that was consistent with this court’s

decision in Murray or, alternatively, accepted Souza’s proposed

stipulation.    The circuit court therefore erred when, instead of

accepting Souza’s proffered stipulation to the prior conviction

element as required by Murray, it presented Souza with the

choice of accepting or not accepting the State’s stipulation.




      12
             The State asserted that it was Souza’s choice whether or not to
enter into the stipulation in the State’s proffered form. The mere assertion
that Souza was not required to agree to the form of stipulation that the
State submitted did not alter the court’s non-acceptance of Souza’s proposed
stipulation.




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B.    The Procedure Utilized by the Circuit Court Compromised the
                   Protections Adopted in Murray

           In Murray, we recognized the inherent difficulties

that arise in providing a fair trial to a defendant who is

charged with an offense of which a previous criminal conviction

forms a requisite element.       On the one hand, a defendant

possesses a constitutional due process right to be convicted

only when the State proves every element of an offense beyond a

reasonable doubt, including that of a prior conviction.             State

v. Murray, 116 Hawaii 3, 10, 169 P.3d 955, 962 (2007).            On the

other hand, the introduction of evidence regarding a defendant’s

previous crimes injects undue prejudice into the proceedings

because it may lead the jury to make its decision on an improper

basis, such as the belief that the defendant is a bad person

with criminal inclinations.       Id. at 19, 169 P.3d at 971.

           To resolve this tension, we held that a defendant has

an unconditional right to make a knowing and voluntary waiver of

the requirement that a previous conviction be proven beyond a

reasonable doubt.     Id. at 21, 169 P.3d at 973.        By exercising

this unconditional right, a defendant may admit to the element

and remove the previous conviction from contention, ensuring

that the jury is not exposed to potentially prejudicial evidence

about the nature of the previous offense.          Id.   If the waiver is

knowing and voluntary, the court must accept the stipulation



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unconditionally.    Id.   This approach protects the defendant’s

constitutional due process right to a fair trial to the greatest

extent possible while minimizing the likelihood that the jury

will improperly consider the details of a previous crime as it

relates to the defendant’s character.

          Here, the Murray stipulation was used by the circuit

court as a basis to make evidentiary rulings not applicable to

such a stipulation in a manner that exposed the jury to

information unrelated to the defendant’s prior conviction.             In

addition, because this extraneous information was contained in a

stipulation, the jury was required to treat it as conclusive.

Thus, rather than striking a balance between competing

interests, the approach taken in this case contravened the

protections adopted in Murray.

   1.  The stipulation procedure was improperly combined with
 evidentiary rulings to determine the scope of the stipulation.

          The circuit court departed from the procedures

required by Murray by combining preliminary evidentiary rulings

with its consideration of Souza’s stipulation.          Souza argued

that several paragraphs contained within the State’s proposed

stipulation were not elements of the prohibited possession of




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firearm charge, were irrelevant, and were prejudicial.13             The

circuit court disagreed, stating that the paragraphs were

relevant and even went so far as to specify which witnesses it

might permit to testify on the matter if Souza did not accept

the stipulation.14

           The court’s evaluation of admissibility should have

been separate and distinct from the only determination at issue

in Souza’s Murray stipulation--namely, whether Souza knowingly

and voluntarily admitted the prior conviction element of the

prohibited possession of firearm charge.          Murray required that

the court unconditionally accept Souza’s admission of the prior

conviction element if Souza so agreed to it.           116 Hawaii at 21,

169 P.3d at 973.     All other issues were immaterial to the

     13
            Specifically, Souza argued against paragraphs three, four, and
five. Paragraph three stated the following: “The Defendant, Tracy Souza, has
not been pardoned for [the previous] felony offense.” Paragraph four read as
follows: “As a result of [his prior] conviction, the Defendant, Tracy Souza,
is prohibited from owning or possessing any firearms or ammunition.”
Paragraph five stated as follows: “As a result of [the prior] conviction, the
Defendant, Tracy Souza, knew that he was prohibited from owning or possessing
any firearms or ammunition.” It is noted that the court correctly did not
instruct the jury that the lack of a pardon, the fact of the prohibition, and
Souza’s knowledge of the prohibition were elements of the prohibited
possession of firearm offense, despite the inclusion of these paragraphs in
the State’s stipulation.
     14
             The State explained that, if Souza did not agree to the State’s
proposed stipulation, it intended to call Souza’s probation officer to prove
that Souza was aware that he was prohibited from owning or possessing
firearms. The circuit court ruled that Souza’s state of mind with respect to
the prohibition was relevant to the prohibited possession of firearm offense
and that it would permit the State to call the witnesses the State deemed
necessary to prove the matter if Souza did not agree to the State’s
stipulation.




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analysis.      By combining the Murray ruling with unrelated

evidentiary matters, the circuit court intermingled the

determinations, compromising Souza’s fundamental right to remove

his prior conviction from consideration.

  2.      The contents of the State’s stipulation far exceeded the
                  parameters of a Murray stipulation.

             In Murray, the defendant was charged with a recidivist

abuse offense for which the prosecution was required to prove,

inter alia, “that the violation was Petitioner’s ‘third or any

subsequent offense that occur[ed] within two years of a second

or subsequent conviction.’”         116 Hawaii at 7, 169 P.3d at 959

(alteration in original) (quoting HRS § 709–906(7) (Supp.

2004)).     We held that this requirement of a previous conviction

within the specified time frame was an attendant circumstance

that was an element of the offense and that the defendant had an

unconditional right to stipulate to that previous conviction

element.     Id. at 8, 21, 169 P.3d at 960, 973.

             Here, the court instructed the jury that Souza was

charged with a crime for which the prosecution needed to prove

the following elements:

             [1) T]he defendant intentionally or knowingly possessed or
             controlled the object in question; and 2) that the object
             in question was a firearm; and 3) that at the time he
             possessed or controlled the object in question Defendant
             believed, knew, or recklessly disregarded a substantial and
             unjustifiable risk that the object was a firearm; and 4)
             that prior to July 11, 2012, the defendant was convicted of
             committing a felony offense; and 5) that at the time he
             possessed or controlled the object in question the



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             defendant believed, knew, or recklessly disregarded the
             substantial and unjustifiable risk that he had previously
             been convicted of a felony offense.

Under Murray, Souza had a right to stipulate to the final two

elements in order to prevent the jury from hearing about the

name and nature of his previous conviction.            That right could

not be conditioned on Souza stipulating to any other

information.     The State’s proposed stipulation was far more

extensive.     The stipulation read as follows:

             1.    As of July 11, 2012, the Defendant, Tracy Souza, had
             been convicted of a felony offense in the State of Hawaii.
             2.    As of July 11, 2012, the Defendant, Tracy Souza, knew
             that he had been convicted of a felony offense in the State
             of Hawaii.
             3.    The Defendant, Tracy Souza, has not been pardoned for
             such felony offense.
             4.    As a result of this conviction, the Defendant, Tracy
             Souza, is prohibited from owning or possessing any firearms
             or ammunition.
             5.    As a result of this conviction, the Defendant, Tracy
             Souza, knew that he was prohibited from owning or
             possessing any firearms or ammunition.

Only the first two paragraphs were covered by our Murray

holding.15    The State argued that the remaining paragraphs

constituted elements of the offense, which was incorrect.                But

this is ultimately beside the point--even other elements of the

offense are beyond the scope of a Murray stipulation.

     15
            It is noted that paragraphs 1 and 2 are not entirely encompassed
by the decision in Murray. Both paragraphs indicate that Souza was
previously convicted in the State of Hawaii. Souza correctly argued to the
circuit court that the jurisdiction of the court that rendered the judgment
of the prior conviction is not an element of the prohibited possession of
firearm offense. In relevant part, HRS § 134-7(b) provides that “[n]o person
who . . . has been convicted in this State or elsewhere of having committed a
felony . . . shall own, possess, or control any firearm.” (Emphasis added.)




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            The harm caused by the error was realized when the

court read the stipulation to the jury in its entirety.             In

other words, the result of the Murray stipulation here was to

expose the jury to more prejudicial information rather than

less.

            Instead of taking Souza’s prior conviction out of

contention, the stipulation made it a central focus and further

communicated to the jury that Souza had not been pardoned and

was aware that his possession of a firearm was prohibited.               And,

as Souza pointed out to the circuit court, the stipulation

confused the issues by including a statement of law--that

Souza’s conviction prevented him from owning or possessing

firearms.    In sum, the stipulation increased the likelihood that

the jury would make its decision on an improper basis--the

precise opposite of what a Murray stipulation is intended to

accomplish.

    C.      The Circuit Court’s Error Was Not Harmless Beyond a
                           Reasonable Doubt

            Given the circumstances of this case, it cannot be

said that the circuit court’s error in not accepting Souza’s

stipulation was harmless beyond a reasonable doubt.           “In

applying the harmless beyond a reasonable doubt standard[,] the

court is required to examine the record and determine whether

there is a reasonable possibility that the error complained of



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might have contributed to the conviction.”          State v. Mundon, 121

Hawaii 339, 368, 219 P.3d 1126, 1155 (2009) (alteration in

original) (quoting State v. Balisbisana, 83 Hawaii 109, 114, 924

P.2d 1215, 1220 (1996)).

           This is not a case “[w]here there is a wealth of

overwhelming and compelling evidence tending to show the

defendant guilty beyond a reasonable doubt.”           State v. Rivera,

62 Haw. 120, 127, 612 P.2d 526, 532 (1980).           The evidence

adduced at trial established that Crail was the only witness who

identified Souza as the person in possession of the rifle.

Crail admitted that he had not had any contact with Souza prior

to the underlying incident in this case.          Crail further

testified that he was approximately thirty feet away from the

tent when he saw Souza carrying the rifle, that Souza had his

back turned toward him, and that he later saw only the side of

Souza’s face.

           The evidence also included testimony that there were

two other persons with Souza on the day in question, Chong and

Wilcox.   Chong testified that Souza never had the rifle with him

or in his possession during the entire time from when she

arrived at the campsite until Wilcox arrived.16           At a later


     16
            Although this testimony was inconsistent with the written
statement Chong initially made to police, which was admitted into evidence,

                                                             (continued . . .)


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point, Chong testified, Wilcox asked her--while holding the

rifle in his hand--whether she had seen the case for that rifle.

Wilcox testified that the rifle was found the day before Souza’s

arrest near where he and Souza were camping.           He stated that

Souza never handled the rifle and that he had never seen Souza

pick it up and look at it.       Wilcox testified that he was the

person who had held the rifle--even though he understood it was

possible that his testimony could get him in trouble.

            Clearly, on this record, there is a reasonable

possibility that the court’s error in not accepting Souza’s

offer to stipulate might have contributed to Souza’s conviction

for prohibited possession of firearm.         The State’s stipulation

conclusively informed the jury that Souza had not been pardoned

for his prior offense and that he was aware that his prior

conviction prohibited him from owning or possessing any

firearms.    The jury may have thus drawn negative inferences

about Souza’s character from this information, including that he

was a person who was not worthy of a pardon and that he

willfully violated the law as he knew his conduct was a criminal


(. . . continued)

Chong testified that she was frightened when she made the earlier statement
because she had never before been in any kind of legal trouble and that the
police pressured her into blaming Souza by threatening her with a firearm
possession charge.




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offense.17    Such negative inferences would clearly have been

prejudicial to Souza in the jury’s evaluation of the evidence in

this case.

             There is also a reasonable possibility that

impermissible speculation may have contributed to Souza’s

conviction for the place to keep firearm offense.            With respect

to both charged offenses in this case, the only contested issue

was whether it was Souza who was in possession of the firearm.

Thus, the same negative inferences about Souza’s character that

applied to the offense of prohibited possession of firearm,

including that Souza was a person who did not deserve to be

pardoned and that he deliberately failed to respect the law as

he knew his conduct was unlawful, may have equally impacted the

jury’s evaluation of Souza with regard to the place to keep

firearm charge.     As Souza maintains on certiorari, “it cannot be




     17
            Souza correctly argued to the circuit court that paragraph 4 of
the State’s stipulation--“As a result of this conviction, the Defendant,
Tracy Souza, is prohibited from owning or possessing firearms or ammunition”-
-is a statement of law. This statement of law was improperly included in a
factual stipulation, outside the allowable scope of Murray, and its
presentment as a statement of fact potentially confused the jury as to the
nature of its fact-finding role. Additionally, by specifying that
“Defendant, Tracy Souza” was prohibited from engaging in the conduct with
which he was charged, the stipulation likely increased the perceived gravity
of the charged conduct, which was also prejudicial to Souza.




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said that the trial court’s error did not infect the jury’s

verdict as to both of the charged offenses in this case.”18

           The circuit court’s instruction that accompanied the

stipulation was not sufficient to cure this potential prejudice.

The instruction stated only that the jury was prohibited from

considering the stipulation and “this evidence” for any purpose

besides establishing the prior conviction element.            It made no

reference to the underlying facts proven by the factual

stipulation, and it did not specifically address the ways in

which the stipulation was flawed, which included that Souza had

not been pardoned and that he was aware that his prior

conviction prohibited him from owning or possessing a firearm.

A jury instruction must be specific to the harm resulting from

the error to function as a curative, and a general, boilerplate

instruction will not serve to eliminate the prejudice.             See

State v. Basham, 132 Hawaii 97, 111, 319 P.3d 1105, 1119 (2014)

(“Additionally, while the court properly instructed the jury on

accomplice liability, that instruction did not cure the

prosecutor’s misstatements of the law, where no specific

curative instruction relating to the misstatements was given.”);


     18
            The State did not file a response to Souza’s application for a
writ of certiorari, nor did it make an argument in its answering brief to the
ICA that distinguished between the two charged offenses as to prejudice.




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State v. Espiritu, 117 Hawaii 127, 143, 176 P.3d 885, 901 (2008)

(“While the court here did properly instruct the jury . . .,

that instruction could not cure Respondent’s misstatements of

the law, where no specific curative instruction relating to the

misstatements was given.”).

          In addition, when the misstatement of the law comes

from the court as here, “the court, at least tacitly, place[s]

its imprimatur upon the” improper statement.          State v. Schnabel,

127 Hawaii 432, 453, 279 P.3d 1237, 1258 (2012) (brackets

omitted) (quoting State v. Pacheco, 96 Hawaii 83, 96, 26 P.3d

572, 585 (2001)).    A jury is presumed to follow a court’s

instructions precisely because a jury is likely to perceive a

court’s statements of the law as the accurate law to apply.

When the court does not unequivocally correct its own

misstatement, a contrary instruction simply introduces confusion

as to the law governing the jury’s determination without

rectifying the error.

          Lastly, although there is normally a presumption that

the jury follows all of the trial court’s instructions, see

State v. Klinge, 92 Hawaii 577, 592, 994 P.2d 509, 524 (2000),

that presumption is refuted here.        Prior to instructing the jury

regarding the stipulation, the court stated, “There are five

material elements of the offense of Ownership or Possession



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Prohibited of any Firearm by a Person Convicted of Certain

Crimes.”   The court instructed the jury that two of those

elements were that 1) prior to possessing a firearm, Souza was

convicted of a felony offense, and 2) when he possessed the

firearm, Souza “believed, knew, or recklessly disregarded the

substantial and unjustifiable risk that he had been convicted of

a felony offense.”      The stipulation in this case included facts

satisfying both of these requirements.19         However, the court’s

instruction regarding the stipulation, which was given both at

the close of the State’s case-in-chief and immediately prior to

closing arguments, stated as follows:

           One of the elements of the alleged offense in Count II of
           Ownership or Possession of Any Firearm or Ammunition by a
           Person Convicted of Certain Crimes requires the Prosecution
           to prove beyond a reasonable doubt that Defendant Tracy
           Souza had been previously convicted of a felony. This
           element is referred to as the “prior conviction element” of
           the offense. The Defense and the Prosecution have
           stipulated to this element, which means that both sides
           agree that Defendant has a prior felony conviction. Based
           on this stipulation, you must accept as proven beyond a
           reasonable doubt the “prior conviction element.” You must
           not consider the stipulation for any other purpose. You
           must not speculate as to the nature of the prior
           conviction. Do not consider this evidence for any other
           purpose.

(Emphases added.)     The instruction did not reference Souza’s

state of mind with respect to his prior conviction, which the


      19
            As stated, the stipulation provided inter alia that, “As of July
11, 2012, the defendant, Tracy Souza, had been convicted of a felony offense
in the state of Hawaii” and, “As of July 11, 2012, the defendant, Tracy
Souza, knew that he had been convicted of a felony offense in the state of
Hawaii.”




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jury had been instructed was a separate element the State was

required to prove in order to obtain a conviction.           And, because

Souza’s state of mind as to his conviction was included in the

factual stipulation, the State did not present any other

evidence from which the jury could have inferred that Souza’s

state of mind was proven beyond a reasonable doubt.

          In other words, there was no evidence adduced at trial

regarding Souza’s state of mind as to his prior conviction other

than the stipulation.     But to find Souza guilty of prohibited

possession of firearm, the jury was required to find that Souza

believed, knew, or recklessly disregarded the substantial and

unjustifiable risk that he had a prior felony conviction, and

the court had instructed the jury that this was a different

element than the prior conviction element.         The factual

stipulation contained this requisite fact, and it was the only

evidence from which a jury could have possibly found that the

state of mind for the prior conviction element was satisfied.

The court’s instruction, however, informed the jury that the

stipulation could not be used for this purpose because it could

be used only for the prior conviction element, which the court

had instructed the jury was separate from the state of mind

element as to his prior conviction.        Thus, the jury necessarily

disregarded the court’s instruction and considered the

underlying facts in the stipulation substantively because the


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jurors would not have been able to convict Souza had they

followed the court’s instruction as delivered.20           Accordingly,

the verdict as to the prohibited possession of firearm charge

rebuts the presumption that the jury followed the circuit

court’s limiting instructions regarding the stipulation in this

case.

           The dissent agrees that the circuit court erred by

refusing to accept Souza’s stipulation and requiring Souza to

accept or reject the State’s proposed stipulation without

modification.     Dissent at 4.     However, the dissent argues that

there is no reasonable possibility that the court’s errors

contributed to Souza’s convictions.          Dissent at 4.

           The dissent contends that the case turned on the

jury’s evaluation of the credibility of Crail, Chong, and

Wilcox’s respective testimonies.          Dissent at 15.     Although

acknowledging that the jury could have drawn impermissible

inferences regarding Souza’s character from the facts in the

State’s unmodified stipulation, the dissent concludes that

Souza’s character was irrelevant to Crail, Chong, and Wilcox’s

credibility and thus unlikely to have affected the jury’s

determination.     Dissent at 15.

     20
            Given our disposition of this case, we do not address whether
this logical inconsistency would amount to reversible error in its own right.




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          However, our holding in Murray sought to preclude the

unnecessary introduction of evidence from which a jury might

make negative inferences about a defendant’s character precisely

because such evidence is not relevant to any matter of

consequence and invariably prejudicial to a defendant.            See

State v. Murray, 116 Hawaii 3, 21, 169 P.3d 955, 973 (2007)

(“Eliminating the name and nature of the previous convictions

from the jury’s realm will prevent unfair prejudice to

defendants . . . .”); Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d

387, 392 (1986) (“Unfair prejudice ‘means an undue tendency to

suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.’” (quoting Advisory Committee’s

Note to Federal Rules of Evidence Rule 403)).          Similarly,

evidence concerning other crimes, wrongs, or acts is generally

inadmissible under Hawaii Rules of Evidence (HRE) Rule 404(b)

because it is largely irrelevant, and “every variety of ‘unfair

prejudice’” implicated under HRE Rule 403 “is present when an

accused’s prior crimes are sought to be used against her.”

Addison M. Bowman, Hawaii Rules of Evidence Manual § 404-3

(2016) (citing State v. Kassebeer, 118 Hawaii 493, 507, 193 P.3d

409, 423 (2008); State v. Arceo, 84 Hawaii 1, 23-24, 928 P.2d

843, 865-66 (1996)).




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          As the dissent acknowledges, the jury could have drawn

negative inferences about Souza’s character from the facts

included in the State’s stipulation.        Dissent at 4, 15.      The

risk that the jury would decide the case on the basis of these

unfavorable inferences about Souza’s character rather than upon

the witnesses’ credibility, or that the jury would make

unreasonable inferences as to the credibility of the witnesses

based on Souza’s perceived bad character, is exactly why the

evidence was unfairly prejudicial and should not have been

admitted at trial.

          The dissent responds that, unlike the name and nature

of a prior conviction, the wrongfully admitted evidence in this

case was not “of such an overwhelmingly prejudicial nature that”

it could “affect a jury’s determination of a case, irrespective

of the nature of the issues and arguments upon which the parties

relied at trial.”    Dissent at 12-16.

          As an initial matter, the dissent understates the

gravity of the prejudicial information included in the

stipulation, which informed the jury, inter alia, that

                1) As of July 11, 2012, the defendant, Tracy Souza,
          had been convicted of a felony offense in the state of
          Hawaii.
                2) As of July 11, 2012, the defendant, Tracy Souza,
          knew that he had been convicted of a felony offense in the
          state of Hawaii.
                3) The defendant, Tracy Souza, has not been pardoned
          for such felony offense.




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(Emphasis added.)     Members of a jury unfamiliar with the

executive pardon power may have inferred that a pardon is

generally given in due course following a convicted defendant’s

successful rehabilitation, and there was a reason that Souza had

not received one.     Certainly, jurors instructed by the court

that it was “true and accurate” that Souza had not been pardoned

for his felony offense would consider this fact important for

their consideration.     Jurors thus may have concluded that Souza

had not been pardoned for his felony conviction because he did

not merit receiving a pardon based on his character or his

subsequent conduct.     In this respect, the stipulation suggested

an ongoing, present failure by Souza to redeem himself, not

merely past misconduct for which Souza had already paid his debt

to society.    And, unlike a prior conviction introduced through

the normal evidentiary process, Souza was unable to offer any

evidence demonstrating context or mitigating circumstances

explaining the prejudicial facts (including the rarity with

which pardons are granted) because the facts were established by

stipulation.    See 83 C.J.S. Stipulations § 5 (2017) (“A

stipulation bars a party who enters into it from adducing

evidence to dispute the stipulated facts or the circumstances

surrounding them.”).

          Further, the negative effect of each portion of the

stipulation must be considered cumulatively.          As stated, the


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stipulation also informed the jury that Souza was prohibited

from possessing a firearm and knew he was prohibited from

possessing a firearm, increasing the perceived wrongfulness of

the conduct underlying the firearm-related charges against

Souza.   The harm in this case of the improperly admitted

information is particularly manifest when the various aspects

are compounded.    See State v. Pemberton, 71 Haw. 466, 473, 796

P.2d 80, 83–84 (1990) (“We find that a number of these acts,

while not individually sufficient to warrant reversal,

cumulatively prejudiced Defendant to the extent of denying him a

fair trial.”).

          Specific negative inferences aside, the dissent’s

reasoning misapprehends the basis for our decision in Murray.

To be sure, this court determined that evidence of the name and

nature of a defendant’s previous conviction is overwhelmingly

prejudicial, and we accordingly prescribed the stipulation

procedure that a defendant must be allowed to utilize to

preclude its introduction.      Murray, 116 Hawaii at 20-21, 169

P.3d at 972-73.    We did not suggest, however, that other

negative character evidence must rise to this level for its

admittance to constitute harmful error.         Indeed, the dissent

appears to formulate a new alternative standard for evaluating

the harmfulness of negative character evidence when the




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defendant’s character is not closely related to arguments or

issues in the case, requiring a showing of overwhelming

prejudice in such circumstances.21

           But irrelevant negative character evidence undermines

the presumption of innocence and places a thumb on the scales of

justice regardless of what issues the case properly turns upon.

Admitting such evidence implies that the defendant “is not

entitled to the presumption of innocence throughout trial and

deliberations.”     State v. Mara, 98 Hawaii 1, 16, 41 P.3d 157,

172 (2002) (quoting United States v. Doyle, 130 F.3d 523, 538

(2d Cir. 1997)); accord United States v. Myers, 550 F.2d 1036,

1044 (5th Cir. 1977) (holding bad character evidence is not

admissible because “[a] concomitant of the presumption of

innocence is that a defendant must be tried for what he did, not

for who he is”).     Further, the admission of prejudicial

character evidence that is irrelevant may color a juror’s view

of other evidence that is relevant, bolstering the government’s

case and diminishing the defendant’s such that the government’s

burden of proof is effectively reduced.          A juror “may take it

upon herself to make a premature evaluation of the case” and


     21
            Because the use of character evidence is restricted under our
evidentiary rules, a defendant’s character is actually related to the jury’s
determination in only limited circumstances.




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conclude that she “need not hold the Government to its strict

burden [because] she is otherwise convinced of the accused’s

guilt.”   Mara, 98 Hawaii at 16, 41 P.3d at 172.

           In sum, the admission of irrelevant character evidence

invites jurors to make a premature evaluation of the case,

erodes the presumption of innocence, and raises the potential

that such evidence will be used in deciding the case based on

irrelevant considerations of who the defendant is and not what

the defendant has done.       See id.     In light of the evidentiary

record, it cannot be concluded beyond a reasonable doubt that

such impermissible speculation by the jury did not contribute to

Souza’s conviction.22     Thus, we vacate the circuit court’s

judgment as to both convictions and remand the case for further

proceedings.

                              IV.   CONCLUSION

           The circuit court in this case did not accept Souza’s

offer to admit to his prior conviction.          The court instead

required Souza to either accept or reject the State’s proposed

stipulation without modification, which included facts that were


     22
             We stated in Murray that the “failure to allow the defendant to
use the stipulation procedure would not be considered harmless error.” 116
Hawaii at 20 n.14, 169 P.3d at 972 n.14. Because the harm from the court’s
error was manifest in this case, we do not address whether a court’s failure
to accept a defendant’s Murray stipulation to a prior conviction is
structural error that is per se harmful.




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not elements of prohibited possession of firearm and that were

prejudicial to Souza.     If Souza accepted the proffered

stipulation, it would have the opposite effect that a Murray

stipulation is intended to accomplish, making it more rather

than less likely that the jury would decide the case on an

improper basis.    But if Souza rejected the State’s proposed

stipulation, the court indicated that the State would then be

allowed to call witnesses to prove Souza’s prior conviction

which would have the effect of introducing irrelevant facts

through potentially prejudicial testimony.         Neither option

conformed to Murray.     The circuit court’s error was not harmless

beyond a reasonable doubt.

          Accordingly, we vacate the ICA’s August 4, 2017

Judgment on Appeal and the circuit court’s June 18, 2013

Judgment of Conviction and Probation Sentence and remand the

case for further proceedings consistent with this opinion.

William H. Jameson, Jr.                  /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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