High court justices vacate conviction and sentences

On Dec. 31, 2015, the Supreme Court issued Commonwealth v. Hocog, 2015 MP 19, vacating Donald A. Hocog’s conviction for incest and sentences for sexual abuse of a minor in the first degree and assault and battery. On appeal, Hocog argued the trial court erred by: (1) refusing to read the full names of minor witnesses during jury selection, (2) failing to read substantive jury instructions at the end of trial, (3) convicting him of incest in violation of double jeopardy, (4) refusing to order a presentence investigation report, and (5) failing to exercise its sentencing discretion. Furthermore, he argued that if the case were to be remanded for resentencing, it should be reassigned to a different judge.

The Commonwealth charged Hocog with sexual abuse of a minor in the first degree, child abuse, incest, and assault and battery for engaging in sexual penetration with his biological daughter between 2005 and 2006. During jury selection, the Commonwealth read aloud the full names of witnesses to prospective jurors but disclosed only the initials of the victim and two other minor witnesses. After Hocog objected, the trial court informed him that he could raise the issue during supplemental voir dire, but Hocog failed to raise the issue.

At the beginning of trial, the trial court read the jury instructions but did not reiterate the substantive jury instructions at the end of trial. Ultimately, the jury found Hocog guilty of sexual abuse of a minor in the first degree, and the trial court found Hocog guilty of incest and assault and battery. After reading the verdict, the court denied Hocog’s request for a presentence investigation report, noting the case was straightforward. Hocog received the maximum sentence in each count: 30 years for sexual abuse of a minor in the first degree, five years for incest, and one year for assault and battery—all running concurrently without the possibility of parole.

The high court concluded the trial court did not err in failing to read the full names of minor witnesses because Hocog could have disclosed the names during supplemental voir dire. Moreover, while the trial court’s failure to read substantive jury instructions at the end of trial was an error, the error was not a plain error requiring reversal because Hocog did not demonstrate that the error affected the outcome of the trial.

However, the high court vacated Hocog’s conviction for incest because it violated double jeopardy. The high court also vacated Hocog’s sentences for sexual abuse of a minor in the first degree and assault and battery because the trial court erred by failing to order a presentence investigation report. The high court declined to decide whether the trial court failed to meaningfully exercise its sentencing discretion because resolution of the issue was premature. Finally, the high court remanded for resentencing to the same sentencing judge because Hocog did not establish reassignment was necessary to maintain the appearance of justice.

The Supreme Court’s full opinion is available at http://www.cnmilaw.org/supreme15.html. (NMI Judiciary)