The Hidden Element in OUI

State v. Wheeler (HSC November 17, 2009)

Background. Wheeler was charged with operating a vehicle under the influence of an intoxicant (HRS § 291E-61(a)(1)). The State's charges went like this:

"on or about May 31st, 2001, in the City and County of Honolulu, State of Hawaii, [Wheeler] did operate or assume actual physical control of a motor vehicle while under the influence of alcohol in amounts sufficient to impair [his] normal mental faculties and [his] ability to care for [him]self and guard against casualty[.]"

Wheeler indicated that he did not understand the charge because the term "operate" was a term of art. The State refused to clarify the charge. Wheeler moved to dismiss on the grounds that the charge failed to state an offense. The motion was denied. Wheeler lost at trial. The ICA vacated and remanded. The State appealed.

The Elements of the DUI Statute Include Where the Conduct took Place. The elements of an offense include conduct, attendant circumstances, and the results of that conduct. HRS § 701-205. "Conduct" means "an act or omission[.]" HRS § 701-118(4). An "act" is "bodily movement whether voluntary or involuntary." HRS § 701-118(2). "Attendant circumstances" are circumstances "that exist independently of the [actor's conduct]." State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005).

The DUI statute requires a person to "operate[]" or "assume[] actual physical control of a vehicle." HRS §291E-61(a). To "operate" means "to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway." HRS § 291E-1. According to the HSC, the act driving or assuming actual physical control of a vehicle is the conduct element of the DUI statute. The HSC then held that this conduct element comes with the attendant circumstance that the conduct occur "upon a public way, street, road, or highway." Thus, the location of the conduct--upon a public way, street, road, or highway--is an essential element of the DUI statute.

A "Potential Ambiguity" Rejected. The HSC acknowledged that the words "assumes physical control of a vehicle" appeared both in the definition of "operate" and in HRS § 291E-61(a) itself. It recognized that the statute could be interpreted so that a person commits the offense if he or she either "operates" a vehicle (thereby driving or assuming physical control of a vehicle on a public way, etc.) or "assumes physical control of a vehicle" no matter where you are. The HSC, nonetheless, rejected this interpretation because such an interpretation would render the words "assumes actual physical control" within the definition of "operate" a nullity, "which is an outcome we must avoid." See Potter v. Hawai'i Newspaper Agency, 89 Hawai'i 411, 422, 974 P.2d 51, 62-63 (1999). Moreover, the requirement that the attendant circumstance of the conduct--be it driving or assuming physical control--be in public is consistent with the legislative history and the rule of lenity. State v. Shimabukuro, 100 Hawai'i 324, 327, 60 P.3d 274, 277 (2002).

Another "Potential Ambiguity"? The rejection of the "potential ambiguity" in the DUI statute is not unlike the prohibitions-involving-minors offense. "No minor shall consume or purchase liquor and no minor shall consume or have liquor in the minor's possession or custody in any public place" etc. HRS § 281-101.5(b). The conduct element appears to be consuming or purchasing of liquor as well as the consuming or possessing of liquor. It also appears to have the attendant circumstance element of the act occurring "in any public place" for at least the consumption and possession of liquor. Applying this case to this statute, it would seem that there is another "potential ambiguity" between the two words "consume." It would imply that consumption has to take place in public in order to prevent one of the "consumes" from becoming a nullity. The rule of lenity would certainly think so.

Tracking the Statutory Language is not Enough. "It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged." State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996). Generally when "the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977). But "where the definition of an offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species . . . [and] descend into particulars." State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995).

The HSC made it clear that the charge must allege the elements of the offense, not necessarily the language of the statute. Here, the State failed to allege that Wheeler operated or assumed physical control of a vehicle on a public way, street, road, or highway. The HSC explained that it was not enough to simply state that Wheeler "operated" because the statutory term "operate" contains a very specific location and is a term of art. This, according to the HSC, went beyond the common understanding of the word "operate."

No Notice of the Element Either. The HSC rejected the State's argument that Wheeler had sufficient notice of the attendant circumstance element. According to the HSC, the charge did not indicate where the alleged conduct took place other than within the City and County of Honolulu. The HSC also rejected the State's claim that Wheeler had notice because his license had been revoked by the Administrative Driver's License Revocation Office (ADLRO), a process which requires proof of operating a vehicle while under the influence.

Appellate Courts can look at all Information Available up until time of the Objection. Generally, in determining whether a defendant has been adequately informed of the charges, the appellate court may consider other information in addition to the charge that may have been provided to the defendant up until the time defendant objected to the sufficiency of the charges. See State v. Sprattling, 99 Hawai'i 312, 318-19, 55 P.3d 276, 282-83 (2002); State v. Treat, 67 Haw. 119, 680 P.2d 150 (1984). In this case, the HSC held that Wheeler immediately objected to the sufficiency of the State's charge and that meant that it could "only consider information supplied to Wheeler priuor to his timely, pre-trial objection[.]" Under that analysis, the record does not establish that Wheeler was fully informed of the nature and cause of the accusation against him--regardless of the ADLRO proceedings.

Conferences with Stanby Counsel, Written Transcripts, and Other Rights

State v. Mundon (HSC November 13, 2009)

Background. Mundon was charged with several counts of sex assault in various degrees, kidnapping, terroristic threatening, and assault. Mundon requested to represent himself at trial and requested appointed standby counsel. The circuit court granted those requests. At trial, the complainant that she encountered Mundon one night at Kapa'a Beach. She testified that she was looking for a cheap hotel room. Mundon allowed her to sleep in the back of his truck. As she slept, Mundon began to putting his hands under her underwear and feeling her outer labia. She also testified that he started to kiss and touch her breasts approximately ten to fifteen times. When she tried to get away, Mundon produced a knife and threatened to kill her if she tried to get away. A struggle ensued on the beach and eventually she got away. Testimony from police officers corroborated the complainant's version. Mundon testified and his version of events is significantly different.

The jury found Mundon guilty of one count of attempted sex assault in the first; one count of terroristic threatening in the first; one count of kidnapping; one count of assault in the third degree; and the lesser-included offense of attempted assault in the second degree. Mundon was acquitted of all remaining charges. The circuit court sentenced Mundon for the offenses, some of which were consecutive.

Unanimity Instructions and when you Need them . "[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, [sections] 5 and 14 of the Hawai'i Constitution." State v. Arceo, 84 Hawai'i 1, 30, 928 P.2d 843, 872 (1996). When separate and distinct culpable acts are within a single count of sexual assault, "the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the 'conduct' element . . . or (2) the trial court gives the jury a specific unanimity instruction[.]" Id. at 32-33, 928 P.2d at 874-75. The requirement of unanimity instructions applies to other offenses too. State v. Valentine, 93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000).

Absent an election by the prosecution a unanimity instruction is required when "(1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that only one offense was committed." State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008). But the unanimity instruction is not required when the offense does not preclude it from being proved as a continuous offense and the prosecution alleges, adduces evidence of, and argues that the defendant's action "constituted a continuous course of conduct." State v. Apao, 95 Hawai'i 440, 447, 24 P.3d 32, 39 (2001).

. . . Not Required for Kidnapping. The HSC first rejected Mundon's argument that a unanimity instruction was required for the kidnapping offense. Kidnapping arises when "the person intentionally or knowingly restrains another person with the intent to . . . [i]nflict bodily injury upon that person or subject that person to a sexual offense[.]" HRS § 707-720(1)(d). According to the HSC, the kidnapping statute prevents the prosecution from proving that the restraint was "accomplished by a series of acts constituting a continuing course of conduct" and that the prosecution alleged, adduced evidence of, and argued that the defendant's actions were a continuous course of conduct.

. . . But Required for the Attempted Sex Assault in the First. As for the attempted sexual assault in the first degree, the HSC held that the unanimity instruction should have been given. Unlike the kidnapping offense, sexual assault in the first degree cannot be proven with continuous conduct. State v. Arceo, 84 Hawai'i at 21-22, 928 P.2d at 863-64. So even if the prosecution argued that it was a continuing course of conduct, the multiple attempts to penetrate the complainant cannot be a continuing course of conduct, but are separate and distinct acts. It was, according to the HSC, plain error for the trial court to not instruct the jury that they must unanimous in determining the particular conduct for the attempted sexual assault.

. . . And also Required for the Terroristic Threatening. The State argued to the jury that there were "two huge instances" where Mundon threatened the complainant. Mundon was charged with two counts of terroristic threatening in the first degree, but the jury found him guilty of only one. The HSC relied on a line of federal cases. "When it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice" and "the jurors must agree to a particular set of facts." United States v. Echeverry, 719 F.2d 974, 974-75 (9th Cir. 1983). The HSC pointed out that Mundon was charged and tried for two counts of terroristic threatening, but the jury only found him guilty of one count. According to the HSC, there was a genuine possibility that the different jurors agreed to a different set of facts.

A Particular kind of Remedy for the TT1. Double jeopardy protects people from a second prosecution for the same offense after acquittal and a second prosecution for the same offense after a conviction. State v. Higa, 79 Hawai'i 1, 5, 897 P.2d 928, 932 (1995). The HSC concluded that because there was no way to know which specific act served as the basis for the single TT1 conviction, it is possible that a vacation and remand of this offense would be a retrial for an offense of which Mundon had been acquitted. As a result, the HSC reversed the terroristic threatening in the first degree conviction.

Defendant Needn't show Particularized Reason in Exercising the Right to Transcripts of Prior Proceedings for Trial and Appeal. One of Mundon's pretrial motions was a request for written transcripts of prior proceedings. The circuit court denied the request. The ICA concluded that the transcripts should have been provided, but that error was harmless beyond a reasonable doubt.

A criminal defendant has a right to transcripts of prior proceedings. Britt v. North Carolina, 404 U.S. 226, 227 (1971). In Britt, the Supreme Court of the United States examined whether an indigent defendant was entitled to written transcripts even though there was no showing of a specific need for them. Id. Two factors are relevant in resolving this issue: (1) the value of the transcript to the defendant in connection with the appeal or trial" and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

The HSC pointed out that the Britt court held that there is never a need for the defendant to show a specific need for transcripts. They have an "innate value." Id. at 228. The HSC then examined "the availability of alternative devices that would fulfill the same functions as a transcript." Here, Mundon was provided with electronic versions of the transcript, but it was clear from the record that he did not have the means to access those electronic versions until the first day of trial. That meant that Mundon could only review the transcripts during breaks in the trial itself. This, according to the HSC, was not an adequate alternative device. It was not harmless error.

No Access to Trial Materials . . . The State filed various pretrial motions in limine. Four days prior to trial at the hearing on these motions, Mundon informed the circuit court that it could not adequately respond to the motions because his trial materials were left behind on Oahu (the trial was held in Kauai). On appeal, Mundon argued that due process required him access to his trial materials.

Due process "is flexible and calls for such procedural protections as the particular situation demands. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner." State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002).

The HSC noted that in California, the pro se criminal defendant has a constitutional right to adequate time to prepare his or her defense. People v. Maddox, 433 P.2d 163, 168 (Cal. 1967). Moreover, the denial of "a proper request for a continuance to prepare a defense" is a denial of due process. People v. Cruz, 83 Cal. App. 3d 308, 325 (Cal. App. 1978). In this case, Mundon was unexpectedly transported from Halawa on Oahu to the jail on Kauai without his trial materials. The transfer was completely out of his control. The trial court could have continued the trial in order for Mundon to consult his materials. The HSC held that the denial of access to his trial materials constituted a violation of his due process rights.

Getting Around the Abuse-of-Discretion Standard? In a footnote, the HSC pointed out that the ICA erred in applying the standard of review. The ICA applied the abuse-of-discretion standard of review and concluded that there was no such abuse. The abuse of discretion standard defers to the lower court or tribunal. The HSC, however, noted that Mundon asserted a violation of his constitutional rights--which is reviewed de novo. Normally, the denial of a continuance is reviewed for an abuse of a discretion. However, since the denial of a continuance--as argued by Mundon--was characterized as a violation of his due process rights, the HSC reviewed the issue de novo and did not defer to the lower court.

A Right to Standby Counsel. Mundon was cross-examined by the State. During a routine break in the trial, Mundon wanted to speak to his standby counsel. Under the federal constitution, a court's order prohibiting a criminal defendant from conferring with his or her standby counsel during an overnight break violates the Sixth Amendment. Geders v. United States, 425 U.S. 80, 91 (1976). However, in Perry v. Leeke, 488 U.S. 272 (1989), the defendant argued that the trial court's order barring him from conferring with standby counsel during a 15-minute break violated the Sixth Amendment. The SCOTUS distinguished Geders and held that the federal constitution "does not compel every trial judge to allow the defendant to consult with his [or her] lawyer while his [or her] testimony is in progress merely because the judge decides to call a recess during the trial for a few minutes." Perry, 488 U.S. at 284-85. The Perry court emphasized the need for preserving the truth-seeking function at trial and explained that the defendant does not have a right to "regroup and regain a poise and sense of strategy" not available to other witnesses. Id. at 282-83.

Justice Thurgood Marshall dissented in Perry. He was joined by Justices Brennan and Blackmun. The dissent saw no distinction and noted that conferring with counsel "enhances the discovery of truth because it better enables the defendant to put the [prosecution] to its proof." Id. at 291 (emphasis in original). Justice Marshall wrote that "the Sixth Amendment forbids any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial." Id. at 285-86 (emphasis in original).

The HSC held that under the federal constitution, Mundon is in the same situation as Perry and, thus, the Sixth Amendment was not violated by the circuit court's order prohibiting him from conferring with standby counsel.

The Hawai'i Constitution, However, is a Different Matter. The Hawai'i Supreme Court is the "ultimate judicial tribunal with the final, unreviewable authority to interpret and enforce the Hawai'i Constitution" and is "free to give broader protection under the Hawai'i Constitution than that given by the federal constitution." State v. Arceo, 84 Hawai'i at 28, 928 P.2d at 870. HSC adopted Justice Marshall's formulation that "any order barring communication between a defendant and his [or her] attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial," violates the defendant's state constitutional right to counsel. Thus, the HSC held that the circuit court's order prohibiting conference with counsel during the routine break violated the Hawai'i Constitution. Nonetheless, the HSC held that the error was not harmless beyond a reasonable doubt because there was no reasonable possibility that the error contributed to the conviction. State v. Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1230 (1996).

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the result, but disagreed on the majority's analysis on the circuit court's order prohibiting conference with standby counsel. In sum, Justice Acoba believed that the circuit court's order violated Mundon's right to counsel, the attorney-client privilege, and Mundon's right against self-incrimination. Justice Duffy joined.

Other Issues. The HSC held that Mundon's right to speedy trial was not violated when more time was permitted to accommodate the withdrawal of one standby counsel and the appointment of another. The HSC also rejected Mundon's contention that the consecutive sentencing violated his right to a jury trial ala Apprendi v. New Jersey, 530 U.S. 466 (2000).

Abuse of Incompetent Persons Statute Not Unconstitutional

State v. Billam-Walker (ICA August 11, 2009)

Background. Walker was charged with endangering the welfare of an incompetent person. HRS § 709-905. This was initially a summary disposition order. The ICA granted the state's motion for publication. The ICA presented no background facts.

No Abuse of Discretion in Denying Continuance. The ICA rejected Walker's argument that the family court erred in denying his motion to continue trial. "An attorney cannot reasonably expect a court to alter its calendar, and disrupt a scheduled trial to which witnesses have been subpoenaed and to which the adverse party is ready, simply by the filing by counsel of a last minute motion for continuance." State v. Lee, 9 Haw. App. 600, 603-04, 856 P.2d 1279, 1281-82 (1993). Here, the ICA noted that the motion for continuance was requested one week prior to trial. According to the ICA, the defense had adequate time and resources to prepare for trial. The ICA also noted that there was no abuse of discretion because even if certain defense witnesses were not available, those particular witnesses had no "direct bearing on the issue of guilt." See State v. Lee, 9 Haw. App. at 605, 856 P.2d at 1282 (denied continuance not error because testimonies went to complaintant's credibility).

Sufficient Evidence to Support Conviction. In a prosecution for endangering the welfare of an incompetent person, the State must prove beyond a reasonable doubt that the defendant knowingly acted in a way "likely to be injurious to the physical or mental welfare of a person who is unable to care for himself [or herself] because of physical or mental disease, disorder, or defect." HRS § 709-905. The ICA noted that at trial, the State presented expert testimony that the complaintant was unable to care for himself because of permanent mental disabilities and severely limited communication skills. There was further testimony that Walker was aware of the complaintant's disabilities. There was also evidence that Walker grabbed the complaintant and yelled at him. According to the ICA this, viewed in the light most favorable to the State, was sufficient evidence.

Statute not Unconstitutionally Vague. HRS § 709-905 requires conduct that is "likely to be injurious" to an incompetent person. The ICA rejected Walker's argument that this language from HRS § 709-905 is unconstitutionally vague and overbroad. The ICA first held that the statute is not vague because the statute "is reasonable clear and provides sufficient notice to a person of ordinary intelligence that knowingly engaging in conduct that would probably cause harm to an incompetent person's welfare is prohibited." The ICA then held that the statute is not overbroad. It patently rejected Walker's contention that the statute prohibits caregivers from scolding, lecturing, or "verbally redirecting an incompetent person[.]" According to the ICA, HRS § 709-905 requires the defendant to knowingly engage in conduct that would likely cause harm to the incompetent's welfare, "which is the antithesis of an intentional act that may injure but is performed in the [incompetent's] best interest." State v. McKee, 392 N.W.2d 493, 495 (Iowa 1986).

The Caregiver Defense? HRS § 709-905 requires that the defendant knowingly engage in conduct which is likely to be injurious. The ICA--in holding that the statute is not unconstitutionally overbroad--held that the mens rea element distinguishes criminal conduct from a caretaker's conduct that is intended to be for the purpose of providing care. But does the plain language of the statute recognize this distinction? The statute criminalizes conduct that the person knows is "likely to be injurious." Does this mean that when the caregiver engages in conduct that is likely to be injurious, but does so for the purpose of treating a patient, it is not within the ambit of the statute? In other words, is it a defense to show that the conduct was performed in the incompetent's best interest? Perhaps.

Nexus for Probation Conditions met here. The sentencing court may impose conditions of probation at its discretion. HRS § 706-624(2). "In order for there to be a rational exercise of discretion some factual basis for imposing such probationary conditions must inhere in the record." State v. Kahawai, 103 Hawai'i 462, 466, 83 P.3d 725, 729 (2004). According to the ICA, Walker was charged and convicted of endangering the welfare of an incompetent person. The family court imposed as a condition of his probation that he attend domestic violence classes. The ICA held that "the family court had the discretion to sentence Walker to whatever 'correctional treatment' the court deemed most effective" and that it was not an abuse of that discretion to order domestic violence classes.

Other Issues. The ICA affirmed the conviction. It found no merit in Walker's claims of the improper admission of evidence, prosecutorial misconduct, and erroneous jury instructions.

Judge Leonard's Concurrence. Judge Leonard concurred in the result and did not file a separate opinion.

Canine Sniff, Questioning about Drugs Exceeded Scope of Traffic Stop.

State v. Estabillio (HSC October 26, 2009)

Background. Officer Pauole was contacted by the vice squad for assistance in a traffic stop. On the Big Island, the vice squad officers do not have marked police cars. Vice Officer Prudencio told Pauole that Estabillio was seen driving around Puna with expired registration stickers. Officer Prudencio also believed that Estabillio had drugs in his car. Officer Pauole found Estabillio driving and pulled behind him. According to Officer Pauole, the sticker appeared to be valid. Officer Pauole radioed to verify the stickers and continued following Estabillio. Estabillio started speeding and Officer Pauole activated his lights and sirens. Officer Pauole blocked Estabillio into a driveway.

Officer Pauole asked for license, registration, and insurance. Then Officer Prudencio showed up. Officer Prudencio did not see that Estabillio had drugs. He started questioning Estabillio about certain traffic offenses then started questioning Estabillio about any involvement in drug dealing. Estabillio refused a request to search his vehicle and wanted to speak with a lawyer. Officer Prudencio got a canine search. The dog alerted to the car, Estabillio was arrested and subjected to a pat-down search. After the arrest, came searches based on warrants. In all, police recovered a total of 17.1 grams of cocaine. Estabillio was charged with promoting a detrimental drug in the first degree (HRS § 712-1242(1)(c)). Estabillio's motion to suppress was denied. The circuit court gave an oral ruling and did not issue findings of fact and conclusions of law. The ICA affirmed the denial.

Failure to Issue Written Findings, Conclusions, and Order not Fatal to Appeal. The HSC--in a footnote--addressed the circuit court's failure to issue findings of fact and conclusions of law. The HSC noted that it could proceed and address the merits of Estabillio's appeal because the circuit court indicated its essential findings on the record and was in compliance with HRPP Rule 12(e), which requires the court to "state its essential findings on the record" when factual issues are involved to determine a motion. Thus, the HSC held that the failure to issue written findings and an order were not fatal to Estabillio's appeal. See State v. Kahoonei, 83 Hawai'i 124, 126, 925 P.2d 294, 296 (1996).

Constitutional Investigative Must be Justified and Limited in Scope. An investigative stop of a vehicle is a "seizure" in violation of Article I, section 7 of the Hawai'i Constitution. Kernan v. Tanaka, 5 Haw. 1, 37, 856 P.2d 1207, 1225 (1993). To justify an investigative stop, there must be "specific and articulable facts which . . . [a person] of reasonable caution would be warranted in believing that criminal activity was afoot." State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1211 (1971). This is the standard from Terry v. Ohio, 392 U.S. 1 (1968). The investigative stop and any search, however, must also be "reasonably related in scope to the circumstances which justified the detention in the first place, and, thus, must be no greater in intensity than absolutely necessary under the circumstances." State v. Kaleohano, 99 Hawai'i 370, 379, 56 P.3d 138, 147 (2002).

The Scope of a Stop. According to the HSC, it was clear that Officer Pauole was justified in stopping Estabillio for speeding and certain information of an expired registration sticker. The HSC, however, held that the subsequent drug investigation exceeded the scope of the initial traffic stop. Questioning by the police can arise to an unconstitutional seizure when "a reasonable person . . . would not have believed that he [or she] was free to ignore the officer's inquiries and walk away." State v. Quino, 74 Haw. 161, 173, 840 P.2d 358, 364 (1992); see also State v. Trainor, 83 Hawai'i 250, 256, 925 P.2d 818, 824 (1996); State v. Kearns, 75 Haw. 558, 567, 867 P.2d 903, 907 (1994); State v. Kachanian, 78 Hawai'i 475, 481, 896 P.2d 931, 937 (App. 1995).

Drug Investigation for a Traffic Stop is Beyond the Scope of the Initial Detention. The HSC stated that it was "undisputed" that after the traffic stop, Officer Prudencio went to the scene to investigate Estabillio about possible drug dealing, not a traffic offense. Officer Prudencio's questioning, according to the HSC, arose to an unconstitutional seizure that was beyond the scope of the initial traffic stop. The HSC noted that nothing was in plain view to alert officers of a drug offense. This, according to the HSC, was "a separate, distinct, and unrelated investigation" that was unconstitutional.

Barros Distinguished. In affirming the denial, the ICA relied on State v. Barros, 98 Hawai'i 337, 48 P.3d 584 (2002). In that case, the HSC held that it was not unconstitutional for a police officer to conduct a warrant check on a person stopped for jaywalking. The HSC distinguished Barros on the grounds that Barros "opined only on the constitutionality of an action (i.e., a warrant check) that did not, in and of itself, amount to a seizure that was separate and distinct from the initial seizure related to the jaywalking offense." The distinction suggests that--in the course of a justified Terry stop--if the officer does something that does not amount to a seizure or a search then there would be no error. Of course, there is a difference between police questioning ala Quino and warrant checks ala Barros.

Independent Reasonable Suspicion Can Save Excessive Search/Seizure. Having held that the drug investigation exceeded the scope of the initial detention, the HSC examined if it could be "supported by independent reasonable suspicion." See State v. Bolosan, 78 Hawai'i 86, 92, 890 P.2d 673, 679 (1995). The HSC held that there was no reasonable suspicion that Estabillio had drugs in his possession at the time of the stop.

Confidential Informant and Nervous Behavior is not Enough. All the evidence showed--according to the HSC--was that Officer Prudencio had information from a confidential source that Estabillio was a "mid-level drug dealer" and that he saw that Estabillio was "very nervous." Information from a "confidential informant" without more is insufficient to establish reasonable suspicion for an investigatory stop. Kachanian, 78 Hawai'i at 480-81, 896 P.2d at 936-37.

And while nervous and evasive behavior may be a factor in determining reasonable suspicion, Illinois v. Wardlow, 528 U.S. 119, 124 (2000), without "other, more[] probative grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists." United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005). The HSC held that the separate drug investigation was not supported by reasonable suspicion and that it was unconstitutional.

Happy Halloween. It must be noted that the night Officer Martin J. McFadden stopped John W. Terry on the streets of Cleveland, Ohio--which changed the interpretation of the Fourth Amendment--was October 31, 1963. Happy Halloween.

Manufacturer has Final say in Foundation for Laser Gun Readings

State v. Assaye (HSC September 30, 2009)

Background. Assaye was charged with excessive speeding (HRS § 291C-105(a)). At his bench trial, Officer Franks testified that with a laser gun he clocked Assaye driving at 90 m.p.h. in a 55 m.p.h. zone. Officer Franks testified that he had been certified to use the laser gun and was trained to use and test the gun. He also said that he conducted four tests on the laser gun to ensure its accuracy. Assaye objected to the foundation of the reading from the laser gun. The trial court overruled the objection. Assaye was found guilty, he appealed, and the ICA affirmed.

So Long Stoa: Manufacturer-Recommended Tests Necessary to Establish Foundation of the Laser Gun Reading. The HSC agreed with Assaye that the State was required to adduce evidence of manufacturer-recommended testing procedures before it could have been admitted at trial. In State v. Stoa, 112 Hawai'i 260, 265, 145 P.3d 803, 808 (App. 2006), the ICA examined the scientific accuracy of a laser gun and held that the laser technology was an accurate and reliable means of measuring speed. In doing so, the ICA also examined the foundational requirements of getting in the laser gun reading, which included the same tests used by Officer Franks.

But according to the HSC, Stoa is "obviously inconsistent" with State v. Manewa, 115 Hawai'i 343, 167 P.2d 336 (2007). In that case, an expert qualified to testify about drug analysis and identification could not testify that the electronic scale he routinely used was accurately calibrated. The Manewa court held that there must be "an established manufacturer's procedure that could be conducted by the user to ensure that the [scales] were in working order according to the manufacturer's specifications." Id. at 354, 167 P.3d at 347. The HSC overruled the foundation analysis in Stoa and held that laser guns, like the scale in Manewa, called for manufacturer-recommended testing procedures. Here, there was no evidence that Officer Frank's laser gun was tested according to manufacturer-recommended procedures.

Manufacturer-Recommended Training also Required. The HSC also extended Manewa to officer training and held that the nature and extent of an officer's training in the operation of the laser gun must also meet the requirements indicated by the manufacturer. See State v. Ito, 90 Hawai'i 225, 244, 978 P.2d 191, 210 (App. 1999). Officer Franks testified that he was certified to use the laser gun and that he was instructed in the testing and operating of the machine through a four-hour class taught by another officer. But this, according to the HSC, was insufficient foundation because it did not show that Officer Franks met the manufacturer's requirements for the operation and use of the laser gun.

Speed was the case. Because the precise speed from the laser gun was a necessary element to the offense of excessive speeding there was no proof beyond a reasonable doubt that Assaye committed the offense. The HSC reversed the conviction.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority that the State needed proof that the laser gun was tested by manufacturer-recommended procedures and that the officer training was also manufacturer-recommended. He wrote separately to note that Manewa "imposes the additional requirement" for the State to show that the device "had been properly calibrated by the manufacturer's service representatives[.]" Manewa, 115 Hawai'i at 354, 167 P.3d at 347. There was insufficient evidence, according to Justice Acoba, establishing that the laser gun in this case had been properly calibrated or turned in for maintenance to a service representative. This was yet another reason--at least for Justice Acoba--to reverse. Justice Acoba wrote for the HSC in Manewa.

A Hefty Burden? So when it comes to devices that are used to record things--be it weight or speed--the foundation requires two things: (1) the device was tested according to manufacturer-recommended procedures; and (2) the user of the device underwent manufacturer-recommended training. Without this foundation, the reading cannot come in. It raises interesting questions about devices and who makes them. There must certainly be a number of devices out there that have no such recommendations or training to operate. What then? Does that mean it that the reading from the device cannot come in at all? Or is that an instance where this foundation is not required? If it's the latter, then it would seem that the police want devices that have manufacturer recommendations. That matter, must be settled on another day.

So What Else is out There? We have seen two cases where this foundation is particularly important: here, in cases of excessive speeding where the precise speed is an essential element and in Manewa where the weight of the drugs was an essential element. What else is out there? It would seem to apply to breath, urine, and blood readings for OUI trials. It may also apply to probation revocation hearings where the basis for the probation violation is a dirty UA. Civil cases may not escape either. In fact, it would seem that whenever there is a device with a reading that constitutes an essential element to an offense or claim, the proponent of the reading has a Manewa-Assaye foundation to overcome.

District Court Abused Discretion in Limiting Criminal Defendant's Evidence at Trial.

State v. Inman (ICA September 15, 2009)

Background. Inman was charged with several counts of violating an injunction against harassment (HRS § 604-10.5). An injunction was imposed against Inman. He was not permitted to contact or threaten Klein. The charges allege that Inman made various phone calls, glared, lunged, and made an obscene gesture at Klein. Inman failed to timely file a witness list and moved the district court for leave to file a witness list. Inman proffered three witnesses: Gifford, his fiancé who would testify that he was at another place when one of the incidents took place, Parks, who would testify that she never saw Inman lunge at Klein, and Padamada, who would testify that he never saw Inman drive by and make the obscene gesture.

Over the State's objection, the district court ruled that Gifford, as an alibi witness, would allowed to testify, and that Parks and Padamada would be allowed to testify only if Inman submitted a witness list including their names, addresses, phone numbers, and birth dates. Inman submitted a list, but did not include Padamada's birth date and phone number. The State argued that because Inman failed to strictly comply, all three witnesses should be excluded from testifying. The district court ruled that Parks and Padamada could not testify and that Gifford could only testify about a particular incident and not others. After a bench trial, Inman was found guilty of all but one count.

Discovery Sanctions Based on Four Factors. In misdemeanor prosecutions, the trial court has the discretion to require discovery provided in Hawai'i Rules of Penal Procedure Rule 16. HRPP Rule 16(d). According to the ICA, the district court's preclusion of Inman's witnesses was a discovery sanction for its failure to comply with the pretrial conference order. "[T]he imposition of sanctions should not encroach on a fair trial. In particular, the exclusion of defense evidence in criminal cases as a means of sanction is a drastic measure for the right of a defendant to adduce evidence in his [or her] behalf is one of the fundamental inherent in the due process guarantee of a fair trial." State v. Ahlo, 79 Hawai'i 385, 399, 903 P.2d 690, 704 (App. 1995). In fashioning discovery sanctions under HRPP Rule 16, the trial court must consider these factors: (1) whether the defendant acted maliciously or in bad faith; (2) the extent of prejudice to the prosecution caused by the violation; (3) whether the prejudice could have been cured by less severe measures than the exclusion of evidence; and (4) any other relevant circumstances. Id. at 400, 903 P.2d at 705.

District Court Abused Discretion in Imposing Severe Discovery Sanctions on Defendant. The ICA held that the district court abused its discretion in precluding testimony of Parks and Padamada. The sanctions were based on Inman's failure to include Padamada's birth date. According to the ICA, there was no evidence that Inman acted maliciously or in bad faith and, "more importantly," there is no evidence that the State suffered any prejudice.

Other Available Sanctions. The ICA noted that there were other appropriate sanctions available to the district court. "Willful violation by counsel of an applicable discovery rule or an order" allowed the district court to order money payments, refer the attorney to disciplinary action, or use its contempt power. HRPP Rule 16(e)(9)(ii); State v. Fukusaku, 85 Hawai'i 462, 492, 946 P.2d 32, 62 (1997); State v. Dowsett, 10 Haw. App. 491, 499-500, 878 P.2d 739, 743-44 (1994).

Not Harmless Beyond a Reasonable Doubt. According to the ICA, evidence of Inman's guilt was "not overwhelming" and there was "conflicting evidence" at trial. The testimonies of Parks and Padamada certainly could have changed the outcome of Iman's trial. And so, the errors were not harmless beyond a reasonable doubt. State v. Vinuya, 96 Hawai'i 472, 481, 32 P.3d 116, 125 (App. 2001).

Sanction Powers v. Defendant's Right to Present Evidence. In this case, and in Ahlo, the ICA reviewed the discretion of the trial court and looked to four factors in determining if there was an abuse of discretion. There seemed to be little deference here. Would the same analysis apply if the State has violated discovery orders? Maybe. The Ahlo factors are not unique to violations by the defendant. They could just as easily apply to the State. Did the State act in bad faith? Did the Defendant suffer prejudice? Are there less severe sanctions available? What are the other circumstances? And besides, if there was a different analysis, what would it look like?

On the other hand, both this case and Ahlo emphasize the due process guarantee of a fair trial. A person's right to present evidence in his or her defense should not be easily curtailed with discovery violations. That may call for a less-stringent application of the factors when the State violates discovery rules and orders. In other words, there should be more deference to the trial court's exclusion of State's evidence. The due process concerns in such a case are out of the equation when the State violates a discovery rule or court order.

Nexus to Loss Necessary Before Imposing Restitution

State v. Domingo (ICA September 11, 2009)

Background. Domingo was indicted for one count of Accidents Involving Death or Serious Bodily Injury (HRS § 291C-12); specifically, that Domingo failed to stop his car at the scene of the accident and breached his duty to remain on the scene pursuant to HRS § 291C-14. Domingo and Tomlin were driving in separate cars on the H-1 freeway. Tomlin crossed his line and sideswiped Domingo, which caused both cars to crash into the guard rail. Tomlin's car flipped on its side and Tomlin died. Domingo's car flipped onto its roof. Domingo got out of the car, walked to the side of the freeway, and took off into the bushes. Approximately 30 minutes later, he returned to the scene.

Domingo pleaded no contest and moved for a deferred acceptance of no contest plea, which was not opposed. The circuit court sentenced Domingo to five years probation and denied the motion for DANC. The circuit court ordered restitution in the amount of $13,225.94 in restitution, which included funeral expenses, a gravestone, and ambulance fee, as requested by Mrs. Tomlin.

Criminal Conduct must have Nexus to Victim's Losses in Order to Impose Restitution. The ICA agreed with Domingo that the circuit court erred in imposing restitution. "The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim . . . as a result of the defendant's offense[.]" HRS § 706-646(2). According to the ICA, the restitution statute plainly states "a defendant cannot be ordered to pay restitution unless he [or she] caused a victim's losses." In this case, the criminal conduct was not linked to the amount requested by Mrs. Tomlin. Criminal liability for HRS § 291C-12(a) "does not require proof that the driver of a vehicle caused injury to or death of a person, but only that the accident the driver was involved in resulted in injury to or death of any person." State v. Chen, 77 Hawai'i 329, 226, 884 P.2d 392, 399 (1994). The ICA concluded that there was "no evidence in the record that Domingo's criminal misconduct caused Tomlin's injuries or death. . . . No nexus between Domingo's conduct and Tomlin's injuries and death has been demonstrated." The ICA reversed the restitution order.

The "Criminal Misconduct" v. just Plain 'Ol Conduct: a Hypothetical. In this case, the ICA held that there was no nexus between Domingo's conduct and the "victim's" injuries and death. Here, it was apparent that Tomlin caused the collision with Domingo, which resulted in his own death. But what if Domingo had caused the accident? That would provide a nexus between Domingo's conduct and the loss (the death). So would it mean that he would have to pay restitution? Perhaps not. The defendant must make restitution only for losses suffered "as a result of the defendant's offense[.]" HRS § 706-646(2). What is an "offense"? The statute never elaborates on the term so now it seems that for this question, the statute isn't so plain. One hint may lie in the ICA's opinion today. The ICA described a necessary nexus between Domingo's "criminal misconduct" and the loss. This could imply that an "offense" under HRS § 706-646(2) is the criminal conduct, i.e. the conduct element of the offense itself.

And if that is so, then even if Domingo did cause the accident resulting in Tomlin's death, he would still not have to pay restitution. He was charged with fleeing the scene of an accident in which a person died, The criminal conduct in that particular crime is the flight and dereliction of duty to stay and render aid, not the attendant circumstance of the death. But this distinction needn't be made here. Perhaps later.