Thursday, April 23, 2015

Confrontation Clause Can’t Stop (Certain) Affidavits of Records Custodians

Background. Ubaldo Cruz was on trial for allegedly committing multiple sexual assaults on his neighbor’s daughter. At trial, Cruz objected to the admission of cell phone records over a three-month period. The circuit court denied the request, but ruled that a failure to call the custodian of records to testify at trial was a violation of Cruz’s constitutional right to confront witnesses. The next day, the prosecution sought to introduce the records with a certified copy of a declaration from the custodian of records on the grounds that they met the business records exception to the hearsay rule. The prosecutor argued that business records “are specifically excluded under Crawford.” The circuit court admitted the records, Cruz was found guilty. Cruz appealed.

The Confrontation Clause and Documents. The Confrontation Clause prohibits the use of “testimonial” statements at trial when the declarant is not present and there was no meaningful opportunity to testify. Crawford v. Washington, 541 U.S. 36, 51-52 (2004). A statement is “testimonial” when it was made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Id. The rule in Crawford applies to documents too.

The business-record exception to the hearsay rule does not trump the Confrontation Clause. Even when there is a regularly-produced document that would be made in the normal course of business, the Confrontation Clause would prohibit its use at trial if the business was producing evidence at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321-22 (2009). For example, certificates of analysis by scientists who determine whether a substance seized as evidence by the police is in fact a narcotic would be testimonial. Id.

But that doesn’t mean all records are prohibited. “Business and public records are generally admissible . . . not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Id. at 324.

The Confrontation Clause will not Prohibit Certain Affidavits from a Custodian of Records. The ICA held that the affidavit from the custodian of records at phone company was not barred by the Confrontation Clause. Here’s the affidavit:

            I, Dominick Kaserkie, hereby declare and affirm based on information and belief that the following is true and accurate to the best of my knowledge:
1.       I am employed at T-Mobile USA, Inc., in the Law Enforcement Relations Group.
2.      My duties include acting as a “custodian of records” on behalf of T-Mobile USA, Inc.
3.      I am authorized to represent T-Mobile USA, Inc., for purposes of this proceeding.
4.      T-Mobile USA, Inc. maintains records relating to T-Mobile USA, Inc. subscribers.
5.      These records include identifying information such as the name of the subscriber assigned to a specific telephone number and call logs for a subscriber’s telephone number documenting both incoming and outgoing calls made by a T-Mobile USA, Inc. subscriber.
6.      These records are made and kept in the regular course of business at T-Mobile USA, Inc.
7.      These records are generated at or near the time that a T-Mobile subscriber uses his cellular phone to make or receive telephone calls.
8.      These records are generated and maintained by employees of T-Mobile USA, Inc.
9.      As part of my job, I have access to, and custody of, these records.
10.   Pursuant to a subpoena, I retrieved true and accurate copies of T-Mobile subscriber information associated with MSISDN [Cruz’s cell number].
11.    T-Mobile USA, Inc. subsequently turned over a copy of these records to the Honolulu Prosecutor’s Office on January 14, 2010.
12.   The records provided to the Honolulu Prosecutor’s Office consist of a true and accurate copy of the records . . . .
13.   These records are kept in the course of regularly conducted activity at T-Mobile USA, Inc.; they are made at or near the time of the acts or events described therein; and they are made as part of the regular practice of T-Mobile USA, Inc.

The Difference Between T-Mobile and a Crime Lab. According to the ICA, this affidavit is not testimonial and the Confrontation Clause does not prohibit its admission. But if the test for a testimonial statement is looking to the circumstances and determining if it is reasonable to think that the statement would be used at trial, wouldn’t this be it? After all, this is a custom-made declaration from the custodian of records at the “Law Enforcement Relations Group” who turned over documents to the Honolulu Prosecutor’s Office. Perhaps the actual records—the call logs or the raw materials usually attached to these kinds of declarations—are not testimonial. But this statement suggests it was not part of the regular course of business. 

Wednesday, April 22, 2015

Fleshing out when you can use Preliminary Hearing Testimony at Trial

State v. Nofoa (HSC April 14, 2015)
Background. Toi Nofoa was charged with one count of kidnapping and one count of terroristc threatening in the second degree. In September 2008, Nofoa was held by a judicial determination of probable cause. Attached to the JDPC was an affidavit from an HPD officer that containing hearsay statements from the CW, Nofoa’s girlfriend. Nofoa had a preliminary hearing.

At the preliminary hearing, the CW testified that she was in a relationship with Nofoa for about two and half years, and she ended it. She testified that about a month after the breakup, Nofoa called and asked if she was “seeing another guy.” She said it was none of his business. That night Nofoa approached her as she was walking back to her car. The CW said that he wanted to talk to her and she started walking with him. She said he started to get aggressive and then pulled her. As she tried to walk away, he put her in a chokehold, said that he had a gun, and told her to get into the car. She did. They drove to the North Shore and stopped at a gas station in Haleiwa to buy alcohol. Nofoa went into the shop and the CW got out and whispered to a man working there to call the police for help. Nofoa saw her and picked her up and put her back in the car. The CW started yelling and screaming. The workers at the store told Nofoa to leave her alone and eventually he released her and he drove off. The police showed up ten minutes later. Nofoa’s counsel cross-examined the CW for about twenty-one pages on the transcript. The district court and the prosecutor did not interrupt the cross-examination. Nofoa was bound over.

About six months later, Nofoa was arrested and charged with the murder of CW. Nofoa took the murder case to trial and was acquitted.

The prosecution for the kidnapping and the TT1 followed the acquittal. Before trial, the prosecution filed a notice of intent to use the CW’s preliminary hearing testimony on the grounds that she was unavailable for trial. Nofoa opposed on the grounds that the hearing offered an insufficient opportunity to cross-examine the CW. Nofoa argued that at the time of the preliminary hearing, the discovery disclosures were incomplete. The prosecution had not disclosed a three-page written statement by the CW, a recorded interview of the CW, and a five-page police report with another statement of the CW. Nofoa did not have access to the 911 call made from the gas station either.  On top of that Nofoa argued that the purpose of the prelim is to determine probable cause, and it cannot be used at trial. The circuit court rejected Nofoa’s arguments and allowed the prosecution to use the testimony.

At trial, the court warned counsel that there would be no references to CW’s death. At the end of the trial, during his closing argument, Nofoa’s lawyer argued that it had to determine whether the CW or Nofoa was telling the truth. He told the jury that it could not find the CW credible because they know nothing about her:

[W]hat do we know about CW? What do we know about her credibility? Okay. We know what kind of car she drives. We know she got a new boyfriend a month after she broke up her . . . two and a half year, long-term relationship broke up. That’s about all we know.

Okay. Because you don’t know anything about her and her credibility, the only thing that you can do to judge her credibility is to compare her story to any other evidence presented in the trial. That’s the only thing you can do, because you didn’t get to see, hear, you know, like you did with [Nofoa].

The circuit court interrupted the argument and at a bench conference said that counsel had opened the door. The circuit court said that the remedy at that point was the inform the jury that the CW was dead. Over Nofoa’s objection and denying his request for a curative instruction, the circuit court allowed the prosecution to tell the jurors that the CW was dead during rebuttal. The prosecution did just that and then immediately alluded to the CW’s preliminary hearing testimony about Nofoa using a gun to threaten her. The jury found Nofoa guilty and the circuit court sentenced him to prison for 20 years concurrently. The ICA affirmed.

The Odd Issue of Judicial Bias. The HSC first confronted the curious problem of identifying the issue on appeal. A trial judge has broad discretion to control the scope of a closing argument. State v. Adams, 61 Haw. 233, 234, 602 P.2d 520, 521 (1979). But the judge can abuse its discretion at some point in determining the scope of argument. The HSC held that the circuit court abused its discretion in allowing the prosecution to refer to facts that were not in evidence. The HSC relied on a line of cases in which prosecutors commit misconduct when he or she refers to facts that were never adduced by the evidence at trial. State v. Tuua, 125 Hawaii 10, 14, 250 P.3d 273, 277 (2011); State v. Basham, 132 Hawaii 97, 114-15, 319 P.3d 1105, 1122-23 (2014). In this case, the circuit court essentially instructed the prosecutor to engage in misconduct. This isn’t the prosecutor’s fault, but was an abuse of discretion on the part of the circuit court. Nor is the issue harmless beyond a reasonable doubt. The HSC held that there was a reasonable possibility that this last-minute reference to the death of the CW contributed to the conviction.

What if the Circuit Court Re-Opened Trial to Allow Evidence of the Death? Does the analysis hinge on the fact that the CW’s death was not in evidence? What if the prosecutor stood up after closing and sought judicial notice or asked to reopen the trial to present evidence of the CW’s death? Would that have solved the problem?

When you get to use Prior Testimony at Trial. The defendant has the right to confront witnesses at trial. Haw. Const. Art. I, Sec. 14; U.S. Const. Am. VI. Out-of-court statements are barred by the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59 (2004). Once the declarant is deemed unavailable, the statement does not offend the Hawaii confrontation clause “only if the defendant was afforded a prior opportunity to cross-examine the absent declarant about the statement.” State v. Fields, 115 Hawaii 503, 516, 168 P.3d 955, 968 (2007). This has to be a “meaningful opportunity” to cross. Id. at 528, 168 P.3d at 980.

Putting Meaning in “Meaningful.” Here, there’s no question that at the time of trial, the CW was unavailable. She’s dead. The real question was whether the cross at the prelim was a “meaningful opportunity” that would not offend the Confrontation Clauses. The HSC noted that the use of preliminary hearing at a  trial depends in large part on the discovery that was available at the time and the restrictions imposed by the trial court at the preliminary hearing. See State v. Faafiti, 54 Haw. 637, 641, 513 P.2d 697, 701 (1973); Toledo v. Lam, 67 Haw. 20, 22, 675 P.2d 773, 775 (1984). The HSC also looked to cases from other jurisdictions and declined to adopt a bright-line rule that would have banned the use of any and all preliminary hearing testimony.

Depends on the Case. Instead, the HSC adopted a case-by-case approach and emphasized three factors:
[I]n order to determine whether Nofoa had a sufficient and meaningful opportunity for cross-examination at the preliminary hearing, we consider the following factors: 1) the motive and purpose of the cross-examination, 2) whether any restrictions were placed on Nofoa’s cross-examination during the preliminary hearing, and 3) whether Nofoa had access to sufficient discovery at trial to allow for effective cross-examination of CW.

According to the HSC, the first two factors pointed toward admissibility. Nofoa’s motive was to discredit the CW at the preliminary hearing. This was significantly similar to the motive at trial—discredit the CW’s credibility. Secondly, there appeared to be no real restriction on the cross-examination of 21 pages of testimony.

The third factor, however, was strong enough to weigh against admissibility. Nofoa did not have access to all of the discovery that would have assisted him in crossing the CW. The only materials it had was the JDPC and the complaint. Nofoa lacked the CW’s multiple statements, the recorded interview, and a police report with memorializing an oral statement. Moreover, there were real discrepancies in these statements. This amounted to a deprivation of a meaningful opportunity to cross-examine the CW and the preliminary hearing testimony should never have been admitted at trial.

The 911 Call was Admissible. The HSC rejected Nofoa’s claim that the 911 recording from the gas station should never had been admitted. An excited utterance is a hearsay exception. HRE Rule 803(b)(2). To meet this exception, the proponent must show that “(1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the startling report or condition.” State v. Machado, 109 Hawaii 445, 451, 127 P.3d 941, 947 (2006). Nofoa claims that the prosecution failed the second prong. The HSC disagreed. The statement was not the product of reflective thought and was adequately part of the startling event.

And not Prohibited by the Confrontation Clause. The HSC also rejected Nofoa’s claim that the statement in the 911 call violated the Confrontation Clause. The Confrontation Clause only prohibits the admission of “testimonial” statements. State v. Fields, 115 Hawaii at 516, 168 P.3d at 968. A statement is “nontestimonial” when “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. Testimonial, however, is a statement that is not given during an emergency and its primary purpose “is to establish or prove past events potentially relevant to later criminal prosecution.” Id. According to the HSC, the CW’s statement in the 911 call was clearly non-testimonial because “any reasonable listener” would figure she “was facing an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 827 (2006).

Now that the statement is non-testimonial, the two-part test in Ohio v. Roberts, 448 U.S. 56 (1980), determines its admissibility. The non-testimonial, out-of-court statement is admissible when (1) the declarant is unavailable and (2) the statement “bears some indicia of reliability.” Fields, 115 Hawaii at 528, 168 P.3d at 980. Again, the CW is unavailable/dead. Secondly the statement is reliable because it falls within a firmly-rooted hearsay exception. See State v. Sua, 92 Hawaii 61, 71, 987 P.2d 959, 969 (1999).

Is an Excited Utterance Always Going to be Non-Testimonial? This last part on the 911 test is a perfect example of the flow-chart analysis set up in Fields. It took a while, but we finally get to see it at work. And stepping back, if the HSC has already held that it is an excited utterance, wouldn’t it be extremely difficult to do an about-face and hold that this excited utterance is testimonial (i.e., a reasoned statement that was not in the face of an emergency)?

Monday, March 30, 2015

The Previously-Unknown Cabbage Defense

State v. Bowman (ICA February 27, 2015)
Background. Max Bowman was charged with spilling on the highway in violation of HRS § 291C-131. Bowman, a farmer, was driving a truck full of cabbage from his field in Honokaa to Paauilo on the Big Island. He was driving a green flatbed pickup truck with cabbage in the bed. It was not covered. He drove on Route 19—the Hawaii Belt Road—when Officer Romeo Fuiava passed him in the opposite lane. Officer Fuiava kept heading in his direction and saw either cabbage or lettuce in the back of Bowman’s truck. About a half a mile down the road, Fuiava saw lettuce leaves on the road. Fuiava turned around and caught up to Bowman at “Earl’s store.” Bowman was given a citation.

At the trial, the prosecutor orally arraigned Bowman like this:

On or about the 28th day of August, 2013, in Hamakua, State and County of Hawaii, Max Bowman was the operator of a motor vehicle being moved on a highway, which vehicle was not so constructed, covered, or loaded as to prevent any of its load from dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom, thereby a violation of Section 291C-101(a).

Bowman argued that he had been mischarged under subsection (a) and thought that subsection (c) was more applicable to him. Subsection (c) reads:

Vehicles carrying agricultural produce from fields during harvesting shall be exempt from the requirements of this section, but the owner of the vehicle must provide a reasonable removal of all such produce spilled or dropped on the highway.

At trial, Bowman testified that he had harvested the cabbage from his field and admitted some fell onto the highway. The amount was only a few leaves. “It was trimmings. I actually drove past that section of the road later in the day, did not see any of it. I can only imagine the wind blew it off the road to decompose in a matter of days on the side, or it had been run over sufficiently and evaporated on the road. . . . And if reasonable removal is any indication, I feel risk of life and limb, running onto the road, cabbage three or four leaves of cabbage as opposed to letting it decompose naturally does not sound reasonable to me.”

The District Court disagreed and concluded that Bowman’s actions toward removal were unreasonable. The District Court noted that had Bowman gone and picked it up, he would have been acquitted. Bowman was found guilty and sentenced to pay a fine of $250 and a $7 driver education assessment fee. Bowman appealed.

Bowman’s Argument. Here are the two provisions at issue:

(a) No vehicle shall be moved on any highway, unless the vehicle is so constructed, covered, or loaded as to prevent any of its load other than clear water or feathers from live birds from dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom, except that sand may be dropped for the purposes of securing traction, or water or other substance may be sprinkled on a highway in cleaning or maintaining the highway.
. . . .
(c) Vehicles carrying agricultural produce from fields during harvesting shall be exempt from the requirements of this section, but the owner of the vehicle must provide a reasonable removal of all such produce spilled or dropped on the highway.

HRS § 291C-131.

Bowman argued that these paragraphs are two separate offenses: one general offense for all vehicles, and a more specific one for vehicles that carry agricultural produce from fields. The ICA disagreed.

It’s a Defense, not a Separate Offense. According to the ICA, the first paragraph is the general offense and the second one is an exception to that general prohibition. In other words, subsection (c) is a defense to the general offense in subsection (a). When an “exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case.” State v. Jenkins, 93 Hawaii 87, 106-07, 997 P.2d 13, 32-33 (2000). But when the exception is found elsewhere—like in a separate section—“the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense. The prosecution is not required in such instances to negative, by proof in advance, exceptions not found in the enacting clause.” Id. And so the prosecution correctly charged Bowman.

Is Something Tough to Prove the new Absurd Result? The ICA also noted that if it were to adopt Bowman’s argument—that these were two separate offenses—it would lead to an absurd result. According to the ICA, it would be up to the prosecution to demonstrate at the outset that the vehicle was carrying agricultural produce from fields and that the vehicle had been carrying them during harvesting. These facts are “squarely within the knowledge and control of the defendant” and the prosecution would not have “access to information necessary to properly charge” a defendant. That, apparently, is why it would be absurd to hold that this is a separate offense.

Is that absurd? Simply because it’s hard to prove? Is that the new standard in finding an absurd result? Yes, it can be proven. And yes, it is not illogical or an impossibility—the traditional hallmarks of an absurd result—it’s just hard for the prosecution to establish. Is this a marked departure?

The Initial Burden of Establishing a Defense? The ICA never held that this is an affirmative defense. Quite to the contrary, it held that the prosecution must negate this defense once Bowman met the initial burden of production in subsection (c)—that he was in a vehicle carrying agricultural products from the field during harvest time and that he was not unreasonable in trying to clean it up. Without much explanation, the ICA simply held that the there was sufficient evidence to support the conviction because there was evidence that Bowman failed to clean up the leaves of cabbage from a major highway. The ICA did not go into much detail about the burden of production and that all that was needed was a prima facie case before it shifts over to the prosecution to disprove it. After all, a non-affirmative defense is still an element that must be disproven by the prosecution. HRS § 702-205. In these cases, all the defendant needs to do is raise reasonable doubt. See HRS § 701-115 Commentary. And so if this is a defense as the ICA holds and if it is a non-affirmative defense, then how come it’s not enough for Bowman to simply raise the fact that he was transporting cabbage from a field and went back to see if any leaves were still there to trigger the prosecution’s burden in disproving the defense? Did the ICA shift the burden too strongly onto the defendant here?

Wednesday, February 25, 2015

“Alcohol” is not an Element to DUI

State v. Turping (ICA February 25, 2015)
Background. Lori Turping was arrested for operating a motor vehicle while under the influence of an intoxicant. HRS § 291E-61. Specifically she was charged with operating a vehicle while “under the influence of alcohol.” The complaint did not include the statutory definition of the term “alcohol,” which is defined in HRS § 291E-1. Turping moved to dismiss the complaint on the grounds that the complaint failed to include the statutory definition of the term. The motion was denied, the district court found her guilty, and she appealed.

Defining “Alcohol”: an Element or a Defense? The term “alcohol” means “the product of distillation of any fermented liquid, regardless of whether rectified, whatever may be the origin thereof, and includes ethyl alcohol, lower aliphatic alcohol, and phenol as well as synthetic ethyl alcohol, but not denatured or other alcohol that is considered not potable under the customs laws of the United States.” HRS § 291E-1.

“It has long been held that indictments need not anticipate and negate possible defenses; rather, it is left to the defendant to show his defenses at trial.” State v. Adams, 64 Haw. 568, 569, 645 P.2d 308, 309 (1982). And so an indictment need not include defenses in order to be sufficient. Id. at 568-70, 645 P.2d at 309-10.

The ICA set up a framework for determining whether a statutory exception is a defense or an essential element:

[W]here an exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its case.

This general rule does not apply, however, when the facts hypothesized in the exceptive provision are peculiarly within the knowledge of the defendant, or the evidence concerning them is within the defendant’s private control. Furthermore, when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense. The prosecutor is not required in such instance to negative, by proof in advance, exceptions not found in the enacting clause.

State v. Nobriga, 10 Haw. App. 353, 357-58, 873 P.2d 110, 112-13 (1994).

The ICA applied this framework to Turping’s case and held that “alcohol” is not an essential element to the offense. According to the ICA, alcohol is denatured by adding substances that render it unfit for drinking. 27 C.F.R. §§ 21.11, 21.21, 21.31. Non-potable alcohol is alcohol not fit for drinking. Thus, denatured or non-potable alcohol is excepted from the statutory definition and exempts those who are intoxicated by alcohol that is unfit for drinking. Moreover, the term “alcohol” is not in the same place as the enacting statute. Accordingly, this is a defense that need not be pleaded in the complaint.

And You can Forget About Wheeler While You’re at It. The ICA rejected Turping’s argument that this complaint was just as defective as the complaint in State v. Wheeler, 121 Hawaii 383, 219 P.3d 1170 (2009). Unlike the term “operate,” which was held to be an essential element that needs to be pleaded in the complaint, id. at 393-96, 219 P.3d at 1180-83, the term “alcohol” is not a hidden element. It creates no additional element that must be proven by the prosecution.

Monday, February 9, 2015

ICA Won’t Extend Hussein to the HPA

Nichols v. State (ICA December 24, 2014)
Background. Nicholas Nichols was charged with various felonies in two separate cases. One case involved a home invasion and a shooting. The other case arose out of an assault in Kalakaua District Park. Nichols entered a plea agreement. He pleaded guilty to two felony counts in the assault and fifteen felonies in the home-invasion case. The parties agreed that for each count, he would be sentenced to prison and that he would serve some offenses concurrently. The parties, however, were free to argue that some should run consecutively. The prosecution also agreed not to seek extended terms of imprisonment. In the assault case, the circuit court sentenced Nichols to ten years concurrently in the assault case. In the home-invasion case, Nichols was sentenced to prison on those with a five-year mandatory minimum on seven of the counts. All would run concurrently to each other and total twenty years. In the end, though, the circuit court imposed that the assault case run consecutively to the home-invasion case making a total of thirty years with a mandatory minimum of five years.

Nichols was given counsel for the minimum-term hearing before the Hawaii Paroling Authority. The HPA held the hearing and issued its order. It found that Nichols was a Level III offender and set its minimum term at 30 years—in other words, it maxed him out. The HPA stated that the “significant factors identified in determining the level of punishment” included (1) the nature of the offense and (2) degree of injury to person. There was no other explanation.

Nichols petitioned the circuit court pursuant to HRPP Rule 40, but it was dismissed without a hearing. Nichols appealed.

Reviewing the Minimum Term Determination. A Rule 40 petition is the appropriate way to challenge a minimum term of imprisonment set by the HPA. Coulter v. State, 116 Hawaii 181, 184, 172 P.3d 493, 496 (2007). “[J]udicial intervention is appropriate where the HPA has failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner’s constitutional rights.” Williamson v. Hawaii Paroling Auth., 97 Hawaii 183, 195, 35 P.3d 210, 222 (2001). Judicial review is limited to situations in which “the decision of a state administrative agency is an arbitrary one . . . made without fair, solid, and substantial cause or reason; but it is not necessarily so because mistakenly or even wrong[.]” Id. Review is limited to whether “the parole board has followed the appropriate criteria, rational and consistent with the applicable statutes and that its decision is not arbitrarily and capricious nor based on impermissible considerations.” Id.

Stating the Reasons for the Heavy Minimum. The ICA looked at the HPA’s powers and roles. First, the HPA has the power to equate the minimum with the maximum sentence. Williamson, 97 Hawaii at 195, 35 P.3d at 222. The ICA noted that such action was “extraordinary” and would normally require a more detailed explanation by the HPA before taking that action. “Where the absence of a more detailed explanation would prevent our meaningful review of, or leave us in doubt, whether the HPA acted arbitrarily or capriciously in applying its Guidelines, we may require a more detailed explanation.”

But not here. The ICA actually held that in this case there was enough in the record for it to see how the HPA reached its decision. Nichols’ conduct was violent in both cases. People were shot, paralyzed, and seriously injured. That was satisfactory for the ICA to affirm the dismissal of his Rule 40 petition.

The HPA is not a Sentencing Court. In reaching this holding, the ICA noted that unlike the circuit court, which must state its reasons for consecutive terms of imprisonment, State v. Hussein, 122 Hawaii 495, 509-10, 229 P.3d 313, 327-28 (2010), the HPA is held to different standards, but it was unclear which standards the ICA meant. A sentencing court has the power to impose consecutive terms. It’s just that when it does exercise that power it has to state on the record why consecutive terms are necessary. Similarly, the HPA has the power to max out inmates. But here the ICA did not extend the disclosure requirement from Hussein to the HPA. Could this be an open invite for the HSC to do just that? We’ll see.

Wednesday, January 7, 2015

Pretrial Colloquy Must Include Notice that Right NOT to Testify Cannot be Used Against Defendant

State v. Monteil (HSC December 23, 2014)
Background. James Monteil was charged with one count of prostitution. HRS § 712-1200(1). He pleaded not guilty. At the start of the bench trial, the district court judge engaged in a colloquy about his rights. The court asked Monteil if he understood that no one could force him to testify, that no one could force him to present evidence, that the State had to prove its case beyond a reasonable doubt, that if he did wish to testify, he’d have to testify under oath and be subjected to cross-examination by the prosecutor, and that he could wait to decide to testify until after the State finished presenting its case. Monteil said he understood these rights. The trial court did not inform Monteil that if he did not testify, his silence could not be used against him in deciding the case.

At trial, HPD Sgt. Chad Taniyama testified that he posted an ad on “” entitled “ExOtIC BeAuTy AwAiTs You ToDaY.” Here’s the ad:

Hey fellas my name is SiN.
I am here for a short visit, take advantage while you can.
I’m proof that amazing beauty comes in small packages. I’m
5’ with race car curves and eager to make your dreams come
true. Your imagination is our only limit. 100% REAL!! I
guarantee you won’t want to say goodbye.
420 Friendly.
Send me a message at to set up an

Sgt. Taniyama testified that he received an email from Monteil and had an email exchange as “SiN.” They made arrangements to meet in Kona. Sgt. Taniyama informed Monteil that it would cost $300 for “GFE experience for an hour or two” and made arrangements at a hotel in Kona. On the day of the arranged time and place, Monteil showed up and met with Officer Sharon Yoon, who was dressed up “as a prostitute.” Monteil went inside the room and Officer Yoon said she was “gonna get ready.” She left the room and other officers came in. They arrested Monteil and he had $300 cash on his person. Sgt. Taniyama explained that “GFE” stood for “girlfriend experience,” which according to the officer, meant sexual intercourse without contraceptives. There was no express evidence that Monteil came into the room to have sex.

Monteil took the stand without further colloquy. He testified that he had no intention of having sex, but was looking for an escort to take to dinner and have a drink. He said that he thought “GFE” meant “good-faith estimate” or “good fun everywhere experience,” which, according to him, was a common term in the hotel industry. The district court found Monteil guilty and sentenced him to a $500 fine. He appealed and the ICA affirmed.

Sufficiency of Evidence. Evidence is sufficient to sustain the verdict when “there is ‘substantial evidence’ to support the conclusion of the trier of fact.” State v. Matavale, 115 Hawaii 149, 157-58, 166 P.3d 322, 330-31 (2007). Substantial evidence is “credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Id. at 158, 166 P.3d at 331.

A person commits the offense of prostitution if he or she “pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.” HRS § 712-1200(1)(b). Here the crux of the issue came down to payment in exchange for sexual conduct. Both Sgt. Taniyama and Monteil had different definitions of “GFE experience.” The district court relied on the officer’s definition over Monteil’s. That was enough for the HSC to affirm the ICA’s conclusion that there had been sufficient evidence to convict Monteil of the offense of prostitution.

The Pre-Trial Colloquy Must Include Notice that Not Testifying Cannot be Used Against Defendant. Just as the defendant has the right to testify at trial, he or she also has the right to not testify. State v. Silva, 78 Hawaii 115, 124, 890 P.2d 702, 711 (App. 1995). This was well established in Hawaii long before Statehood too. King v. McGiffin, 7 Haw. 104, 114 (Haw. King. 1887) (prosecutor’s comment on defendant’s failure to testify was “highly improper”). Modern-day rules of evidence also prohibit any negative inference to be drawn from the defendant’s refusal to testify. HRE Rule 513(a). In order to ensure that this right is respected, the trial court must engage in an open colloquy with the defendant that “he or she has the right not to testify and that if he or she does not testify then the jury can be instructed about that right.” Tachibana v. State, 79 Hawaii 226, 236 n. 7, 900 P.2d 1293, 1303 n. 7 (1995). The colloquy is required only when the defendant does not testify.

The HSC held that “in order to more fully protect the right not to testify under the Hawaii Constitution, the trial courts when informing the defendant of the right not to testify during the pretrial advisement must also advise the defendant that the exercise of this right may not be used by the fact finder to decide the case.” However, the HSC limited the effectiveness to trials starting after the date of this opinion.

Monday, January 5, 2015

Discovery Shenanigans and Race-Based Sentencing

State v. David (ICA December 15, 2014)
Background. Peter David was charged with second-degree murder of Santhony Albert and second-degree assault with a dangerous instrument of Torokas Kikku. During the opening statement, the prosecutor, Darrell Wong, told the jury that the three of them were at Kikku’s apartment in Waipahu. David and Albert were drinking and wrestling. At some point, David’s cousins point out that David had a cut on his nose. The prosecutor told the jury that at that point, David said “[n]obody does this to me, make me look like this, beat me up.”

After the opening statement, David’s counsel, Edward Aquino, objected that that statement was not made part of the discovery. The prosecutor responded that his understanding of discovery rules required only disclosure of written or recorded statements by the defendant. The circuit court—without correcting the prosecutor’s understanding of the rules—ruled that it was not going to preclude the statement, but give David ample time to prepare if necessary. The prosecutor identified Kikku as the witness who would testify that David made the statement. The circuit court ordered the prosecutor to make Kikku available for the defense counsel to interview. David declined, but requested a further opportunity to interview Kikku and explore possible alternatives.

Trial began and before Kikku testified, the circuit court asked David’s counsel if he had time to prepare for the statement. Kikku revealed further that she told the prosecutors about David’s statement on two separate occasions—once in July and again in three days before trial. David again renewed his claim of unfair surprise and asked that the statement be excluded. The request was again denied.

In the middle of Kikku’s testimony, the parties held a bench conference where the prosecutor proffered that Kikku would say that David told Albert, “I want the beer that you have in your car.” Albert said, “no, you can’t have the beer” and David was upset. David’s counsel objected to this brand new statement that had not been disclosed by the prosecution. David moved for a mistrial. The circuit court ruled that the statement should have been disclosed, but there was other evidence established that David and Albert were upset with each other and that they had been drinking alcohol. The circuit court denied the motion and ruled that the prosecution’s failure to disclose “can be cured by a continuance[.]” Kikku testified about the statement regarding the beer and about the statement during the opening.

The prosecution later elicited evidence that Albert and David got into a fight and that Albet had been stabbed to death. There was also some evidence that David threw rocks at Kikku and she had scratches on her arms. After the prosecution rested, David testified. He said that he was invited to the party in Waipahu and that he was not fighting with Albert in the parking lot when the police arrived. He denied talking to the police in the parking lot.

The prosecution then sought to call rebuttal witnesses that would impeach David’s testimony as to what he said to the police in the parking lot and impeach the invitation to the party. Over David’s objection, the circuit court allowed the witnesses to testify.

David was found guilty of manslaughter and assault in the second degree. At the sentencing hearing, the prosecutor highlighted the fact that David was from Chuuk, Micronesia and said “we’re talking Micronesians who get inebriated on alcohol, then become violent with their own family members, their own friends and they involve knives.” The prosecutor urged a 20-year sentence in order to “send[] a message to the Micronesian community” that this behavior “is not acceptable in the laws of the United States and the State of Hawaii.” The prosecutor prefaced these comments by saying he “by no means mean[t] to be a racist about anything.”

The circuit court sentenced David to prison for 20 years.

Discovery Violations and the Remedies for them. The ICA made it clear that the prosecutor violated the discovery rules. The prosecution is required to disclose to the defense, “any written or recorded statements and the substance of any oral statements made by the defendant[.]” HRPP Rule 16(b)(1)(ii). The duty to disclose continues and the prosecution must disclose materials when it learns about its existence. HRPP Rule 16(e)(2). The prosecutor’s failure to disclose David’s statements about his nose and the beer violated Rule 16.

Once a violation is found, the trial court has discretion in fashioning a remedy. When a party has failed to comply with the discovery rules, “the court may order such party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances.” When exercising this discretion, the trial court “should take into account the reasons why the disclosure was not made, the extent of prejudice, if any, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstance.” State v. Dowsett, 10 Haw. App. 491, 495, 878 P.2d 739, 742 (1994). The court must look to less drastic measures to rectify the prejudice before declaring a mistrial. Id.

In this case, the ICA held that while the prosecutor clearly violated Rule 16 by not disclosing these statements, its failure to disclose did not warrant dismissal and the chance to continue the case was an adequate remedy.

Prosecution can call Rebuttal Witnesses to Impeach Defendant’s Testimony. There are three basic rules when it comes to rebuttal evidence:

First, as a general rule, a party is bound to give all available evidence in support of an issue in the first instance it is raised at trial and will not be permitted to hold back evidence confirmatory of his or her case and then offer it on rebuttal.
Second, this general rule does not necessarily apply where the evidence sought to be presented on rebuttal is “negative of a potential defense,” even if the evidence also confirmatory of an affirmative position upon which the party seeking to present the evidence bears the burden of proof.
Third, although a plaintiff is not required to call, during his or her case-in-chief, every conceivable witness who might contradict a potential defense witness, it is also generally true that a party cannot, as a matter of right, offer in rebuttal evidence which was proper or should have been introduced in chief, even though it tends to contradict the adverse party’s evidence, it may and generally should decline to admit the evidence.

State v. Duncan, 101 Hawaii 269, 276, 67 P.3d 768, 775 (2003). So because rebuttal evidence is not a matter of right, the trial court has the discretion to permit rebuttal evidence. Id.

Here, the prosecution sought to call rebuttal witnesses that contradicted or impeached David’s testimony on two points: that he had been invited to Waipahu and that he did not speak to the police. The ICA concluded that this rebuttal evidence went to credibility issues of the witnesses, including David, and it was not an abuse of discretion in allowing them to testify after David.

Sending a Message to the “Micronesian Community.” The ICA made it pretty clear: “a defendant’s race, ethnicity, or national origin cannot be used as a justification for the imposition of a harsher penalty on the defendant.” Similarly, an “appeal to racial prejudice threatens our multicultural society and constitutional values. We must therefore recognize that our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” State v. Rogan, 91 Hawaii 405, 414-15, 984 P.2d 1231, 1240-41 (1999). The ICA held that the prosecutor’s sentencing remarks were “highly improper.” He emphasized David’s ethnicity and used negative stereotypes about Micronesians and urged the sentencing court to make an example of him for the rest of the Micronesian community. These comments were so inflammatory that the sentencing court should have taken to ensure that its sentence was not in anyway the result of the comments. And even though the court did not accept or rely on the prosecutor’s representations about Micronesians, “justice must satisfy the appearance of justice[.]” Offutt v. United States, 348 U.S. 11, 14 (1954). And so the ICA vacated the judgment and remanded the case to sentencing before a different judge.