The Public's Right to Know (About Potential Juror Misconduct)

Oahu Publications Inc. v. Ahn (HSC July 16, 2014)

Background. Last summer, Christopher Deedy was on trial for the death of Kollin Elderts. After weeks of testimony, the case went to the jury for deliberation. The jury deliberated for several days before it became hopelessly deadlocked and the circuit court, Judge Karen Ahn, declared a mistrial. This case was covered by Oahu Publications, better known as the Honolulu Star-Advertiser, and KHNL/KGMB. On the fifth day of jury deliberations, Judge Ahn held five hearings that were not open to the public at the end of which, Judge Ahn sealed portions of transcripts pertaining to these sessions. At the last proceeding, Judge Ahn ordered the courtroom cleared a few times. The media did not object to the closing of the courtroom. When they resumed in the open, Judge Ahn declared a mistrial.

A few weeks later, the Star-Advertiser and KHNL/KGMB (the media) filed in the HSC petitions for a writ of prohibition and a writ of mandamus on the grounds that the closing of the courtroom and sealing of portions of transcripts violated the First Amendment. The media asked the HSC to issue a writ that prohibited Judge Ahn from further sealing the transcripts and unsealing what she has previously sealed. The media also asked for a writ that would prevent Judge Ahn from closing the courtroom and sealing documents during the re-trial (which is happening right now) without first providing notice, an opportunity to be heard, and the issuance of findings of fact for preventing public access to the courtroom.

The HSC eventually remanded the case with instructions to litigate the issue further by having the media file motions and allowing the State to respond. Judge Ahn granted the motion in part and explained her actions. She also unsealed parts of the transcript. The transcripts revealed that the closed sessions addressed a potential issue pertaining to juror misconduct. The issue started when a juror asked Judge Ahn’s clerk what they should do if “we feel one of the jurors is a friend of one of the sides?”

This lead to bringing in the foreperson for questioning. The foreperson reported that he noticed a juror eating lunch with “the family” and it looked to the foreperson like the juror was friends of the family based on interactions in the hallway outside the courtroom. The juror was brought in for questioning by Judge Ahn. The juror told the court that he or she “can be fair to both sides” in this case. Deedy objected to the questioning as insufficient, but was overruled.

Later sessions revealed that the jury was going to be deadlocked. Deedy revisited the sufficiency of the questioning by Judge Ahn and argued that if a retrial were to happen, this could bring about Double Jeopardy concerns. The State agreed and requested further questioning of the juror. At the final closed session, Judge Ahn questioned the juror further. The juror said that he shook hands with “one guy I used to work with . . . I think like almost seven years ago.” The juror said it did not influence him in this case. The juror, however, did say that he had some contact with someone associated with the case. The juror said that there was another time in which he saw a person that could be associated with the case. Deedy requested more questions to determine if there was in fact juror misconduct. The State objected. The remainder of the proceedings were sealed.

The proceedings returned to the HSC.

The First Amendment and the Qualified Right to Attend Jury Trials. “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]” U.S. Const. Am. I. “The right to attend criminal trials is implicit in the guarantees of the first amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This right is not unlimited. It is based on the considerations of “logic and experience.” Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty, 478 U.S. 1, 8 (1986). “Experience” prong, the court must determine if “the place and process have historically been open to the press and general public” Id. The “logic” prong hinges on whether “public access plays a significant positive role in the functioning of the particular process in question.” Id. If both are satisfied, a qualified First Amendment right of access attaches to the proceeding. The SCOTUS held that the First Amendment applies to the evidence and testimonial phase of the trial, Richmond Newspapers, Inc., 488 U.S. at 580, as well as the testimony of minors, Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 586, 606 (1982), and during voir dire. Press-Enter. Co., 464 U.S. 501, 505 (1984).

The Hawaii Constitution’s Right to Free Speech and Press. “No law shall be enacted . . . abridging the freedom of speech or of the press[.]” Haw. Const. Art. I, Sec. 4. In interpreting this provision, the HSC “considers the case law established under the first amendment of the United States Constitution.” In re: HGEA, 116 Hawaii 73, 84, 170 P.3d 324, 335 (2007). Even though the language between the state and federal constitutions are pretty much identical, the HSC “may find that the Hawaii Constitution affords greater free speech protection than its federal counterpart.” Crosby v. State Dept. of Budget & Fin., 76 Hawaii 332, 340 n. 9, 867 P.2d 1300 (1994). According to the HSC, throughout Hawaiian history, the public has enjoyed a “long tradition” of access to the courts. This tradition goes back to the 1820s as the kapu system gave way to more Westernized courts of law. “Courts are established for the judicial administration of justice. They are open to the public . . . . The fact that they are open serves as a safeguard of the integrity of our courts." State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963). Put differently, “[t]he words ‘public trial’ are self-explanatory.” Id.

“Procedural and Substantive Requirements.” So if the right attaches, the court has to undergo certain “procedural and substantive requirements.” The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” United States v. Brooklier, 685 F.2d 1168, 1167-68 (9th Cir. 1982). In order to justify closing the courtroom, the court must find (1) closure serves a compelling interest; (2) there is a substantial probability that, absent the closure, the compelling interest would be harmed; and (3) there are no alternatives to closing the courtroom that would protect the interest. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Ore., 920 F.2d 1462, 1466 (9th Cir. 1990).

So When Does the Court have to do this? The HSC examined when the trial court must make these provide opportunity to object and make findings. Here, the stage of the trial was no longer during the testimony of witnesses or the evidentiary phase of the case, but what it called the “midtrial examination of jurors.” The HSC also examined the sealing of transcripts of the closed proceedings as a close analogy.

Examining Jurors for Potential Juror Misconduct is a Critical Stage of the Trial Creating a Limited First Amendment Right for the Press. First off, the HSC noted that public access of the examination of jurors to determine the possibility of misconduct may infringe upon the defendant’s right to an impartial jury. U.S. Const. Am. VI; Haw. Const. Art. I, Sec. 14. This right means that the defendant enjoys the right to impartial jury deliberation, which “shall remain private and secret[.]” United States v. Olano, 507 U.S. 725, 737 (1993); State v. Kim, 103 Hawaii 285, 292, 81 P.3d 1200, 1207 (2003) (“public policy demands that the sanctity of jury deliberations be vigorously guarded to ensure frankness and open discussion.”).

Whenever there is the possibility of juror misconduct, the trial court has a duty to investigate. State v. Yamada, 108 Hawaii 474, 479, 122 P.3d 254, 259 (2005). Herein lies the conflict. The investigation of juror misconduct must be made on the record, but that would include proceedings to which the public normally has access. From here, the HSC applied the “logic and experience” test to midcourt proceedings.

As for the experience portion, the HSC concluded that there is no clear tradition of “either open or closed proceedings when a court conducts a midtrial examination of jurors regarding misconduct.” And so it was a push. The HSC held that under the experience prong, there is “little guidance in this case and it is appropriate to give greater weight to the ‘logic prong[.]’” From there, the HSC held that logic supported an open courtroom. In the end, the HSC held that the qualified right of access to the courtroom at trial is “not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate juror misconduct.”

The Trial Court did not Follow the Necessary Procedures. Having held that there was a constitutional dimension to these proceedings, the HSC looked to the closing of the courtroom. It noted that the trial court made no findings justifying the closure of the courtroom. The generalized statements later made by the trial court about the pressure of having the media there was simply insufficient. The court must “make factual findings specific to the circumstances that indicate the substantial likelihood that an open hearing would interfere with the defendant’s right to a fair trial by an impartial jury.”

The Same Goes for Transcripts. The HSC moved on to examine whether the transcripts should have been sealed. It applied the logic and experience test and held that the trial court must make findings justifying the sealing of transcripts—even after the trial is over. Here, the transcripts were sealed for nearly six months after the mistrial had been declared. The HSC held it should have been unsealed for the public sooner.

A Temper Tantrum about Going to bed Early isn't Terroristic Threatening

In re PP (ICA April 30, 2014)

Background. A minor was charged with terroristic threatening in the second degree. HRS § 707-717(1). He was accused of threatening by words or conduct to cause bodily injury to Jeffrey Kuewa in reckless disregard of the risk of terrorizing him. At trial before the family court, Kuewa testified that he is a counselor at a youth shelter in Haleiwa. He caught the minor smoking in his room and imposed and early bed time (EBT) at 7:00 p.m. Later that day, Kuewa discovered the minor had not finished his chores, was screaming, and was in an out-of-bounds area in the shelter. He gave him two more EBTs, but never told the minor. The next day, the minor approached Kuewa in an aggressive manner outside the shelter and glared at him. Kuewa told him the additional EBTs were based on going out of bounds and screaming. The minor told him he thought it was just for one day. Kuewa told him he was missing the point of an EBT and admitted he compared the minor a “little girl.” Kuewa testified that he was maybe expecting the minor to swing at him. He never did and walked back into the shelter.

Kuewa later learned that once inside the shelter, the minor was telling people that he was going to get Kuewa. The minor went into detail about how he was going to make Kuewa his “bitch” and would kick his ass. A counselor testified that as the minor said this, he was punching the couch and then “even threatened to kill Jeff, things like that.” Kuewa wasn’t around. He learned about it later and called the police. The counselor told the minor that he needed to stop acting like this or else he would not able to go to the beach. He stopped and went to the beach. When they all returned, Kuewa was there in the parking lot.

The family court found that the minor committed the offense. Minor appealed.

Terroristic Threatening and a True Threat. “A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person . . . [w]ith the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person[.]” HRS § 707-715. The state of mind needed to find the offense requires at a minimum recklessness as defined in HRS § 702-206. According to the ICA, the State was required to show that the minor, by word or conduct, threatened to cause bodily injury to Kuewa in reckless disregard of the risk of terrorizing him.

The “True Threat” Requirement. This offense requires proof that the conduct had the attributes of a “true threat.” “Proof of a ‘true threat’ focuses on threats which are so unambiguous and have such immediacy that they convincingly express an intention of being carried out. So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as of purpose and imminent prospect of execution, the statute may properly be applied.” State v. Chung, 75 Haw. 398, 417, 862 P.2d 1063, 1072-73 (1993).

Later, the HSC clarified that a “true threat” is something different than hyperbole and that the prosecution has to “prove beyond a reasonable doubt that the alleged threat was objectively capable of inducing a reasonable fear of bodily injury in the person at whom the threat was directed and who was aware of the circumstances under which the remarks were uttered.” State v. Valdivia, 95 Hawaii 465, 475, 24 P.3d 661, 671 (2001). Finally, the HSC again reiterated that proof of a “true threat” is required in State v. Martins, 106 Hawaii 136, 102 P.3d 1034 (2004).

Ranting and Raving on the Couch is not a True Threat. The ICA characterized the evidence as a couch-rant. It was “a temper tantrum by a frustrated and foul-mouthed kid who was reacting . . . to what he perceived as unjustified, unfair punishment. . . . The evidence is that he just sat there, punching on the couch, carrying on with curse words and adolescent taunts about how he would show whose dick is bigger, how he was going to get Kuewa for punishing him. Notwithstanding the caustic and hyperbolic language he used, there is simply no evidence that could reasonably support a conclusion that Minor was aware of anything but his own childish feelings about the circumstances.”

The ICA held that this was not a true threat. The Minor was having a tantrum on the couch and was making obscene, over-the-top threats to an adult who was not there. When ordered to stop or he won’t got to the beach, he stopped. The ICA reversed the family court’s findings and decree.

Chief Judge Nakamura’s Dissent. The Chief Judge wrote that there was sufficient evidence supporting the family court’s findings of the offense. The minor was shouting and punching the couch in the presence of two workers at the shelter. He was ranting about sexually assaulting and killing Kuewa when he came back to work. This was enough evidence for the Chief Judge.

Yes, Forgery Includes Using Counterfeit Cash

State v. Eberly (ICA March 31, 2014)

Background. Bardwell Eberly, Antony Moore, and Chrisitna Whitley were originally charged with forgery in the first degree. HRS § 708-853. Specifically, they were charged with “uttering” a forged instrument “purported to be United States Currency.” Eberly pleaded guilty to a reduced charge of forgery in the third degree. Before sentencing, however, the HSC in an unrelated case affirmed Eberly’s conviction and sentence to prison. The sentence was stayed pending appeal this entire time. Now that it had come down, the trial court in this case told Eberly that he could not be sentenced to probation. Eberly moved to withdraw his guilty plea. He was sentenced to a year in jail. Eberly appealed.

The Issue and the two big Procedural Problems. Eberly presented a straight-forward issue on appeal: the forgery statutes plainly and unambiguously do not include counterfeiting U.S. currency. The problem in getting to the issue is that it was never raised below. There’s also the additional problem of the guilty plea: “a guilty plea made voluntarily and intelligently precludes a defendant from later asserting any nonjurisdictional claims, including constitutional challenges to the pretrial proceedings.” State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990).

The ICA got around these problems and reviewed the case de novo because the issue goes to the heart of a court’s jurisdiction in a criminal case. The “existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of a cause of action.” Amantiad v. Odum, 90 Hawaii 152, 158-59, 977 P.2d 160, 166-67 (1999). “If a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid.” Bush v. Haw’n Homes Com’n, 76 Hawaii 128, 133, 870 P.2d 1272, 1277 (1994). And so, the ICA did not review this issue for plain error but instead took a fresh de novo review to see if the circuit court had jurisdiction to enter the judgment of conviction and sentence. Turns out it did.

Jurisdiction over Criminal Proceedings. Circuit courts have jurisdiction over “[c]riminal offenses cognizable under the laws of the State, committed within their respective circuits or transferred to them for trial by change of venue from some other circuit court[.] HRS § 603-21.5(a)(1). This is a “fundamental and indispensable prerequisite [] to a valid prosecution.” State v. Alagao, 77 Hawaii 260, 261-62, 883 P.2d 682, 683-84 (App. 1994).

Using Counterfeit cash Constitutes “Uttering” a “Forged Instrument.” The ICA rejected Eberly’s argument that counterfeiting U.S. currency is not conduct fitting the forgery statutes. A person commits the act of forgery when the person “falsely makes, completes, endorses, or alters a written instrument, or utters a forged instrument[.]” HRS § 708-851. The language at issue centers around “utters a forged instrument.” See HRS § 708-853. The charge limited Eberly’s conduct to “uttering” a forged instrument. A “written instrument” is defined as any “paper, document, or other instrument containing written or printed matter or its equivalent” or a “token, coin, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification[.]” HRS § 708-850(7). Finally, “utter” means “offer, whether accepted or not, a forged instrument with representation by acts or words, oral or in writing, that the instrument is genuine.” HRS § 708-850(8).

The factual basis for the guilty plea stated that Eberly gave Whitley a counterfeit $20 bill. According to the ICA, the bill is a “written instrument” because it’s a paper, containing printed matter. The act of giving it to Whitley was enough for the ICA to hold that handing it over to Whitley was enough to show forgery.

A Field Day for Appellate Attorneys? The actual issue in this case is not as newsworthy as the way the ICA got to it. One of the biggest problems for appellate attorneys once they are hired or appointed to a criminal case is to search the record for some shred of evidence showing that counsel preserved an issue on appeal. No one wants the appellate court to dodge an issue simply because it was never raised. That’s been the plain errorbattle raging in the HSC for some time now. The other big issue that arises comes with pleading guilty or no contest. Once that happens, then any issues that may have went down prior to the change of plea are considered waived and can’t be resurrected at trial. Now, it seems that jurisdiction can be the means to get certain issues before an appellate court—even if the defendant pleaded out and even if counsel never raised the issue below.

The DUI Exception to Miranda?

State v. Won (ICA March 28, 2014)

Background. Yong Shik Won was charged with a single count of operating a vehicle while under the influence of an intoxicant. Won was pulled over in the middle of the night by the police and taken to the police station. Once at the station, the police read to Won a form with numbered paragraphs. Paragraph 1 read that any person operating a vehicle on the roadway “shall be deemed to have given consent to a test or tests” to determine the driver’s blood-alcohol content (BAC). Paragraph 2 read that Won was “not entitled to an attorney before you submit to a test or tests[.]” Paragraph 3 read that Won may refuse to take a test “except as provided in section 291E-21. However, if you refuse, “you shall be subject to up to thirty days imprisonment and/or fine up to $1,000 or the sanctions of 291E-65, if applicable.”

Won initialed paragraphs 1 and 3, but not 2 (the bit about the attorney). He told the police that he did not agree with that and would not initial it. Then he signed and dated the form and said he agreed to take a breath test, but refused a blood test. The breath test was given and the results showed a BAC of 0.170.

Won filed a motion to suppress, which was denied by the district court (Hon. Judge David Lo), and was found guilty. Won appealed. The Attorney General’s office filed an amicus brief arguing that the implied consent laws were constitutional.

The Implied Consent Statutory Scheme. Any person operating a vehicle on a public way, street, road, or highway “shall be deemed to have given consent . . . to a test or tests” to determine the driver’s blood-alcohol level. HRS § 291E-11(a). The test can only be administered after the driver “has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter.” HRS § 291E-11(b)(2). If a person refuses to take a test, “none shall be given.” HRS § 291E-15. For a long time, the consequences for a refusal were administrative in nature. In other words, it would adversely affect the person’s driver’s license and was not a criminal offense. HRS §§ 291E-41 and 65.

But in 2011, the Legislature criminalized acts of refusal: “[R]efusal to submit to a breath, blood, or urine test as required by part II is a petty misdemeanor.” HRS § 291E-68. A petty misdemeanor carries maximum penalties of 30 days in jail and a  fine of up to $1,000. HRS § 706-663 and 706-640.

Won’s Miranda Argument. Won argued that because it is now a criminal offense to refuse chemical testing, the police are required to apprise him of his constitutional right to remain silent, right to confer with counsel even if he cannot afford one, and be told that anything he says can and will be used against him in court. Because the police failed to inform him of these rights, his response to the implied consent form is inadmissible and the breath test results must be suppressed as a fruit of the poisonous tree. The ICA disagreed.

Miranda Warnings Required in Custodial Interrogations . . . The United States and Hawaii constitutions require “that before any reference is made at trial to statements made by the accused during custodial interrogation, the prosecutor must first demonstrate that certain safeguards were taken before the accused was questioned . . . [T]he prosecutor must show that each accused was warned that he had a right to remain silent, that anything he said could be used against him, that he had a right to the presence of an attorney, and that if could no[t] afford an attorney one would be appointed for him.” State v. Ketchum, 97 Hawaii 107, 116, 34 P.3d 1006, 1015 (2001); see also Miranda v. Arizona, 384 U.S. 436 (1966).

These warnings are required when the suspect is (1) in custody and (2) subject to an interrogation. State v. Ketchum, 97 Hawaii at 118-19, 34 P.3d at 1017-18. The ICA agreed with Won that there is no question that when the form was presented to him at the police station, Won was in custody. The court disagreed about interrogation.

“Interrogation” arises when the police officer “should have known that his or her words or actions were reasonably likely to elicit an incriminating response from the person in custody.” Id. at 119, 34 P.3d at 1018; See also Rhode Island v. Innis, 446 U.S. 291, (1980).

. . . but not Always. The ICA added that the law distinguishes a suspect being compelled to provide testimonial communications—in which Miranda applies—from being compelled to become the source of real or physical evidence. The communication, according to the ICA, is “testimonial” when the communication relates “to a factual assertion or disclose[s] information.” Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990).

The Statutory Exception to Miranda Requirements!? The ICA rejected Won’s argument that Miranda warnings were required before being presented with the implied consent form. The ICA held inter alia that reading the form to Won did not constitute and interrogation and that his response was not a “testimonial communication.” According to the ICA, a DUI investigation presents “unique circumstances” for the police. The statutes require them to inform arrestees that they can refuse testing. In other words, their conduct in dealing with suspects is highly regulated by statute and is designed to prevent coercive police tactics Miranda was intended to protect. According to the ICA, the police are not looking for an incriminating response, but instead are just trying to comply with a statute. But putting that aside, the ICA concluded that the police inquiry “does not seek testimonial evidence because it is the act or conduct of refusing, not the means by which the refusal is communicated, that violates the criminal refusal statute.” In the end, the ICA held that presenting the form to Won did not constitute “interrogation” for Miranda purposes.

The Statutory Right to Counsel didn’t Apply Either. “It shall be unlawful in any case of arrest for examination . . . [t]o deny the person so arrested the right of seeing, at reasonable intervals and for a reasonable time at the place of the person’s detention, counsel or a member of the arrested person’s family . . . [and] [i]n case the person arrested has requested that the person see an attorney . . ., to examine the person before the person has had a fair opportunity to see and consult with the attorney[.]” HRS § 803-9. The ICA held that this statute, like Miranda, did not apply in Won’s case because this statute was in effect when the HSC came down with State v. Severino, CITE, which held that motorists are not entitled to consult with counsel before deciding on taking a test.

And even if this statutory right to counsel did apply, the ICA would not have suppressed the evidence. “Generally, where evidence has been obtained in violation of a statute, that evidence is not inadmissible per se in a criminal proceeding unless the statutory violation has constitutional dimensions” or if the defendant can show a nexus between the violation and the evidence. State v. Edwards, 96 Hawaii 224, 237-39, 30 P.3d 238, 251-53 (2001). Given the Miranda treatment, the ICA held that there was no constitutional dimension and Won failed to show the requisite nexus.

Telling Suspect he does not have the Right to Confer with Counsel is O.K. In addition to the constitutional and statutory rights, the forms themselves have to be accurate. “[A] driver’s ‘implied consent’ to an evidentiary chemical alcohol test is qualified by his or her implied right to refuse such a test after being accurately informed of his or her statutory right to consent or refuse, as well as the consequences of such consent or refusal.” State v. Wilson, 92 Hawaii 45, 49, 987 P.2d 268, 272 (1999). “Hawaii’s implied consent scheme mandates accurate warnings to enable the driver to knowingly and intelligently consent to or refuse a chemical alcohol test.” Id.

The ICA examined whether paragraph 2—which informed Won that he could not consult with an attorney before deciding on whether to take a test—was misleading. The ICA rejected this contention because there was no right to counsel to begin with.

Criminalizing the Act of Refusal is not Unconstitutional. The ICA moved on to reject Won’s contention that HRS § 291E-68 was unconstitutional. Won argued that in light of the recent case from the SCOTUS, Missouri v. McNeely, 133 S. Ct. 1552 (2013), he had a constitutional right to refuse all chemical testing and the criminalization of that right is unconstitutional. In that case, the SCOTUS held that the warrantless removal of a suspect’s blood can be justified when the prosecution shows an exception to the warrant requirement and that exigency is not a per se exception.

The ICA distinguished McNeely on several grounds. First, it noted that McNeely involved the warrantless intrusion under the skin for extracting a person’s blood. Won submitted to a breath test, which is less intrusive. “Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment.” Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 625 (1989). The ICA examined the refusal statute with regard to only breath tests, not blood tests. According to the ICA, McNeely did not address whether breath tests were subject to the warrant requirement or any of the remaining exceptions to the warrant requirement—like consent. The ICA examined the purpose of the implied consent scheme and balanced that against the privacy rights of drivers. In the end, the statute was deemed constitutional as it applied to breath tests anyway.

No Need for a Warrant in a Breath Test. The ICA made a short analysis about whether the police needed to obtain a search warrant before having Won submit to a breath test. In essence, it held that implied consent scheme was good enough for consenting to a search. It compared this scenario to airport inspections. See State v. Hanson, 97 Hawaii 71, 34 P.3d 1 (2001) (passenger’s implied consent to search toolbox at airport inspection extended to all contents in the box even after the passenger withdraws consent to search).

Editor’s Note. The ICA’s Miranda analysis is deeply strange. It is well-established that the police have to apprise suspects of their Miranda rights when they are in custody and subjected to an interrogation. An interrogation is determined when the police—by word or conduct—engage in express questioning or engage in conduct take action that they know or should know is likely to elicit an incriminating response. That’s it. There are no exceptions to this requirement.

And yet the ICA held that presenting implied consent forms requiring drivers to choose whether to submit to a test or refuse is not conduct by the police arising to “interrogation” for Miranda purposes. Why? How come? According to the ICA, the police are just complying with a statute—it is not designed to elicit incriminating statements—and thus, it is not something that the police know or should know to elicit an incriminating response.

What happens when a person refuses? What is a prosecution for a refusal supposed to look like? The best evidence of the refusal would be none other than the form and the statement from the driver that he or she “refused” to take a test. Certainly those are incriminating statements. Right? I guess not.

Specific Instances of Abuse Cannot be Charged as a Continuous Course of Conduct

State v. DeCoite (HSC February 28, 2014)

Background. Henry DeCoite was charged with a single count of abuse of a family or household member. HRS § 709-906. The complaint stated that the offense took place “during or about the period between February 1, 2005, through June 1, 2007, inclusive, as a continuing course of conduct[.]” In response to a discovery request, the prosecution produced two instances of abuse on November 29, 2006 and on March 13, 2007. DeCoite filed a motion to dismiss the complaint on the grounds that the abuse statute does not allow the prosecution to charge the offense as a continuing course of conduct. At the hearing, the prosecution apparently presented some evidence from a domestic violence expert that multiple instances of abuse toward the same person in a relationship are part of that cycle of violence. The family court (Judge Richard T. Bissen) granted the motion. The prosecution appealed and the ICA reversed. DeCoite petitioned for certiorari.

Discreet Instances of Abuse are not a Continuing Course of Conduct . . . “It shall be unlawful for any person . . . to physically abuse a family or household member[.]” HRS § 709-906(1). The HSC zeroed in on the issue to determine a “narrow” view as to whether two instances of abuse constitutes a continuous course of conduct. A continuous offense arises when there is “a continuous, unlawful act or series of acts set afoot by a single impulse and operated by an unintermittent force, however long a time it may occupy[.]” State v. Arceo, 84 Hawaii 1, 18, 928 P.2d 843, 860 (1996). “The test to determine whether [a] defendant intended to commit more than one offense in the course of a criminal episode is whether the evidence discloses one general intent or discloses separate and distinct intents.” State v. Castro, 69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988). When there “is but one intention, one general impulse, and one plan, there is but one offense.” Id.

So much for the Cycle of Violence . . .

The HSC expressly rejected the prosecution’s contention that the instances of abuse were part of a continuous “cycle of violence.” Here, the conduct element is the act of “physical abuse.” HRS § 709-906(1). Physical abuse means “to maltreat in such a manner as to cause injury, hurt or damage to that person’s body.” State v. Fields, 115 Hawaii 503, 530, 168 P.3d 955, 982 (2007). This, according to the HSC, contemplates discrete episodes of violence whether they occur as an isolated incident or part of a series. The HSC also noted that the “cycle of violence” may include multiple instances of abuse interspersed with a make-up or “loving” stage, but to be a continuous course of conduct, there must be a single criminal impulse. The desire or impulse of the serial abuser is control and power, which are not criminal impulses. In sum, the HSC held that “as a matter of law, an alleged two-year period of domestic abuse can never be charged as a continuous conduct offense.”

The Merger Footnote. In a footnote, the HSC warned that this holding does not stop the defense from seeking a merger of multiple counts of domestic abuse “that factually arise from a single, discrete criminal transaction.” See HRS § 701-109(1)(e). And so, perhaps the cycle of violence does live on, but only as a way for the defense to merge multiple charges of domestic abuse. Ironies abound.

Justice Acoba’s Concurrence. Justice Acoba concurred and wrote separately to note that the issue of whether an offense can be a continuous course of conduct must be determined on a case-by-case basis. He agreed with the result under these particular facts that the two incidents here were not part of a continuous course of conduct.

Justice Pollak’s Dissent. Justice Pollak dissented and wrote that the abuse statute can be construed to include a continuing course of conduct. He took the position that abuse of a family or household member occurs multiple times over a period of time. Hence the statute requiring a “cooling off” period. Justice Pollak felt that the two-year marking as a matter of law was also arbitrary and restricted the flexibility that the case-by-case analysis normally affords. He also wrote that the record in this particular case was too incomplete to warrant adequate appellate review of the issue. Ultimately, he believed that the case should have been remanded back to the trial court to enter findings regarding DeCoite’s motion to dismiss for a completely different issue—violations of the statute of limitations.

A Tachibana Colloquy is not Reciting “a Litany of Rights”

State v. Pomroy (HSC January 31, 2014)

Background. Henry Pomroy was charged with a single count of assault in the third degree. He waived his right to a trial by jury. On the day of trial, the district court did not conduct a colloquy with Pomroy about his right to testify or not testify before trial began. At trial, the complainant, Clark Lukens, testified that Pomroy was his neighbor at the Hale Moana Apartment Complex in Hilo. While he was in the backyard, Pomroy approached him and was screaming. Pomroy accused Lukens of trying to get Pomroy evicted. After five minutes of this, Pomroy left. Lukens then went into an elevator and then Pomroy suddenly appeared out of nowhere. Pomroy went into the elevator with him and the doors closed. According to Lukens, Pomroy shoved, pushed, and elbowed him several times. When the doors opened, Pomroy stopped the attack and left. He said that he had been hit very hard and was in extreme pain, but admitted that he suffered no injuries. None of the other witnesses testified about visible injuries. After the prosecution rested, Pomroy’s counsel said, “we’ll rest too, Your Honor.”

The district court (Judge Barbara Takase) addressed Pomroy. The court told Pomroy that he had the right to testify and that “decision is yours and yours alone. If you choose to testify you will be subject to cross-examination by the state. If you choose not to testify, I cannot hold that against you. But the only evidence I will have is what the State has presented, unless you have other witnesses; you understand that?” Pomroy replied, “Yes, ma’am.” Then this happened:

THE COURT: Alright. Is it your choice to testify or not?

THE DEFENDANT: I think I have already said what has happened, yeah. I don’t have to testify.

THE COURT: Alright. I don’t know what you mean by “I’ve already said” because—

THE DEFENDANT: In my report, when I made it two years ago, what had happened. That’s pretty much what it is.

THE COURT: So you’re talking about what the officer testified to? Because you understand the police report is not in evidence. You understand that?

THE DEFENDANT: I don’t understand what you’re saying.

(Discussion between Counsel and Defendant)

THE COURT: Alright.

THE DEFENDANT: I don’t need any testimony I guess.

THE COURT: Your choice not to testify?

THE DEFENDANT: Yes, ma’am.

The defense rested (again) and the district court found Pomroy guilty as charged. Pomroy filed a motion for new trial alleging that the district court failed to inform him about his right to testify before trial began and that the colloquy was insufficient to ensure a knowing, intelligent, and voluntary understanding of the right to testify before resting. The motion was denied and Pomroy was sentenced to 6 months jail (with 90 days stayed). Pomroy appealed and the ICA affirmed (Nakamura, Foley, and Fujise). Then he petitioned for cert.

The Right to Testify and Ensuring that you Know About it. “In the trial of any person on the charge of any offense, he shall have a right . . . to be heard in his defense.” State v. Tachibana, 79 Hawaii 226, 231-32, 900 P.2d 1293, 1298-99 (1995). In order to protect this right, “trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.” Id. at 236, 900 P.2d at 1303. The actually colloquy must include informing the defendant of (1) the right to testify, (2) that if he or she wishes to testify, no one can prevent the person from doing so, (3) if the person testifies, he or she will be subjected to cross-examination by the prosecution, and (4) the defendant does not have to testify and if he or she does not, a jury would be instructed about that right. Id. at 236 n. 7, 900 P.2d at 1303 n. 7. The “ideal time to conduct the colloquy is immediately prior to the close of the defendant’s case.” Id. at 237, 900 P.2d at 1304.

In addition to this colloquy, the HSC has required a similar colloquy at the start of trial. State v. Lewis, 94 Hawaii 292, 12 P.3d 1233 (2000). The requirement, however, is not as strong as the one before the defense rests. The failure to give a pre-trial colloquy requires additional proof of “actual prejudice” before it arises to reversible error. Id. at 297, 12 P.3d at 1238.

The Colloquy at the End of Trial was Defective. Here, the HSC held that the colloquy at the end of the trial was insufficient. The HSC held that the district court failed to advise Pomroy that he had the right not to testify and that no one can prevent him from testifying. Moreover, the HSC held that this was not a “true colloquy.” A colloquy is an “oral exchange” where the “judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” State v. Han, 130 Hawaii 83, 135, 306 P.3d 128, 90 (2013).

That did not happen here. The district court did nothing more than recite “a litany of rights” and ask if Pomroy understood that litany. There was no engagement to ensure the Pomroy understood his rights. It became even more evident that Pomroy did not understand because he told the district court that he felt he said what he needed to say in some police report that was never admitted into evidence. And even after it was explained to him that that statement was not in evidence, there was no engagement to ensure that he understood the rights that the district court had recited. Thus, the conviction was vacated and remanded for new  trial.

Ensuring an Engagement. This is a tough one. In Han and here, the trial courts did not go through each right and ask the defendant after reciting each right if he or she understood. Would that have made the difference? Why? How would that be any different? How does that show engagement? What if instead of saying “that” the district court said, “do you understand all of these rights?” It certainly would still be a “litany of rights.” Would it have made a difference at all?

Chief Justice Recktenwald’s Dissent. The Chief Justice believed that the record showed an adequate waiver of the right to testify at trial. The district court, he believed, is in the best position to evaluate not only the words coming out of Pomroy’s mouth, but his demeanor and the inflection in his voice. There is nothing in the record that would assume the district court ignored any uncertainties on display in the district court. Justice Nakayama joined.

Prosecutor Can't Supply Legal Definitions for the Court at Closing

State v. Basham (HSC February 6, 2014)

Background. Michael Basham and his son, Aliikea, were charged with assault in the first degree. The prosecution alleged that the Bashams intentionally or knowingly caused “serious bodily injury” to Steven Bloom. See HRS § 707-710. Both went to trial at the same time.

The prosecution adduced these facts from witness testimony. Steven Bloom and his wife, Jennifer Chavez, were driving around Ewa Beach looking for a beach. They got into a minor motor vehicle accident with a blue car, which collided into the back of their car. Both pulled off to the side of the road. The driver was uninjured and Bloom suggested that they exchange insurance information. The driver said he had to call his father. Bloom went back to his car to get his proof of insurance and when he walked back to the blue car he saw Aliikea running up from a nearby beach. Aliikea, according to Bloom, was loud, aggressive, and was trying to intimidate him. Aliikea pushed Bloom. Michael came up from the beach too. Michael was upset too, but Bloom recalled Michael yelling at Aliikea and the driver not hit him. But when Michael showed up, the driver got agitated. Aliikea pushed Bloom again, and put his hands up to or grabbed Bloom’s throat. Bloom knocked Aliikea’s hand away, told Chavez to get behind him, and then he lost consciousness. He could not remember what happened next. He woke up later in his car.

Chavez testified that Aliikea pushed Bloom to the ground and Bloom hit his head. He went down, Basham held him down while Aliikea kicked Bloom and the driver jumped on top of Bloom. On cross-examination, Chavez clarified that Basham held him momentarily and when Aliikea was kicking Bloom and the driver was jumping on him, no one was holding him down. Bloom started having a seizure and Chavez was screaming at the men. When they stopped, she helped him back into his car.  Chavez called 911 and was still on the phone with dispatch when Michael came and started hitting their car. The paramedics and the police showed up soon after that. The police officers testified that when they got there, the driver was gone and Aliikea and Michael were still there. The police were unable to determine what happened.

Michael did not testify, but Aliikea did. He told the jury that he was with his family at the beach when he saw a motor vehicle accident involving his father’s car. Michael told Aliikea to go check it out. Aliikea admitted he was frustrated with his brother, who had been driving the car. He was scolding his brother when Bloom kept coming up to them with his insurance information. Aliikea said he told Bloom to step away until Michael could get there. When Michael showed up, he started talking to Bloom while Aliikea talked to his brother, who was getting a little “crazy.” According to Aliikea, things were fairly calm when out of nowhere, the driver attacked Bloom and started punching him. He said that neither he nor his father held Bloom to the ground. He confirmed that after the attack, the couple went back into their car and it looked like they were going to drive off. Aliikea’s brother was gone already. They knew the police were coming, so Michael told his son to let them know not to drive off. He stood in front of the car to stop them from leaving. Then the cops came.

During the settling of jury instructions, the parties agreed that the court (Judge Randal Lee) should instruct the jury about accomplice liability. The actual instruction given to the jury went like this:

A defendant charged with committing an offense may be guilty because he is an accomplice of another in the commission of the offense. The prosecution must prove accomplice liability beyond a reasonable doubt.

A person is an accomplice of another in the commission of an offense if, with the intention of promoting or facilitating the commission of the offense, the person aids or agrees or attempts to aid the other person in planning or commission of the offense.

Mere presence at the scene of an offense or knowledge that an offense is being committed, without more, does not make a person an accomplice to the offense. However, if a person plans or participates in the commission of the offense with the intent to promote or facilitate the offense, he is an accomplice to the commission of the offense.

The jury was not instructed on the definition of the words “intent to promote or facilitate the commission of the offense.”

At closing, the prosecutor argued that Bloom and Chavez were completely credible and “on behalf of the prosecution, I adamantly state to you, that Mr. and Mrs. Bloom have been completely credible witnesses. . . . They have absolutely no reason to fabricate or otherwise make up the accounts that they recited to you in explicit detail.” Aliikea, on the other hand, “has absolutely no reason to tell you the truth.”

The prosecutor moved on to the accomplice instruction. “Let’s define a couple of those words and put it in everyday English that we can understand. A person is an accomplice if with the intent to promote—what does that ‘promote’ mean? It simply means for our purposes to encourage, the desire to bring about.” Basham objected and during a bench conference, Basham argued that the prosecutor’s definition was a “far cry” from the statutory definition.” Aliikea joined in the objection. The trial court overruled them. The prosecutor continued to tell the jurors that “promote” simply meant “to encourage,” “facilitate,” “make easy” or “bring about.”

Both Bashams were found guilty as charged and sentenced to ten years prison. Basham appealed to the ICA, which affirmed, and then he petitioned for a writ of cert.

Giving your own Erroneous Legal Definitions at Closing is Prosecutorial Misconduct. Basham raised two instances of prosecutorial misconduct. The first was that the prosecutor made incorrect and misleading statements about the law of accomplice liability. The prosecutor defined for the jury the word “promote.” The HSC examined the accomplice statute and held that the word “promote,” though undefined, requires a “conscious objective of bringing about the commission of the offense.” Having the intent to make easy or encourage criminal conduct is not the same. Arguments “of counsel which misstate the law are subject to objection and to correction by the court.” State v. Espiritu, 117 Hawaii 127, 140, 176 P.3d 885, 898 (2008). The prosecutor here provided an erroneous definition of accomplice liability and instead of admonishing the prosecutor, the court overruled Basham’s objection. By overruling the objection, “the court endorsed the definition given by the prosecutor.” The HSC also noted that this error is not harmless beyond a reasonable doubt. There was some question as to whether Basham was an accomplice at all. The HSC vacated the judgment and remanded for new trial.

The Argument that Basham Lied to the Police Without Basham Testifying is Improper Argument. In addition to adding legal terms, the prosecutor argued that Basham was lying to the police. The prosecutor pointed out that the responding officer had determined—after much confusion—that Basham had been the driver that hit Bloom. The prosecutor queried, “who could the only source of that information be? Not [Bloom] who had been knocked unconscious. Michael Basham.” The prosecutor concluded that Basham “took the role of his son as the driver and lied to the police.” The HSC disagreed with the ICA and held that this was not a logical inference that a prosecutor could have made to the jury. Even if it had been a logical inference, the allegation of lying to the police carried the improper perception “by the public as particularly wrongful[.]” Moreover, the HSC noted that if the prosecutor had even tried to admit this as evidence, it would be deemed inadmissible under HRE Rule 404(b) and 403.

Prosecutor’s Comments on the Credibility of Witnesses Improper. Finally, the HSC addressed the prosecutor’s comments that “on behalf of the prosecution, I adamantly state to you, that [Bloom] and [Chavez] have been completely credible witnesses, that they are worthy of your belief.” And that Aliikea had “no reason to tell you the truth.”

According to the HSC, these comments are undoubtedly “an expression of a personal view on the credibility of the State’s witnesses and the guilt of the defendants.” More importantly, the HSC noted that the prosecutor had no basis for making this comment other than the fact that Aliikea was the defendant and standing trial as the accused. This is an impermissible. The prosecutor’s “improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986). Without any particular basis for this assertion, it is a generic accusation that defendants cannot or do no tell the truth. It is “improper, under article I, section14 of the Hawaii Constitution, for the prosecution to make generic accusations during closing argument that a defendant tailored his testimony based solely on the defendant’s exercise of his constitutional right to be present during the trial.” State v. Mattson, 122 Hawaii 312, 326, 226 P.3d 482, 496 (2010). So too, the prosecutor cannot ask the jury to infer a defendant’s incredibility based on the mere fact that the person is a defendant. According to the HSC, Basham was being penalized simply because he was the defendant. This is wholly improper.

Justice Nakayama’s Dissent. Justice Nakayama disagreed with the HSC’s interpretation of the accomplice statute and believed that the prosecutor’s definition of the word “promote” was harmless. For her, the prosecutor’s definition was not all that different than what the statute required and, thus, the court properly overruled the objection. As for the other comments, Justice Nakayama did not agree with the majority that they arose to prosecutorial misconduct. Her disagreement centered largely around her position that the court should not be recognizing plain error in these matters especially since Basham did not object to some comments. As for the prosecutor’s personal view, she believed the comment was nothing more than a “rhetorical device” and that the comment about the defendant having no reason to tell the truth was appropriate in light of the conflicting testimony. Chief Justice Recktenwald joined.