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.

Friday, December 26, 2014

“Penetrating and Comprehensive” Approach to Motions to Withdraw

State v. Harter (HSC December 10, 2014)
Background. Letitia Harter was charged with assault of a law enforcement officer in the second degree, resisting arrest, and disorderly conduct. The charges stemmed from an incident in a Honolulu nightclub, Club 939. Harter initially called the police but the police ended up trying to arrest her for disorderly conduct. The arresting officer later testified as he attempted to “gain control” of Harter, she swung at or around him and scratched the officer’s chin.

At the arraignment, Harter was represented by the public defender. After a few continuances of the trial date and while discovery requests remained outstanding by the prosecution, Harter’s counsel requested that its office withdraw as her lawyer. Harter told the court that she was not happy with her lawyer. She said that after multiple attempts to reach her lawyer, when she finally talked to her lawyer, her lawyer she was crazy when she said she had a new job as an assistant casting director for MTV. The motion was granted and a new trial date was set. The court appointed Te-Hina Ickes as counsel.

There were more continuances with Ickes. On the fourth request for a continuance, this time by the prosecution, Ickes objected on the grounds that the defense was ready to proceed. The requested was granted over objection and set for trial. On that trial date, Ickes orally moved to withdraw as counsel. Ickes told the court that she had just been informed that Harter was unhappy with the way she was being represented and “would like me to withdraw.” Ickes explained that Harter had complained that she was not prepared, not paying enough attention, didn’t return her phone calls, and did not have enough time to prepare for trial. Ickes also pointed out that withdrawal may be necessary to avoid any later claims of ineffective assistance of counsel. Finally, Ickes told the court that there had been a breakdown in communication because “she no longer trusts me” and it was going to interfere with the way she represents her at trial. The court did not rule on the motion and ordered Harter to talk to Ickes after the hearing and come back the next day for trial.

The next day, the court asked Harter if she sat down with Ickes and talked with her. Harter said she went to the Office of Disciplinary Counsel and she did not meet with Ickes because she “didn’t hear you say that I needed to talk to my attorney.” After a heated exchange between Harter and the court, the court denied the motion to withdraw. The court ordered that if Harter still wants Ickes to represent her, she will. If not, “she will go to trial alone, by herself, without an attorney, but we’re going to trial this morning.”

Ickes represented her at trial. The jury found Harter guilty as charged. At the sentencing hearing, Harter addressed the court and made incoherent and strange claims about the FBI and the arresting officer. The court sentenced Harter to a year in jail. Ickes moved to withdraw as counsel, which was granted. A new counsel moved for reconsideration of the sentence, but it was denied. Harter appealed and the ICA affirmed.

Motion to Withdraw as Counsel. The right to the assistance of counsel in a criminal case “will not be satisfied by the mere formal appointment of an attorney.” State v. Kane, 52 Haw. 484, 486, 479 P.2d 207, 209 (1971). And even though “there is no absolute right, constitutional or otherwise, for an indigent to have the court order a change in court-appointed counsel,” State v. Torres, 54 Haw. 502, 504, 510 P.2d 494, 496 (1973), when an indigent defendant asks for new counsel, the trial court has a “duty to conduct a ‘penetrating and comprehensive examination’ of the defendant on the record, in order to ascertain the bases for the defendant’s request.” State v. Soares, 81 Hawaii 332, 355, 916 P.2d 1233, 1256 (App. 1996). The court’s inquiry must allow the court to determine if “good cause” exists to warrant substitution of counsel. Id. Typically, good causes exists if there is a conflict of interest on the part of defense counsel, a complete breakdown in communication between the attorney and client, or an irreconcilable difference between the attorney and the client. Id.

Trial Court’s Duty to Inquire About Conflicts of Interest. The trial court must make a “penetrating and comprehensive” inquiry when the judge should reasonably know that a conflict of interest exists. Cuyler v. Sullivan, 446 U.S. 335, 447 (1980). According to the HSC, this is a “strict requirement.” Generally, a conflict of interest arises when the attorney is in a situation that would be conducive to divided loyalties. State v. Richie, 88 Hawaii 19, 41, 960 P.2d 1227, 1249 (1998). See also Hawaii Rules of Professional Conduct Rule 1.7 (“lawyer shall not represent a client if the representation of that client may be materially limited by the . . . lawyer’s own interests unless (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.” (NOTE: the new version of this rule has different requirements. Check it out here!).

The HSC examined HRPC Rule 1.7 and held that the trial court’s “good cause” inquiry should consider (1) the basis for the conflict of interest; (2) the potential that the conflict would materially interfere with counsel’s independent professional judgment in considering what actions to pursue on behalf of the client; (3) the possibility that the conflict could prevent counsel from taking courses of action that reasonably should be pursued; and (4) counsel’s opinion if his or her representation would be adversely affected. If the court finds an actual or potential conflict, the court must disqualify the attorney or explain the situation to the defendant and obtain a waiver if the defendant still wishes to continue with that attorney.

In this case, Ickes told the court at her motion to withdraw, that she felt withdrawal was necessary in order to protect herself from potential claims of ineffective assistance of counsel. The court made no inquiry if a potential conflict of interest did in fact exist. Even the next day, when Harter did not meet with Ickes and went to the Office of Disciplinary Counsel instead, the court failed to inquire about a potential conflict.

The HSC Finds a Conflict of Interest. Even though the trial court didn’t make the inquiry, the HSC found a conflict existed between Harter and Ickes. The HSC held that Ickes’ “personal interest of protecting herself professionally” would jeopardize Harter’s right to effective counsel. The HSC agreed with the a D.C. appellate court that as soon as counsel learned of the investigation of the defendant’s complaint to the ODC or its equivalent, counsel “acquired a personal interest in the way he conducted appellant’s defense—an interest independent of, and in some respects in conflict with, appellant’s interest in obtaining a judgment of acquittal.” Douglas v. United States, 488 A.2d 121, 137 (D. C. 1985). The HSC noted that Ickes was in a similar situation. Because no inquiry was made on the record, the HSC held that the record showed good cause to grant the motion to withdraw and appoint substitute counsel.

A Note: Going to the ODC Doesn’t Always Trigger Withdrawal. The HSC noted that a complaint to the ODC does not always give rise to withdrawal of counsel. That’s the entire point of the “penetrating and comprehensive inquiry.”

No Prejudice Required . . . Defense counsel is constitutionally ineffective when there is a conflict of interest. State v. Richie, 88 Hawaii at 44, 960 P.2d at 1252. Actual prejudice is not required. Id. The HSC extended the presumption of prejudice to conflicts in which a personal interest is raised and the trial court fails to conduct any inquiry into the conflict. And so, the HSC held that that trial court abused its discretion in denying the motion to withdraw and substitute counsel.

The “Breakdown in Communication” or “Irreconcilable Differences” Grounds for Withdrawal. The HSC discussed what kind of inquiry is required when a motion to withdraw as counsel is raised on the grounds that there has been irreconcilable differences or a breakdown in communication between counsel and client. The HSC explained that its discussion was to provide guidance as this motion is filed frequently across the State.

Again, like a conflict of interest, the trial court has to conduct a “penetrating and comprehensive inquiry” into the nature of the relationship between counsel and client. The HSC noted that the trial court’s inquiry should focus on the “status and quality of the attorney-client relationship” and assess the extent of such a breakdown in communication or irreconcilable differences. Moreover, the trial court also should consider the delay or inconvenience that would result from a substitution of counsel.

Trial Court’s Duty to Convene Competency Hearing. Whenever there is a reason to believe that a “physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case,” the trial court may sua sponte suspend proceedings and appoint an examiner or panel of examiners to determine the competency of the defendant. HRS § 704-404. The court is “bound to sua sponte convene a . . . hearing if it itself has or is presented with rational basis for believing that the physical or mental defect of a defendant will become an issue on the question of fitness or responsibility.” State v. Castro, 93 Hawaii 454, 462, 5 P.3d 444, 452 (App. 2000). In this case, the HSC held that it should have been apparent to the trial court that a mental disease, disorder, or defect raised the question of Harter’s competency. Her testimony at trial and statements to the court were disjointed and bizarre. Moreover, it appeared that her mental state deteriorated by the time of the sentencing hearing. She claimed, among other things, that this was a case of mistaken identity supported by evidence from her boyfriend’s dad and a Supreme Court justice. This duty, according to the HSC, is distinct from defense counsel’s duty to raise the issue. Here, the HSC held that the trial court abused its discretion in not ordering a mental fitness examination.

Monday, December 22, 2014

Trial Court Can’t Stop Lawyers from Asking Witnesses if they Lie

State v. Locken (ICA November 28, 2014)
Background. Andrew Locken was charged with assault in the second degree against Larsen Kaneda and assault in the third degree against Karinne Wong, Kaneda’s girlfriend. Locken lived with two brothers: Konrad and Hans Bruesehoff. The Bruesehoffs lived with Kaneda. This group and some others went out to Dave & Buster’s for about two hours. Outside D&B, Locken got into an argument with a “local guy” that escalated to a challenge to fight. Wong intervened and the group drove home. From there, the testimonies are dramatically different.

Kaneda and Wong testified for the prosecution. Their version was that once back at the Bruesehoff house, Wong asked Locken why he’d want to start a fight when Hans was disabled (he had a pacemaker and artificial discs in his back). Wong testified that less than six months before that night, Locken was in a similar incident in which Locken wanted to fight a “local guy” that had “falsecracked” Konrad. On that night, Wong asked if Locken would pick his pride over other people’s safety. Locken said he’d pick his pride and got aggressive with them. He challenged Hans to a fight. Locken was restrained by others there, but called out to Hans.

As Wong tired to calm Locken down, Locken grabbed Wong’s hair and kicked her in the thigh. Kaneda intervened and Locken started kicking him. He landed about three kicks on Kaneda. Eventually others intervened and Locken was subdued.

The defense called two witnesses who were there. They said that Wong and Hans were acting drunk and that Wong was pestering Locken. She was yelling hysterically at him and Locken told her to mind her own business. That was when Wong lunged at Locken and tried to scratch or strike him. Kaneda attempted to pull Wong away and Konrad pushed at Locken. Locken did not grab Wong and didn’t kick or strike Wong or Kaneda.

During the trial, Locken’s counsel attempted to cross-examine Kaneda about his statements to the examining doctor. During that cross-examination, Locken asked if Kaneda lied to the doctor. The prosecution objected on the grounds that it was argumentative and the objection was sustained. After a few more objections were sustained, Locken moved for a mistrial. During a bench conference, the circuit court explained that it believed that asking a witness if he or she was lying called for a legal conclusion of some kind that only the jury could determine. The circuit court later ruled that Locken could not ask any witnesses if they lied. The judge (Judge Ahn) said that such questioning was prohibited and “is just not done.”

The jury found Locken guilty of the lesser-included assault in the third degree against Kaneda and guilty as charged for Wong. The circuit court sentenced him to probation for a year. Locken appealed.

“Falsecracked” Konrad. Locken argued that Wong should have never been permitted to testify about the incident in which Locken wanted to fight a “local guy” that “falsecracked” Konrad. The ICA disagreed.

Evidence of prior bad acts are not admissible to show the character of a person, but may “be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.” HRE Rule 404(b). This list is not exhaustive. State v. Clark, 83 Hawaii 289, 300, 926 P.2d 194, 205 (1996). According to the ICA, the prior bad act was not to show a propensity, but rather to explain why Wong asked Locken about choosing between his pride and other people’s safety. It was “relevant to showing the context for the questions directed at Locken by Wong and Locken’s reaction to those comments.” The ICA held that it also showed why Wong questioned Locken in the first place. That was enough for the ICA to hold that the prior bad act was relevant and admissible under HRE Rule 404(b).

Witnesses Know when they’re Lying. The ICA did, however, hold that the circuit court erred in ruling that the defense could not ask a witness if he was lying. Such a question—you lied to so-and-so or “weren’t you lying just now?”—must be distinguished from asking them to comment on other witnesses’ veracity. See State v. Maluia, 107 Hawaii 20, 25, 108 P.3d 974, 979 (2005). Asking a witness if he is lying is different than asking them to comment on the veracity of another witness. Whether a witness was lying goes directly to the witness’s credibility and prohibiting the defense from asking such questions is erroneous.

However, because Locken was able to show that Kaneda’s statements to the police were inconsistent with his trial testimony, the ICA held that he had sufficiently attacked Kaneda’s credibility and that the circuit court’s erroneous ruling was not harmless.

Other Issues. The ICA rejected the other issues raised by Locken which pertained to the wording of the self-defense instruction and the circuit court’s refusal to allow Locken to recall a witness to ask him if he had seen Kaneda in a sling earlier in the evening. The judgment was affirmed.

Wednesday, December 10, 2014

Defective Complaint is Not a Jurisdictional Defect

State v. Kam (ICA November 26, 2014)
Background. Cierra Ann Kam was charged as a repeat offender of operating a vehicle while under the influence of an intoxicant and operating a vehicle after her license to drive was suspended or revoked for OUI. The complaint failed to allege the required mens rea for each count.

After the complaint was filed, the HSC handed down State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). The HSC held that the portion of the complaint alleging OUI by way of facts (HRS § 291E-61(a)(1)) required the “intentionally, knowingly, or recklessly” mens rea. Id. at 54, 56, 61, 276 P.3d at 623, 625, 630.

In the wake of Nesmith, the prosecution moved to amend the complaint. Kam opposed on the grounds that the defect in charging the complaint was a jurisdictional one that required dismissal of the case all together. The district court granted the motion and the amended complaint was served on Kam. Kam acknowledged receipt and pleaded not guilty. Kam was found guilty after a stipulated facts trial and Kam appealed.

Footnote Schmootnote. Kam argued that the district court erred in granting the motion to amend. Kam depends on a footnote from the HSC in an unpublished summary disposition order from State v. Castro:

The State has proposed amending pending HRS § 291E-61(a)(1) charges pursuant to Hawaii Rules of Penal Procedure Rule 7(f)(1) post-Nesmith, but Nesmith makes it clear that the remedy for the deficient HRS § 291E-61(a)(1) charges is dismissal without prejudice.

The ICA disagreed and ignored the footnote.

Unpublished Decisions Carry no Precedential Weight. “Memorandum opinions and unpublished dispositional orders are not precedent[.]” Hawaii Rules of Appellate Procedure Rule 35(c)(2). Thus, the footnote was not controlling for the ICA and it was free to decide the case without consideration of the footnote.

So Is it Jurisdictional? The ICA also noted that the Castro footnote was undermined by a more recent published case from the HSC. State v. Davis, 133 Hawaii 102, 324 P.3d 912 (2014). In that case, according to the ICA, the HSC found the charge defective, but instead of ordering dismissal without prejudice, the HSC addressed Davis’s claim of insufficient evidence. Id. at 120, 324 P.3d at 930. According to the ICA, logic suggests that in order to do such a thing, the defect is not a jurisdictional one.

HRPP Rule 7 Applies over the Footnote. Instead of relying on the Castro footnote, the ICA held that the district court was free to apply HRPP Rule 7(f)(1), which affords the court discretion to allow the prosecution to amend charges before trial so long as “substantial rights of the defendant are not prejudiced.” Kam did not claim prejudice for failing to allege mens rea.

Sufficient Evidence Established to Uphold the Repeat Offender Provision. The ICA moved on to hold that even though no certified judgments were used to prove the prior conviction, none were required. The traffic abstracts were sufficient for the ICA.

What if there was No Challenge to Sufficient Evidence? In State v. Davis, the HSC held that Hawaii’s double jeopardy clause requires the appellate court “to address a defendants express claim of insufficiency of the evidence prior to remanding for a new trial based on a defective charge.” The HSC was concerned about cases getting retried when there had been insufficient evidence to convict in the first place. Such a situation would violate the Double Jeopardy Clause under the Hawaii Constitution.

From that case, the ICA here has extrapolated that the defect in the charge is not a jurisdictional defect requiring prompt remand and dismissal. Perhaps.

But what would happen if you had a defective charge, but sufficient evidence to convict? Shouldn’t the remedy be remand for dismissal and the opportunity for the prosecution to recharge? And in such a situation, the prosecution could then properly charge the defendant? Or would the prosecution simply move to amend the charging document once it is remanded to the trial court? Is that the proper remedy? In light of this case, it would seem so.

Tuesday, December 9, 2014

Right to Attend your Trial is not Invitation to Flee

State v. Vaimili (ICA November 12, 2014)
Background. Joseph Vaimili had been charged of kidnapping, terroristic threatening in the first degree, promoting prostitution in the first degree, and using or carrying a firearm while in the commission of a felony. Vaimili was released on bail. He appeared at some pretrial matters and at the selection of his jury. On the day the jury was supposed to be sworn in and trial to get started, Vaimili did show up in court. The trial court granted two continuances and he still did not show up. The prosecution filed a memorandum asserting that Vaimili left the islands and that sheriffs and police were actively searching for him on Oahu. Finally, about a month after the jury had been selected, the court proceeded with his trial in absentia. The jury found Vaimili guilty as charged. He was later found in Texas more than a year after the verdict, brought back to Hawaii, and sentenced to prison for 40 years. He appealed.

Disjunctive Charging as Alternative Means to a Single Offense is A-O.K. The charging instrument must inform the accused about “the nature and cause of the accusation.” Haw. Const. Art. I, Sec .14. It must “sufficiently apprise the defendant of what he or she must be prepared to meet to defend against the charges.” State v. Codiamat, 131 Hawaii 220, 223, 317 P.3d 664, 667 (2013).

Here’s the amended complaint:

Count I: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did intentionally or knowingly restrain [the CW], with intent to terrorize her or a third person, thereby committing the offense of Kidnapping . . . .
. . . .
Count II: On or about the 21st day of February, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI, did intentionally or knowingly restrain [the CW], with intent to inflict bodily injury upon her or subject her to a sexual offense, thereby committing the offense of kidnapping . . . .
. . . .
Count III: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI threatened, by word or conduct, to cause bodily injury to [the CW], with the use of a dangerous instrument, to wit, an instrument that falls within the scope of Section 706-660.1 of the [HRS], with the intent to terrorize, or in reckless disregard of the risk of terrorizing [the CW], thereby committing the offense of Terroristic Threatening in the First Degree . . . .
. . . .
Count IV: On or about the 18th day of February, 2009, to and including the 3rd day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly advance prostitution by compelling [the CW] by force, threat, or intimidation to engage in prostitution, or did knowingly profit from such coercive conduct by another, thereby committing the offense of Promoting Prostitution in the First Degree . . . .
. . . .
Count V: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly carry on his person or have within his immediate control or did intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, to wit, Kidnapping and/or any included felony offense of Kidnapping, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Carrying or Use of a Firearm in the Commission of a Separate Felony . . ., if he intentionally or knowingly restrain[ed] [the CW] with the intent to terrorize her or a third person.

Vaimili argued that this charging document was defective because it used the disjunctive throughout each of the counts. ICA disagreed. Using the disjunctive “may be appropriate when it provides notice to the defendant that the State may attempt to prove guilt by showing that the defendant committed any one of multiple related acts. This alerts the defendant that he or she must be prepared to defend against each of the charged alternatives.” Codiamat, 131 Hawaii at 226, 317 P.3d at 670. States of mind can be charged disjunctively. Id. at 227, 317 P.3d at 671. When the defendant is charged “under a single subsection of a statute, the charge may be worded disjunctively in the language of the statute as long as the acts charged are reasonably related so that the charge provides sufficient notice to the defendant.” Id.

Here, the ICA held that the use of the disjunctive in the counts against Vaimili was constitutionally sound. According to the ICA, the disjunctive were alternative means to prove the single offense. “For example, if an offense can be committed by alternative means A or B, the State can establish the defendant’s guilt by proving either means A or means B.” That, according to the ICA, provides fair notice that is constitutionally permissible.

Standing Trial without the Accused. When the offense is not capital and when the accused is not in custody, “the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” Diaz v. United States, 223 U.S. 442, 445 (1912).

A more recent articulation of the rule comes from Hawaii Rules of Penal Procedure (HRPP) Rule 43:
The further progress of a pretrial evidentiary hearing or of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present, . . . is voluntarily absent after the hearing or trial has commenced . . . .

“Trial has Commenced” at the Start of Jury Selection. The first issue, according to the ICA, was determining when “trial has commenced.” As a matter of first impression, the ICA held that trial has commenced when the court begins the jury selection process. The court arrived to that decision based on the language of the rule and noted how it is almost identical to the Federal Rules of Criminal Procedure. And so, the federal interpretation of their rules would be “persuasive” and “appropriate.” State v. Toguchi, 9 Haw. App. 466, 467, 845 P.2d 557, 558 (1993); State v. Caraballo, 62 Hawaii 309, 322 n. 12, 615 P.2d 91, 99 n. 12 (1980). Federal courts have held that jury selection marks the start of a trial. United States v. Alikpo, 944 F.2d 206, 209-10 (5th Cir. 1991); United States v. Bradford, 237 F.3d 1306, 1309-10 (11th Cir. 2001). At the same time, however, this is not the same triggering point for Double Jeopardy. Id. And so, the ICA held that Vaimili’s trial had “commenced” once the jury was selected and while he was in court.

No Contact with Lawyer and Bail Bond Company for Nearly a Month is “Voluntarily Absent.” Having held that trial had commenced, the next question was whether Vaimili had “voluntarily absent[ed]” himself by failing to appear once jury had been selected. The ICA held that the record provided compelling evidence that Vaimili had absconded. He was in the courtroom when the court told jurors when the trial would resume. He did not show. His lawyer told the court that he had lost contact with him. There was no explanation for the failure to appear. The court continued the case for five days.

When they appeared again, his whereabouts were still unknown. His lawyer didn’t know where he was and his bail bond company couldn’t find him. The court continued the trial for another 22 days and his whereabouts were still unknown. The bail bond company still couldn’t find him and informed the court that it was looking for him on the mainland. That, according to the ICA, was sufficient evidence to show that Vaimili was voluntarily absent from the trial.

Proceeding in Absentia is not an Abuse of Discretion? The final issue was whether the trial proceeding should have continued without Vaimili. Vaimili relied on State v. Okamura, 58 Haw. 425, 570 P.2d 848 (1977). There, the defendant, then in custody, went to the bathroom, but jumped out of a window and hurt himself. The trial court refused to stop the proceedings for the day and demanded his return (even though he was in the hospital being treated for his injuries).

The decision to proceed without the voluntarily absented defendant “lies in only a narrow discretion given to the trial judge” in which the judge must “weigh the competing interests at stake.” Id. at 429, 570 P.2d at 852. The court must carefully balance the defendant’s “right to confront his accusers, and other possible prejudice which might result from his absence, . . . against the time and expense caused by defendant’s effort to defeat the proceedings by his departure or flight.” Id. Moreover, “the narrow discretion given to the trial judge to proceed with trial should be exercised only when the public interest clearly outweighs that of the absent defendant.” Id. at 430, 570 P.2d at 852.

The ICA noted that the balancing test in Okamura is required even after the court concludes that the accused voluntarily absented himself or herself. But after Okamura, the HSC in Caraballo did not apply the balancing test. In Caraballo, the defendant walked out of his trial while he was on bail.

Despite the legal question, the ICA held that even if the Okamura balancing test did apply, there was enough in front of the trial judge to proceed without Vaimili. It was clear from the record that Vaimili was gone and not likely to return soon. Trials cannot be postponed indefinitely and the public interest in proceeding clearly outweighed Vaimili’s interests. The ICA affirmed the judgment.

Another Distinct Absence. This case suggests that there has been no further discussion after Caraballo. But what about State v. Kaulia? There, the HSC held that the trial court abused its discretion in proceeding with trial after the defendant got up and announced that he was walking out of the courtroom. The HSC held that a colloquy was required. Can this case be squared with Kaulia? Possibly. How should we read that case with this one?

Monday, October 13, 2014

Solicitation Requires Proof of Request or Demand for Money

State v. Abel (HSC September 24, 2014)
Background. James Abel was charged with the city ordinance of solicitation with animals in Waikiki, a violation of ROH § 29-13.2(b). At trial, HPD Sergeant Stacey Christensen testified that one day she was “enforcing parking violations” in Waikiki. She saw Abel “with birds fronting the Outrigger standing on the sidewalk.” Abel was putting birds on people and taking pictures of them with their cameras and the people would give him money. She couldn’t make out what they were saying and could not discern how much money was given to Abel. Abel moved to acquit and argued that the elements had not been met because the prosecution could not prove solicitation. The motion was denied. Abel argued that there was still insufficient evidence to show solicitation, which is basically defined as a demand for gifts or money. During his closing, Abel argued that “[m]erely extending the gesture of placing birds on someone and taking a photo is just an extension of the aloha spirit. It’s not meant to . . . be a solicitation.” Abel was found guilty and sentenced to a fine of $300 and a court fee of $30. Abel appealed, and the ICA affirmed. Abel petitioned for cert.

 Breaking Down a Criminal Offense. “The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct as: (a) Are specified by the definition of the offense, and (b) Negative a defense[.]” HRS § 702-205. In this case, Abel was prosecuted for violating ROH § 29-13.2(b):

In the Waikiki special district, no person shall use any live animal in furtherance of any solicitation on any public property . . .
. . . .
(b) The person conducting the solicitation shall not place the animal on or otherwise transfer the animal to any other person.

Id. The HSC broke this ordinance down into the following elements: (1) a solicitation, (2) use of a live animal in furtherance of the solicitation, (3) a transferring of the animal by the person conducting the solicitation onto another person, and (4) the occurrence of the solicitation on public property in the Waikiki Special District. Id. “Solicitation” means “to request or demand money or gifts.” ROH § 29-13.1.

Solicitation Requires Proof of a Demand or Request. The crux of this case came down to interpreting the word “solicitation.” The HSC noted that even though the language of the ordinance—to request or demand money or gifts—is straightforward, it was still free to look elsewhere to ascertain its meaning. The HSC explained that “the plain language rule of statutory construction . . . does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review.” Keliipuleole v. Wilson, 85 Hawaii 217, 227, 941 P.2d 300, 304 (1997). One place to look would be the legislative history in order to “discern the underlying policy [that] the legislature sought to promulgate.” State v. McKnight, 131 Hawaii 379, 388, 319 P.3d 293, 307 (2013). When the court cannot glean the policy through legislative history, the court could be unable to determine if the literal construction would produce an absurd or unjust result. Keliipuleole, 85 Hawaii at 221, 941 P.2d at 304.

Luckily, there was plenty of evidence for the HSC to ascertain the policy underlying this ordinance. In the end, the HSC noted that the City Council passed this ordinance to regulate those requesting or demanding money from tourists in exchange for using animals. It was not designed to prevent folks from displaying and presenting animals to tourists or even prevent them from having tourists snap pictures with them.

Witnessing a Transaction is Not Enough to Prove “Solicitation.” Turning to this case, the HSC noted that there was only evidence of people paying Abel after he took a picture of them with parrots on them. The prosecution, however, has to prove a demand or request for money or gifts. No such demand was proven. According to the HSC, “Sgt. Christensen did not hear any conversations between Abel and other individuals, or overhear any statement or comment regarding a fee. There was no evidence that Abel had a sign requesting money or a tip jar on the public sidewalk that would imply money was expected. Likewise, there was no evidence that Abel made any hand or head gestures indicating a request for money.” And so, the conviction was reversed for lack of evidence.

Proving a Demand or Request. The HSC has drawn a very fine line. Folks standing around with birds in Waikiki can put their birds on tourists and let them take pictures with them so long as they don’t “request or demand” money or gifts. That means you can’t ask, put your hand out, or even have a tip jar “that would imply money was expected.” What about a “DONATIONS WELCOMED, (BUT NOT REQUESTED)” sign? Surely that’s not a demand, but perhaps it’s more of a request. So what if the sign said “DONATIONS WELCOMED (BUT NOT REQUESTED)”? Perhaps at that point a birdman would be tempting fate. What about a jar full of dollar bills and no sign at all? Would that “imply money was expected?” At least these guys are happy for now.