Thursday, May 12, 2016

Sometimes “Reasonable Removal” means no Removal at all.

State v. Bowman (HSC May 9, 2016)
Background. One afternoon, Officer Romeo Fuiava was driving along the Hawaii Belt Road near Paauilo on the Big Island in the Hilo-bound direction. He saw a green flatbed truck driving in the opposite lane with containers filled with lettuce or cabbage. About half a mile down the road he saw cabbage or lettuce leaves on the highway and on the side of the road. There were no other vehicles with cabbage or lettuce. Officer Fuiava turned around, caught up with the truck and pulled him over. The driver was Max Bowman. Officer Fuiava cited Bowman with HRS § 291C-131, spilling a load on highways.

Bowman went to trial in the district court. At trial, the prosecution called Officer Fuiava, who testified about his observations. Bowman, appearing pro se, testified to the court that he was a farmer carrying agricultural products from the field during harvesting. He admitted that at some point, the cabbage spilled onto the highway. “It was trimmings. I actually drove past that section of the road later in the day, did not see any of it. I can only imagine the wind blew it off the road to decompose in a matter of days on the side, or it had been run over sufficiently and evaporated on the road.” He argued that it was unreasonable for him to go back and get the leaves off the road. “I feel risk of life and limb, running onto the road, grabbing three or four leaves of cabbage as opposed to letting it decompose naturally does not sound reasonable to me.”

The district court ruled for the prosecution. In convicting Bowman, the court noted that had he gone back and picked up the leaves, he would have been acquitted. The district court fined Bowman $250 and a $7 court fee. Bowman appealed to the ICA. The ICA affirmed. He petitioned to the HSC.

The Curious Offense of Spilling a Load onto the Highway. In our traffic code, it is a violation to spill loads on highways:

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

HRS § 291C-131.

The offense is stated in (a), but there is a defense in paragraph (c). According to the HSC, this defense is comprised of four parts: (1) vehicle carrying agricultural products, (2) from fields, (3) during harvesting, and (4) the owner of the vehicle must provide for the reasonable removal of all such produce spilled or dropped on the highway. This is a non-affirmative defense.

The Burden of Production Requires Some Proof of Each and Every Part of the Defense. The HSC rejected Bowman’s argument that he needed to present some of the four parts. The burden of production is the minimum the defendant must show before the burden shifts to the prosecution to disprove the non-affirmative defense. The defendant need only produce some evidence of the defense, “no matter how weak or inconclusive” to meet the burden. State v. Stocker, 90 Hawaii 85, 976 P.2d 329 (1999). However, the HSC held that even though the quantity of evidence is low, the defendant still has to show each and every part of the defense before the burden shifts to the prosecution.

Determining a “Reasonable Removal.” Fortunately for Bowman, that wasn’t the end of the inquiry. The HSC examined the parts of the defense. The difficulty is whether he engaged in the “reasonable removal” of the produce without going back and picking up the cabbage.

In interpreting the HRS § 291C-131(c), the HSC examined its legislative history. The removal of produce must be reasonable. The HSC agreed with Bowman that going back onto the highway and risk “life and limb” for a few cabbage leaves is unreasonable. The purpose of the statute was to penalize those trucks that spilled loads onto highways making the highway unsafe for others. Subsection (c) was designed to help the sugar industry. S. Stand. Comm. Rep. No. 308, in 1977 Sen. Journal, at 986-987. Cane haulers often spilled cane stalks onto the road, but so long as the sugar company provided some reasonable removal of these stalks, they would be exempt from liability under the statute.

In this case, Bowman’s cabbage are nothing like cane stalks. “And while it would be reasonable to remove sugar cane stalks from a highway in order to prevent an accident or vehicle damage, it might not be reasonable to remove cabbage trimmings, especially if the attempted removal is on a busy highway and is itself risky for both the person attempting the removal and the motorists driving on the highway.” The HSC held that “reasonable removal” means removal of spilled produce is only necessary when it is reasonable do to so. Based on that interpretation, the HSC held that Bowman met his burden of production.

The Prosecution didn’t Meet its Burden of Proof. Having held that Bowman met his burden of production, the prosecution was then required to disprove beyond a reasonable doubt that the defense was not met. It failed. The HSC, therefore, reversed the judgment and held that Bowman was entitled to a refund of the fine and fees.


Editor’s Note. In the interest of full disclosure, I was the attorney for Mr. Bowman in his application for writ of certiorari to the HSC.

Tightening the Reins on Expert Testimony

State v. Kony (HSC May 4, 2016)
Background. Last Kony as indicted with various charges of sexual assault in the first degree and sexual assault in the third degree. The complainant was a minor at the time of the alleged offense. The CW was living in the home and was fifteen years old. Kony was the boyfriend of the CW’s half-sister and father of two children in the home.

Before trial, Kony moved to exclude the testimony of Dr. Alexander Jay Bivens on the grounds that his testimony would be irrelevant and, if relevant, its probative value would be substantially outweighed by the danger of unfair prejudice in violation of HRE Rule 403. At the hearing on the motion, the prosecution responded that Dr. Bivens’ testimony was needed to explain to the jury why the CW’s reporting of the alleged assaults was delayed. The prosecution asserted that it would limit Dr. Bivens to the factors that would hypothetically lead to delayed reporting. The circuit court denied the motion and would allow Dr. Bivens to testify. The court warned defense counsel that if there were objectionable questions, counsel should object and the court would rule “question by question” on the objections.

At trial, the CW testified about various sexual acts she endured by Kony. She testified that she did not report these acts nearly three months later. Dr. Bivens also testified as an expert witness.

Dr. Bivens testified as an expert in clinical psychology “with an emphasis on the dynamics of child sexual abuse.” He did not have any personal knowledge about the case. He testified that in general, most child sexual abuse occurs within the home. He also used percentages. He testified that “54 percent of offenses occur in the molester’s home, and, um, . . . 45 percent say, occur in the child’s home.” He also testified that “85 percent of sexual abuse victims have a pre-existing non-sexual relationship with their molester.” He added that “over 95 percent of sexual crimes are committed by males. . . . Perpetrators are typically male.”

He also explained why many victims of sexual abuse do not talk about it until much later. He added that “about 33 percent of children who tell will tell their mother. About a same number of children, 32 percent or so, will tell a close friend and usually in their teenage years[.]” Dr. Bivens even had percentages on the reasons why victims did not disclose until much later. Counsel did not object to this testimony.

Kony was found guilty as charged and sentenced to twenty years prison. Kony appealed and the ICA affirmed. Judge Reifurth concurred would have found Dr. Bivens’ testimony inadmissible if Kony’s counsel had objected. Kony petitioned to the HSC.

Dr. Bivens’ Testimony is Relevant. Expert opinion is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” HRE Rule 702. Sexual abuse of children, according to the HSC, “is a particularly mysterious phenomenon.” State v. Batangan, 71 Haw. 552, 557, 799 P.2d 48, 51 (1990). Experts have been used in such cases to explain “the unique interpersonal dynamics involved in prosecution for intrafamily child sexual abuse” and can correct “widely held misconceptions” surrounding it. Id. at 557-558, 799 P.2d at 52. Expert testimony can explain a pattern of behavior like delayed reporting. Id. at 557, 799 P.2d at 52.

Here, Dr. Bivens testified about delayed reporting by children. The HSC rejected Kony’s argument that there was no need for expert opinion about this. This case was one that involved a delay in reporting of nearly three months. Thus, according to the HSC, Dr. Bivens’ testimony was relevant.

Object! Object! Object! The HSC next reviewed the rest of Kony’s contentions on appeal. Kony argued that the rest of Dr. Bivens’ testimony should have never been presented to the jury. The testimony profiled Kony as a sex offender and his use of statistics were misleading and highly prejudicial. Kony argued that he preserved the argument by filing the motion in limine and objecting to any and all of Dr. Bivens’ testimony. The HSC disagreed.

At the motion in limine, the circuit court specifically limited the argument to the issue of delayed reporting. The trial court instructed counsel to raise objections at trial and it would rule “question by question.” At trial, counsel did not object to the profiling or to the use of statistics. When counsel did object—on other questions—the trial court reiterated that it would rule question by question and encouraged objections that counsel saw fit. And so, the HSC held that the arguments were not preserved for appellate review.

How to NOT Preserve an Issue on Appeal . . .
The HSC took pains to explain the exact specifics surrounding the lost appellate issue:

Under the specific circumstances of this case, where the defendant moved in limine to entirely exclude an expert from testifying but the evidence that the prosecution stated it intended to elicit was admissible, the defendant was specifically instructed by the court to object during the course of the trial to objectionable testimony, and the defendant did not properly object, the requirements of HRE Rule 103 were not fulfilled.

It seems like a lot of moving parts. It suggests that if the trial court did not instruct the party to object at trial, there might have been preservation. Perhaps this is a way for the HSC to later distinguish this case from another case in the future in which the issue is actually preserved. But then again, why risk it? Why not object? Maybe next time.

The Use of Statistics were Erroneous. Despite the lost issue, a majority of the justices went ahead and examined the legitimacy of Dr. Bivens’ profiling and use of statistics in order to provide guidance. It tackled Dr. Bivens’ statistics.  The HSC cautioned that just because the expert testimony may be relevant, it can still be excluded on the grounds that it unduly prejudiced the defendant. State v. Batangan, 71 Haw. at 557-558, 799 P.2d at 51-52. In other words, trial courts still have to apply HRE Rule 403. When it comes to expert testimony, the danger of unfair prejudice is high and trial courts should “exercise[] more control over experts than over lay witnesses.” State v. Vliet, 95 Hawaii 94, 108, 19 P.3d 42 56 (2001).

Things get even trickier when the expert resorts to statistics. Relying on secondary sources like studies and federal courts, the HSC cautioned that statistics can undermine the reasonable doubt standard because it would look like evidence through expert testimony that a “defendant is more likely to be guilty because he or she may share characteristics or traits with discrete populations of offenders.”

If You’re Going to Use Statistics, You Gotta Present them Right. The HSC did not outright reject the use of statistics. Instead, it concluded that trial courts need to consider the way the statistics are presented. “Testimony that a percentage of offenders or victims have a particular characteristic may be misleading unless the percentage of all persons with the relevant characteristic that are offenders or victims is also stated. Thus, a statistic that 95 percent of burglaries are committed by persons within a certain economic group has the potential to be serious misleading without also stating the percentage of all persons within that economic group who commit burglaries.”

In this case, Dr. Bivens’ use of statistics were misleading. For example, Dr. Bivens testified that 95 percent of sexual abusers are male. This alone is misleading because it wrongly suggests that all males are likely to be sexual abusers. The actual percentage of all men who abuse children was never stated. Without that context, the testimony is misleading. It’s just too bad for Kony that there was no objection.


Chief Justice Recktenwald’s Concurrence. The CJ agreed that the issue was not preserved on appeal, but wrote separately because he would not have provided “guidance” and examined the use of statistics. Justice Nakayama joined.

Tuesday, April 26, 2016

The Strength of your Initial-Aggressor Evidence may Determine its Admissibility

State v. Williams (ICA February 29, 2016)
Background. Joshua Williams was indicted for attempted murder in the second degree. David Quindt. Williams and Quindt were friends. On the night of the incident, Quindt and Williams were supposed to meet and drive over to another friend’s house. Williams was late and Quindt was annoyed and felt disrespected for making him wait for Williams. When Williams showed up and got into the car they got into an argument. At one point, Williams hops in the backseat while Quindt kept driving. While Quindt was driving, Williams took a knife and stabbed him in the neck, face, and forearm. Quindt drove to the Waianae Mall Shopping Center and they both got out. Williams agreed to take Quindt to a nearby hospital. Police interrogated Williams, who lied at first and said that they had been attacked by three men at a beach. He changed his story later and said it was in self-defense.

Before trial, Williams filed notice of an intention to introduce evidence of Quindt’s “prior bad acts” pursuant to HRE Rule 404(b). Specifically Williams sought to introduce evidence that Quindt would “bully, berate, insult, criticize, and demean” Williams about his life choices and bragged about: doing “hard time” in California, learning to fight in jail, his knowledge of gangs and gang-bangers, getting away with murder because someone else to the rap, and getting off on the charge due to a technicality. The prosecution moved to exclude the evidence.

Just before opening statements, the circuit court held a hearing on the issue. Williams argued that the evidence went to Williams’ state of mind in support of the self-defense claim. The prosecution countered that Quindt had been exonerated for the California murder. The case was one of mistaken identity and another person later confessed to the murder. By that point, Quindt had been in prison for three and a half years. Williams argued that the statements by Quindt were nonetheless relevant for Williams’ state of mind.

The circuit court limited the 404(b) evidence. Williams was permitted to present statements that Quindt had been convicted of murder and that he learned how to fight in jail. It did not allow Williams to present statements about knowing gang-bangers, that he experienced violence while in jail, and that Quindt “got away” with murder because someone else took the rap for it or because of a technicality.

The jury found him guilty as charged and he was sentenced to life imprisonment with the possibility of parole. He appealed.

Raising Self-Defense. The use of force is a defense when the actor “believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.” HRS § 703-304(1). Using deadly force is limited to situations when the actor believes it’s necessary “to protect himself against death [or] serious bodily injury.” HRS § 703-304(2). In evaluating the self-defense claim, “evidence must be assessed from the standpoint of a reasonable person in the defendant’s position under the circumstances as the defendant subjectively believed them to be at the time he or she tried to defend himself or herself.” State v. Lubong, 77 Hawaii 429, 433, 886 P.2d 766, 770 (App. 1994).

Evidence of the First Aggressor . . . Apparently Needs to be Strong Evidence. Evidence of a person’s character or a trait of a person’s character is inadmissible to show that the person acted in conformity of that character or trait unless it is evidence “of a pertinent trait of character of the victim of the crime offered by an accused[.]” HRE Rule 404(a)(2). Williams argued on appeal that the circuit court erred in excluding his evidence about Quindt. The ICA, however, was not so sure.

According to the ICA, “it is questionable whether the proffered evidence was relevant to establishing that Quindt had a violent character under HRE Rule 404(a)(2).” There was nothing to substantiate Quindt’s purported (and hearsay) statements. This was significant for the ICA:

HRE Rule 404(a)(2) authorizes a defendant to introduce evidence of a victim’s pertinent character trait to prove action by the victim in conformity with that character trait. However, if the evidence offered to prove the victim’s character trait is weak, equivocal, or untrue, there is no reasonable basis to infer that the victim acted in conformity with the purported character trait.

In this case, there may have been statements about a murder, but it is undisputed that Quindt had been exonerated for the murder. According to the ICA, this shows that his statements about the murder did not show he had a violent character.

When did the Strength of Evidence Determine Relevancy? The ICA, without citing any direct authority, noted that evidence under HRE Rule 404(a)(2) has to be strong. If it is weak, equivocal, or untrue, then there is no basis to infer that the victim acted in conformity with the character trait. Is this true? Should the strength of the evidence deem it inadmissible? Why can’t the prosecution present evidence that the 404(a)(2) evidence is weak and leave it to the jury to assess?


Dodging 404(b). Evidence of “prior bad acts” are admissible to show something other than acting in conformity. HRE Rule 404(b). In this analysis, however, the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice. State v. Renon, 73 Haw. 23, 31-32, 828 P.2d 1266, 1270 (1992). The ICA did not fully examine this issue because it held that any errors here were harmless beyond a reasonable doubt. The ICA held that the sum and substance of the proffered evidence was presented to the jury.

Monday, February 15, 2016

ICA's Foray Into SFSTs

State v. Tsujimura (ICA January 27, 2016)
Background. Lester Tsujimura was charged with a single count of operating a vehicle while under the influence of an intoxicant in violation of HRS § 291E-61(a)(1). Officer Thomas Billins was on duty in his “blue and white” when he saw Tsujimura driving on the Moanalua Freeway. Tsujimura was operating an SUV on the far right lane when Officer Billins saw him swerve onto the fog line on the right. Then the SUV moved across the lane and straddled the white divider lane on the left side. Officer Billins saw Tsujimura do this “several times” before he pulled him over.

When he approached the SUV he saw Tsujimura as the operator of the vehicle and saw that he had “a very flush red face,” slurred speech, and red, watery eyes. He also smelled the odor of an alcoholic drink coming from his breath and vehicle. Officer Billins asked him to get out of the car to perform the Standardized Field Sobriety Tests (SFSTs). Tsujimura informed Billins that had an old ACL injury to his left knee and it was his bad knee. Officer Billins noted that Tsujimura was not “limping or anything like that” when he got out of the SUV.

At trial, Officer Billins testified that he administered the horizontal gaze nystagmus test and noticed that Tsujimura was swaying from left to right. The district court sustained objections for the admission of the HGN. During the walk-and-turn test, Tsujimura twice failed to maintain the initial heel-to-toe stance, stepped off the line five times, failed to walk in a heel-to-toe fashion on all steps, raised his arms contrary to the officer’s instructions, and in making his turn, stumbled backwards and had to raise his arms to keep balance. During the one-leg stand, Tsujimura was unable to keep his foot six inches above the ground, put his foot down on several occasions during the first ten seconds, did not raise his foot off the ground in the last ten seconds, did not follow the officer’s instructions to count after several prompts to start counting, and he did not maintain balance without keeping his hands at his side.

Tsujimura was found guilty as charged.

Alcohol Means Ethyl Alcohol, which Includes Beer and Wine (at least for DUI Purposes). The ICA rejected Tsujimura’s claims that the complaint was deficient because it did not fully define the term “alcohol” and that there was insufficient evidence showing that Tsujimura was under the influence of the intoxicant known as “alcohol.” According to the ICA, HRS Chapter 291E limits the definition of “alcohol” to that which is a product of distillation, such as distilled liquor, and does not include beer or wine, which is not produced through distillation. The ICA quickly dispensed with the argument by pointing out that “alcohol” includes ethyl alcohol, which includes beers and wines. HRS § 291E-1. The definition plainly includes the term “ethyl alcohol.” State v. Turping, 136 Hawaii 333, 337, 361 P.3d 1236, 1240 (2015). The ICA added that interpreting the term “alcohol” to exclude beer and wine in the DUI statute would lead to an absurd result. State v. McKnight, 131 Hawaii 379, 389-390, 319 P.3d 298, 308-309 (2013).

Not All Field Sobriety Tests were Created Equal. The ICA moved onto the next claims related to SFSTs. Foundational requirements for the HGN test is different than the other SFSTs. State v. Ferrer, 95 Hawaii 409, 425, 23 P.3d 744, 760 (App. 2001). The walk-and-turn and the one-leg stand are “psychomotor FSTs” that are “nonscientific in nature.” Id. at 427, 23 P.3d at 762. That means that the officer is like any other layperson who can testify about his or her observations when monitoring the FSTs. However, “an arresting officer may not, without a proper foundation laid, testify that, in his or her opinion, an arrestee ‘failed’ the FSTs.” Id.

In this case, no foundation was laid and Officer Billins’ testimony was that of a layperson: his observations of Tsujimura performing the test. He did not conclude if he had ‘failed’ them. Thus, it was not error in allowing this testimony.

Saying Nothing About an Old Injury is not Remaining Silent. Tsujimura contends that the prosecution wrongly commented on his silence when he got out of the SUV. Tsujimura later told the officer that he had a bad knee due to an ACL injury. The prosecutor asked the officer if Tsujimura said anything about his knee when he was trying to get out of the SUV. Over Tsujimura’s objection, the district court allowed the officer to testify that he said nothing as he was getting out of the vehicle.

The accused has a constitutional right to remain silent and the government may not use that silence against him at trial. State v. Mainaaupo, 117 Hawaii 235, 252, 178 P.3d 1, 18 (2008). It follows that a prosecutor cannot argue that by exercising one’s right to remain silent, the accused is guilty (i.e., an innocent person would not have remained silent). Id. at 253-255, 178 P.3d at 19-21. In assessing whether the prosecution impermissibly commented or elicited testimony relating to the defendant’s failure to testify or remain silent, the trial court must examine “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify” or remain silent. State v. Padilla, 57 Haw. 150, 158, 552 P.2d 357, 362 (1976); State v. Smith, 106 Hawaii 365, 375, 105 P.3d 242, 252 (App. 2004).

According to the ICA, the prosecutor’s questions did not comment on Tsujimura’s right to remain silent. Making no comment as he got out of the car was not in response to any questions. There is nothing in the record suggesting that Tsujimura was invoking his right to remain silent. Moreover, there is no attempt by the prosecution to imply that an innocent person in Tsujimura’s position would have said something.


The ICA affirmed the judgment.

When an Officer Says Don't Make a Statement, Don't

State v. Trinque (ICA January 29, 2016)
Background. Rick Trinque and Miles Martinez were indicted with commercial promotion of marijuana in the first degree and prohibited acts related to drug paraphernalia. The Kauai Police Department was investigating a marijuana grow operation somewhere in the Kilauea area. Officers heard about over 1,000 plants being grown in a pasture. One night, while the officers were conducting surveillance of the pasture, they came upon Trinque and Martinez. The officers arrested them. Trinque was handcuffed. They were in the pasture surrounded by tall grass and were trying to figure out how to get out of the pasture.

One of the officers asked Trinque how they got into the pasture. Trinque responded that they had a ladder next to a banana tree leaning up against a fence.

Once they got out of the pasture, Trinque was ordered to sit on a bench at a nearby house. An officer assigned to watch Trinque started talking to him. He told him that he worked on a case involving Trinque’s daughter. He assured Trinque that he wasn’t lying or trying to jerk his chain. He also reminded him not to say anything until he had been advised of his constitutional rights. Trinque responded by saying, “What for? You caught us red handed, there’s nothing left to say, times are hard and we needed the money.” The officer told him not to make anymore statements until they got to Lihue.

The police took Trinque to the police station in Lihue. After he was booked, Trinque was taken to an interview room. There he was advised of his Miranda rights using an advice-of-rights form. He was asked by the police if he would make a statement. Trinque said that he did not want to make a statement since he was caught “red-handed and was going to jail anyway.”

Trinque filed a motion to suppress all three statements (the one in the pasture, one on the bench, and one at the station). The motion was granted. The prosecution appealed the suppression of the statement on the bench and the statement at the station.

Miranda v. Arizona and all that. “No person shall . . . be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. See also U.S. Const. Am. V. In order to safeguard a defendant’s constitutional right against self-incrimination, officers must apprise the defendant of his or her constitutional right to remain silent and the right to counsel. Officers must also tell the defendant that anything he or she says can and will be used against him in court and that if he or she cannot afford an attorney, one would be provided free of charge. Finally, before a statement can be used in court as evidence, there must be proof that the defendant waived these rights. Miranda v. Arizona, 384 U.S. 436 (1966).

Miranda warnings and waiver, however, are only required by the police when a defendant is subjected to a custodial interrogation. State v. Paahana, 66 Haw. 499, 503-504, 666 P.2d 592, 596 (1983). In this case, there is no dispute that Trinque was in custody after he had been arrested and handcuffed in the pasture. The real question is whether the statements at issue were the product of an “interrogation.”

A Friendly Chat with the Defendant is not an “Interrogation.” “[T]he ultimate question becomes whether 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.” State v. Ketchum, 97 Hawaii 107, 119, 34 P.3d 1006, 1018 (2001). The ICA held that the interaction on the bench between the officer who knew Trinque’s daughter and Trinque was not an “interrogation” requiring a Miranda warning.

According to the ICA, “it is difficult to see how telling a defendant not to make a statement can constitute ‘interrogation.’” The ICA pointed out that the officer wasn’t trying to elicit an incriminating statement and that he told Trinque not to make a statement. Thus, according to the ICA, there was no basis for the trial court to suppress the statement.

The Third Statement at the Station is Not a Fruit of the Poisonous Tree. Having held that the statement at the bench was admissible, the ICA further held that the third statement at the police station was not a fruit of the poisonous tree. Under the FOPT doctrine, “the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police” is excluded. State v. Fukusaku, 85 Hawaii 462, 475, 946 P.2d 32, 45 (1997). A confession made after an inadmissible statement is not “automatically inadmissible.” State v. Joseph, 109 Hawaii 482, 499, 128 P.3d 795, 812 (2006).

The ICA independently examined the statement at the police station and held that it was not tainted by the first statement in the pasture and since the second statement was admissible, taint was irrelevant there.

Judge Ginoza’s Concurrence. Judge Ginoza wrote separately from the majority comprised of Chief Judge Nakamura and Judge Foley. Judge Ginoza took “a somewhat different view” about the interaction between the officer watching Trinque on the bench. Judge Ginoza agreed that because the officer told Trinque not to make a statement, it should not be considered the product of a custodial interrogation. However, Judge Ginoza wrote that absent the warning not to make a statement, the officer’s initiating of conversation with the Trinque makes it “foreseeable that in other circumstances, regardless of the intent of the officer, words or actions such as those by [the officer] could start to approach the line of interrogation.”

So what’s the Beef? The split in the ICA panel appears to center around the officers conduct. The majority seems to suggest that the intent of the officer is paramount and because the officer did not intend on getting an “incriminating statement” out of the suspect, it cannot be interrogation. Judge Ginoza’s concurrence is more nuanced. She agreed with the result: that in this case, the officer’s conduct was not likely to elicit an “incriminating” response. But she wrote separately to point out that the officer’s intent does not always determine an “interrogation.”


She’s got a point. An interrogation depends on whether the officer knew or should have known that they were “reasonably likely to elicit an incriminating response.” State v. Eli, 126 Hawaii 510, 522, 273 P.3d 1196, 1208 (2012). In other words, there’s an element of objective measurement. It is not always based on the subjective intents and beliefs of the officer. Moreover, the statement need not be “incriminating.” State v. Joseph, 109 Hawaii at 495, 128 P.3d at 808. So that would mean that an “interrogation” can arise when the officer should have known that his or her words or actions are reasonably likely to elicit any kind of response. Judge Ginoza didn’t dissent because she agreed with the result. Perhaps someday another case will compel (pun fully intended) to break ranks on this point.

Saturday, February 13, 2016

Making Sense of the Statute of Limitations "Defense"

State v. Abdon (HSC January 12, 2016)
Background. June-June Mas Abdon was indicted with the offense of sexual assault in the first degree by way of forcing his penis into the complainant’s vagina. It was alleged that the offense took place “[o]n or about the 1st day of June, 1997, to and including the 30th day of June, 1997.” The indictment alleged that the complainant was born on April 26, 1988, turned eighteen in 2006, and was still alive. The indictment was dated on April 24, 2012—two days after the complainant’s 24th birthday.

At trial, the complainant confirmed her birthday was on April 26, 1988. She identified Abdon as her uncle and testified that in June 1997, when she was nine years old, Abdon sexually assaulted her in a bedroom by touching her vagina with his hand and forcing his penis into her vagina. She did not report the incident until she was in college in 2010. Abdon testified and denied touching her inappropriately.

After the evidence, the parties discussed jury instructions. Abdon requested sexual assault in the third degree as a lesser-included offense (non-penetrating, but sexual contact). Over the objection of both the prosecution and Abdon, the court refused to give the instruction. Abdon was found guilty as charged.

During a post-trial meeting, the court instructed Abdon to file a motion for judgment on acquittal based on the statute of limitations. Abdon did so and argued that the prosecution failed to prove beyond a reasonable doubt. In the end, however, the court denied the motion. Abdon was sentenced to 20 years prison. He appealed. The ICA vacated the judgment n the grounds that the lesser-included offense should have been given. Abdon applied to the HSC, however, to review the denial of the motion for judgment of acquittal.

The Statute of Limitations “Defense.” In addition to the elements of the offense, the prosecution must also prove beyond a reasonable doubt “[f]acts establishing that the offense was committed within the time period specified in section 701-108.” HRS § 701-114. A class A felony must be initiated within six years of the offense. HRS § 701-108(2)(b). The statute of limitations, however, “does not run . . . [f]or any felony offense under chapter 707, part V or VI, during any time when the victim is alive and under eighteen years of age.” HRS § 701-108(6)(c). And so the six-year limitation doesn’t run unless and until the complainant is alive and is under eighteen. In other words, the prosecution has six years to initia08te proceedings after the complainant’s 18th birthday—which in this case would put us at April 26, 2012.

The prosecution “is commenced either when an indictment is found or a complaint filed, or when an arrest warrant or other process is issued.” HRS § 701-108(5). The true bill of the indictment here was dated April 24, 2012.

Proving Timeliness. But that’s not the issue. Abdon argued that the prosecution did not present this evidence to the jury. After all, the timeliness of the prosecution is one of the facts that must be proven beyond a reasonable doubt. HRS § 701-114(1)(e). Failure to prove that fact means that “innocence of the defendant is presumed.” HRS § 701-114(2). It is well-established that the prosecution bears the burden of proving that the prosecution was timely. State v. Stan’s Contracting, Inc., 111 Hawaii 17, 33, 137 P.3d 331, 347 (2006); State v. Iuli, 101 Hawaii 196, 207, 65 P.3d 143, 154 (2003); State v. Correa, 5 Haw. App. 644, 650, 706 P.2d 1321, 1325 (1985).

In this case, the prosecution presented evidence through the testimony of the complainant that the offense took place in June 1997, when the complainant was under the age of 18. It also showed when she was born and that she was alive. However, there was no evidence as to when the prosecution commenced—the issuance of the indictment.

Getting Around Waiver. The HSC held that Abdon did not waive the right to bring up the statute of limitations defense when it requested the lesser-included offense. The statute of limitations defense is waivable by the defendant. State v. Timoteo, 87 Hawaii 108, 114, 952 P.2d 865, 871 (1997). The HSC rejected the ICA’s conclusion that Abdon waived the statute of limitations defense by requesting an instruction for the lesser-included offense. According to the HSC, while it is true that requesting a lesser-included offense does indicate that the defendant agrees that he or she may be convicted of that offense, but that does not automatically mean that the defendant has waived the charged or greater offense.

Judicial Notice to the Rescue. At the post-verdict motion and again on appeal, the prosecution repeatedly requested that the courts take judicial notice that the indictment came down on April 24, 2012. The trial court refused.

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” HRE Rule 201. When a party requests judicial notice and supplies the necessary information, the court shall take judicial notice. HRE Rule 201(d). It is designed to “eliminate the necessity of taking the time of the court and the jury to make formal proof of fact which cannot be disputed.” State v. Moses, 102 Hawaii 449, 454, 77 P.3d 940, 945 (2003). “The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.” State v. Akana, 68 Haw. 164, 165, 706 P.2d 1300, 1302 (1985). Finally, judicial notice can be made at any time in the proceeding, even on appeal. HRE Rule 201(f).

In this case, the indictment was a pleading in this case. It is a court record from a source whose accuracy cannot reasonably be questioned. The prosecution requested judicial notice at the hearing on the motion for judgment of acquittal. According to the HSC, because it can be taken at any time, it took judicial notice on appeal and based on that, the prosecution met its burden that the prosecution was timely commenced and within the statute of limitations. On that basis, it affirmed the circuit court’s denial of the motion for judgment of acquittal.


The Puzzling Instructions Issue. The HSC went further and agreed that there should have been instruction to the jury about the issue of timeliness. According to the HSC, the jury should have been instructed that the prosecution had to prove beyond a reasonable doubt: (1) the date of the offense, (2) the complainant’s birth date or the date of her eighteenth birthday, (3) that the complainant, and (4) the date the indictment was found. The failure to provide such an instruction was indeed error, but given the fact that the HSC took judicial notice on appeal about the issuance of the indictment and finding no disputable issue, the failure to provide such an instruction was harmless beyond a reasonable doubt. See State v. Nichols, 111 Hawaii 327, 337, 141 P.3d 974, 984 (2006).

Rule 48 Doesn't Take a Sick Day

State v. Abregano (HSC December 11, 2015)
Background. Scott Abregano was charged with violating a protective order in which his wife was the petitioner. Trial was delayed for 30 days due to illness on the part of the trial judge. The judge commented that she could not proceed because she was “coming down with the flu bug.”  Because of the continuance, trial commenced fourteen days after the six-month mark in HRPP Rule 48. Abregano filed a motion to dismiss, but it was denied on the grounds that a sick judge was “good cause” excusing the delay.

At trial, Abregano’s wife testified that she obtained a protective order from the family court prohibiting Abregano from coming within 100 feet from her and his step-daughter or within 100 yards of the step-daughter’s school or home. She then testified that at the daughter’s softball game she saw Abregano and estimated that he was around 30 to 40 feet away from her (the wife). She called 911. The stepdaughter also testified that she saw Abregano at the game and got nervous. She estimated that he was closer than a football field away. After the prosecution rested, Abregano moved for a judgment of acquittal on the grounds that the protective order did not prohibit him from going to the school. The family court denied the motion and commented that the protective order need not mention the stepdaughter because “other protected persons stand in the same shoes as the petitioner in this case.” Abregano was found guilty and he appealed. The ICA affirmed.

Judge’s Illness may be “Good Cause.” “[T]he court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within six months: (1) from the date of arrest if bail is set or from the filing of the charge, whichever is sooner[.]” HRPP Rule 48(b). Not all time goes toward those six months. “[P]eriods that delay the commencement of trial and are caused by congestion of the trial docket when the congestion is attributable to exceptional circumstances” and “other periods of delay for good cause” are excluded. HRPP Rule 48(c).

“Good cause” is not defined, but it is designed to “take care of unanticipated circumstances.” State v. Gillis, 63 Haw. 285, 288, 626 P.2d 190, 192 (1981). Good cause must also be “a substantial reason that affords legal excuse.” State v. Senteno, 69 Haw. 363, 368, 742 P.2d 369, 373 (1987). The prosecutor’s increased workload is not “good cause.” State v. Hanawahine, 69 Haw. 630-631, 755 P.2d 466, 469-470 (1988). The HSC summarized the various examples that have come forward over the years and concluded that “a period is excusable as good cause under HRPP Rule 48(c)(8) if the events causing the delay are unanticipated and not reasonably foreseeable. The illness of a judge such that the court is unavailable is an unanticipated event. Although it may be foreseeable that judges will, on occasion, become ill, when this might happen is generally not reasonably foreseeable.” 

But Refusing to Replace the Sick Judge is Not. The HSC was careful to note that a sick judge may be “good cause” for some delay, but not always. In synthesizing cases from other jurisdictions, the HSC identified three factors to help determine if a sick judge and the period of delay constitutes “good cause.” Here are the factors it came up with:

               First, we must consider the reason for the delay and whether it was unanticipated and not reasonably foreseeable.
               Second, we must consider the period of absence due to the illness of the judge.
               Third, we must consider the efforts taken and stated on the record to find a replacement judge or reassign the case.
               Finally, we must consider the complexity of the case and whether it was such that it was not reasonable to ask an alternative judge to step in on short notice.

Applying these four factors, the HSC held that the delay was not “good cause.” Although the first factor may have been met, a four-week delay was too long, no effort was taken to find a substitute judge, and the case wasn’t that complicated. And so the family court erred in denying the motion to dismiss.

Commenting on Evidence. A majority of the HSC took issue on the trial court’s comments in front of the jury. Due Process demands a fair and impartial judge and a judge should not express opinions as to the merits of a case in front of a jury. State v. Silva, 78 Hawaii 115, 117, 118, 890 P.2d 702, 704, 705 (App. 1995) abrogated on other grounds in Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293 (1995). The HSC zeroed in during the prosecution’s questioning of the wife.

The prosecutor was asking Abregano’s wife when she got the protective order if the judge who issued the order told her that it included persons in addition to her. Abregano’s hearsay objections were sustained. The prosecutor was struggling with this point until the trial court asked if this was “covered on page 1 of Exhibit 1” (the protective order itself). The prosecutor answered in the affirmative. The trial court then suggested “[i]f you want to ask her who’s covered, I think you can publish that portion of the exhibit which is in evidence if you desire.”

Abregano argued that this was an improper comment on the evidence. The trial court “shall instruct the jury regarding the law applicable to the facts of the case, but shall not comment upon the evidence.”  HRE Rule 1102. It “precludes comment on the evidence in all cases, without limitation.” State v. Hauge, 103 Hawaii 38, 59, 79 P.3d 131, 152 (2003).

The HSC majority didn’t go that far though. It did not hold that this was an improper comment because the trial court was wrongly advocating a position. Instead, it delved deeply into the language of the protective order and pointed out that the trial court was wrong in suggesting that the protective order applied to the stepdaughter. And so the erroneous comment was not because the trial court was correct, but advocating for the prosecution. It was erroneous because the trial court was wrong on the law.


Chief Justice Recktenwald’s Dissent. The CJ agreed that there was a Rule 48 violation. The CJ wrote separately because he disagreed that the HSC should have examined the comment-on-the-evidence argument. He believed that there was no need to address it here and it should be played on out on remand. Justice Nakayama joined.