Wednesday, September 20, 2017

Taking the Surprise out of Sentencing

State v. Sanney (HSC Sept. 20, 2017)
Background. Yoshiro Sanney was indicted with one count of sexual assault in the second degree and attempted sexual assault in the second degree. Sanney was a homeless, unemployed veteran with a history of substance abuse and mental health issues. The offense arose when in broad daylight Sanney cut out the shorts of an unconscious homeless woman, performed cunnilingus and then attempted to have sexual intercourse with her. Prior to trial, Sanney’s attorney said that he would change his plea after learning that the judge was inclined to sentence him to probation with eighteen months jail. There were no agreements from the prosecution.

The circuit court held a change of plea hearing. At the hearing, Sanney made it clear on the record that his change of plea based on the court’s inclination for probation with up to 18 months jail. The circuit court, however, told Sanney that the inclination is not a promise and that the “inclination is only as good as the representations it is based on[.]” Sanney indicated that he understood. He pleaded guilty as charged. At sentencing, the circuit court stated that there were differences in the PSI report from the representations made. Sanney, however, argued that the differences were of little to no consequence when it came to the facts of the offense, but did not argue that he should have his plea withdrawn. The circuit court stated that it felt “tricked” and sentenced Sanney to prison for ten years.

Sanney moved for reconsideration of the sentence, but the motion was denied. He appealed to the ICA. The ICA affirmed. Sanney petitioned to the HSC and the HSC remanded to consider the merits of the motion for reconsideration. On remand, the motion was denied again. The ICA affirmed again and Sanney petitioned to the HSC.

The Sentencing Inclination v. the Plea Bargain. The HSC noted the difference between the sentencing inclination and the plea bargain based on California precedent. A plea bargain requires the defendant to plead guilty in exchange for some kind of benefit from the prosecution and the court approves it. People v. Clancey, 56 Cal. 4th 562, 299 P.3d 131 (2013). The sentencing “inclination,” however is more like an “indicated sentence” in which there are no agreements with the prosecution and the defendant pleads guilty “irrespective of whether guilt is adjudicated at trial or admitted by plea.” Id. See also HRPP Rule 11(f)(1).

The HSC adopted wholly California’s approach to “sentencing inclinations.”

First, absent unusual circumstances, a trial court should not provide a sentencing inclination unless plea negotiations have concluded or did not occur. Second, before giving a sentencing inclination, a trial court should consider whether the existing record concerning the defendant and the defendant’s offense(s) is adequate to make a reasoned and informed judgment as to the appropriate penalty. Third, a trial court must follow the established “principle forbidding a trial court from improperly considering the defendant’s exercise of his constitutional right to a . . . trial as an influential factor in determining the appropriate sentence.” In other words, the sentencing inclination must be the same punishment the court would be prepared to impose if the defendant were convicted after trial. Finally, a trial court may not bargain with the defendant over the sentence to be imposed, as a trial court’s sentencing inclination must be the same punishment the court would impose if the defendant were convicted following a trial.

The Bad News for Sanney. Because this was a new pronouncement of law, it was not applicable at the time of Sanney’s change of plea, sentencing, and post-judgment litigation. Thus, the only issue was whether it was an abuse of discretion. Given the state of the record and the problems posed by Sanney, the HSC affirmed and found no abuse of discretion in sentencing him to prison.

. . . the Good News for Everyone Else as of Now. The HSC applied this ruling prospectively. It added a twist to the inclination: “if a defendant pleads guilty or no contest in response to a court’s sentencing inclination, but the court later decides not to follow the inclination, then the court must so advise the defendant and provide the defendant with the opportunity to affirm or withdraw the plea of guilty or no contest.”


The Hybrid Situation. This case makes it clear that there’s a difference between inclined sentences—where the prosecution has no real say and has offered nothing and the defendant pleads as charged and asks the court for some kind of indication of a sentence—and the plea bargain, where the parties hash out an agreement. But what about the hybrid between the two? Often times, the parties reach an agreement where the defendant pleads to amended charge and some of the details of the sentence are agreed upon, but the prosecution is free to argue for certain things. What then? Can there be an inclination then? It makes sense that this procedure should be followed too. But that’s a different question for a different day.

Monday, September 11, 2017

Pre-Arrest Silence Requires Miranda Warnings

State v. Tsujimura (HSC May 31, 2017)
Background. Lester Tsujimura was charged with operating a vehicle while under the influence of an intoxicant. At trial, Officer Thomas Billins testified that he stopped Tsujimura on the Moanalua Freeway a little after midnight. He approached Tsujimura’s vehicle and asked him to get out of the car. Tsujimura complied. Officer Billins testified that he did not notice him having a hard time getting out of the vehicle. Before performing the field sobriety tests, Tsujimura told the officer that he had an old knee injury. According to Officer Billins, Tsujimura did not “pass” the tests. During trial, the prosecutor asked if Tsujimura told him anything about his knee as he got out of the vehicle. Tsujimura objected on the grounds that that was a comment on his right to remain silent. The trial court overruled the objection and allowed Officer Billins to testify that he said nothing about it. Tsujimura was found guilty as charged and the ICA affirmed.

Pre-Arrest Silence Cannot be Used by the Prosecution at Trial. No person shall “be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. The HSC held that the plain language of the constitutional provision protects “any person”—regardless of being arrested or accused—from being a witness against oneself. And so the HSC held that the right to remain silent attached here “at least the point when Tsujimura was detained as a result of the investigatory stop.” That meant that the prosecution could not use Tsujimura’s silence against him as he got out of the car.

The Open Question: Pre-Detained? The HSC held that in this case—where the defendant was stopped and seized by the police, but not arrested—the right to remain silent attached. In other words, a person may have the right to remain silent throughout the course of a traffic stop. But what if there was no seizure? What if there was no traffic stop and the officer simply asked a person to stop, and the person said nothing and kept walking? Could that be used against the person at trial? A refusal to comply with an order to stop? A refusal to answer questions from the officer? No one knows. The HSC pointed this out in a footnote that it was not dealing with such an issue because Tsujimura had been seized by the police and asked to get out of his car.


Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed with the majority that the right to remain silent “inures at least at the point at which a person has been seized” and that the prosecution cannot elicit evidence from that silence as evidence of the defendant’s guilt. Her disagreement lies in the application of these principles. The prosecutor at trial asked the investigating and later arresting officer if Tsujimura told him that he had trouble getting out of the car. This was not, in her view, an improper comment on the right to remain silent. Chief Judge Recktenwald joined.

Tuesday, July 25, 2017

Statements that were Never Raised at Trial Cannot be Presented during Argument

State v. McGhee (HSC June 21, 2017)
Background. Jamal McGhee was charged with terroristic threatening in the second degree. HRS § 707-717(1). McGhee waived his right to a jury trial. At trial, Edithe Kearney testified that she owns the Alley Cat club on Oahu. She testified it’s a small place and the club does not get loud. One day, McGhee came in at around 2:00 a.m. He was upset at an Alley Cat employee at the front door. She testified that McGhee was yelling, screaming, and threatening everyone in the bar. He was saying things like he can “kill me, can beat me up, that sort of thing.” Keaney felt threatened by these remarks and called the police because he would not calm down. The police showed up, but by then McGhee was gone. On cross-examination, Kearney testified that she wasn’t actually afraid of McGhee. “I mean, I’m almost 70. I’m not afraid to be—if he wants to kill me, kill me.” The district court denied McGhee’s motion for judgment of acquittal. McGhee testified that he went to the Alley Cat to meet his girlfriend. He stood outside the club and did not see Kearney at first because it was dark. He said that he avoided Kearney because she always called the police on him.

During rebuttal, the prosecutor argued that “although this wasn’t raised as evidence in this case,” it pointed to a written statement adopted by Kearney that verified she was afraid of McGhee. Defense counsel allowed the prosecutor to read it. The trial court found McGhee guilty and sentenced him to one year of probation. He appealed and the ICA affirmed, but Chief Judge Nakamura dissented.

Just to be Clear: this is the Scope of Closing Argument. The HSC took pains to clearly define the scope of closing arguments for the parties. The prosecutor (and defense counsel) may “draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence,” State v. Nofoa, 135 Hawaii 220, 228, 349 P.3d 327, 335 (2015). The parties are also free “to state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence.” State v. Quitog, 85 Hawaii 128, 145, 938 P.2d 559, 576 (1997). However, arguments “must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor's conduct.” State v. Rogan, 91 Hawaii 405, 413, 984 P.2d 1231, 1239 (1999). In other words, “[c]losing arguments are not the place to introduce new evidence outside the safeguards of the Hawaii Rules of Evidence.” State v. Basham, 132 Hawaii 97, 113, 319 P.3d 1105, 1121 (2014).

Presenting the Written Statement at Rebuttal was Improper. The HSC examined the reading of the written statement under this standard and it was apparent that it was not part of the evidence presented at trial. The statement—that Kearney was afraid of McGhee—could not have been inferred from the evidence at trial either.

The ICA Erred in Concluding the Statement was Irrelevant to Terroristic Threatening. The HSC also took on the ICA’s conclusion that the statement of being actually afraid of McGhee was irrelevant. Terroristic threatening means threatening “by words or conduct to cause bodily injury to another in reckless disregard of another.” HRS § 707-715. It also requires the “intent to terrorize or in reckless disregard of the risk of terrorizing, another person.” Id.
“Actual terrorization is not a material element although it is evidence of the occurrence of the material elements.” State v. Nakachi, 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987). The HSC took issue with the ICA’s conclusion that the written statement was irrelevant. Although it is not a material element, the evidence certainly is relevant to show threats with the intent to terrorize or in reckless disregard of the terrorizing. It could also be used as evidence of a “true threat.” See State v. Valdivia, 95 Hawaii 465, 476, 24 P.3d 661 ,672 (2001). And so, the ICA was wrong to conclude that the statement of fear was irrelevant.

The Improper Statement by the Prosecutor Warranted a new Trial. A prosecutor’s improper statements in a closing argument warrants a new trial when “there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Tuua, 125 Hawaii 10, 16, 250 P.3d 273, 279 (2011). Assessing whether an improper statement is harmless beyond a reasonable doubt hinges on three factors: (1) the nature of the conduct; (2) the promptness or lack of curative instruction; and (3) the strength or weakness of the evidence against defendant. Id. at 15-16, 250 P.3d at 278-279. The HSC applied all three factors.


First, the nature of the conduct weighed in favor of new trial. The prosecutor’s statement referred to evidence that was never presented at trial and during rebuttal argument—when there was no possibility that McGhee could respond. Second, the HSC noted that because this was not a jury trial—the lack of a curative instruction was inapposite. Instead, the HSC inquired if the trial court “disregarded or did not consider” the improper statement. There was no indication on the record if the trial court considered it or not and because it was impossible to determine, it weighs against harmlessness. Finally, the HSC noted that this case hinged on conflicting testimony between Kearney and McGhee. “In close cases involving the credibility of witnesses, particularly where there are no disinterested witnesses or other corroborating evidence, this court has been reluctant to hold improper statements harmless.” State v. Tuua, 125 Hawaii at 17, 250 P.3d at 280. This was such a case. Accordingly, the HSC vacated the judgment and remanded for new trial.

Monday, June 26, 2017

Confrontation Clause Trumps Prohibition of Immigration Status at Trial

State v. Acacio (HSC June 15, 2017)
Background. Rainier Acacio was charged with terroristic threatening in the first degree and abuse of a family or household member. The complainant was his ex-girlfriend. At his jury trial, his ex-girlfriend testified that they were living together for two and a half years before breaking up. She testified that she still lived with him even though they were no longer in a relationship.

She testified that on New Year’s Eve, they hosted a party. After the party, while she was right outside the house, she received a call from Acacio, who was inside the house. They exchanged New Year’s greetings and the call ended. The party ended and the complainant went to her room to get ready for bed. Acacio came into her room, closed the door, and said he wanted to fix the relationship. She said that it was over between them and Acacio got “mad and emotional.” Acacio said he was going to kill himself. The complainant said, “go ahead, it’s not my fault.” Acacio left and came back with a kitchen knife. He said that he “changed his mind,” pointed the knife at her, and said, “I will kill you.” The complainant knocked the knife out of Acacio’s hand. Acacio grabbed her face and punched her in the stomach. The complainant locked herself in the bathroom and called 911.

During the cross-examination of the complainant, Rainier’s attorney tried to bring up her knowledge of Rainier’s immigration status, that she knew he was not a citizen of the United States, and that if arrested, he could “sent back to the Philippines.” The prosecution objected and the circuit court sustained it. At later points in the trial, Rainier moved for a reconsideration of the ruling and asked that the complainant be recalled. The request was denied. Acacio testified. He admitted to bringing the knife into the room “to show her that I will kill myself,” but he never pointed it at her. He was found guilty and sentenced to probation. Acacio appealed and the ICA affirmed.

The Right to Confront your Accuser. “The accused’s right to demonstrate the bias or motive of prosecution witnesses is protected by the sixth amendment to the United States Constitution, which guarantees an accused, inter alia, the right to be confronted with witnesses against him or her.” State v. Balisbisana, 83 Hawaii 109, 115, 924 P.2d 1215, 1221 (1996). The main purpose of the confrontation clause is “to secure for the opponent the opportunity of cross-examination, . . . [and] the exposure of a witness’ motivation in testifying[.]” Id. Moreover, the credibility of any witness may be attacked with evidence of bias, interest, or motive. HRE Rule 609.1(a). Such evidence is always relevant. State v. Levell, 128 Hawaii 34, 40, 282 P.3d 576, 582 (2012).

For the HSC, determining a violation of the right to show bias or motive on the complainant is a two-step analysis. First, the court must determine if “the jury had sufficient information from which to make an informed appraisal of [the complainant’s] motives and bias[.]” State v. Balisbisana, 83 Hawaii at 116, 924 P.2d at 1222. Once that threshold issue is met, the court can consider if its probative value is outweighed by the danger of unfair prejudice. Here, the HSC held that the first step was never taken.

The Threshold Issue: Give ‘em a Chance to Show Bias or Motive. The trier of fact needs sufficient information to make an informed appraisal of the complainant’s motives and biases. The HSC assessed prior cases and held that “in order to satisfy the confrontation clause, a defendant must be given the opportunity to cross-examine a witness as to his or her bias or motive.” Here, the circuit court did not. Acacio wanted to show that the complainant knew or believed that if arrested for abuse or anything, he’d be deported and removed from her life in Hawaii. He’d be sent to the Philippines. Without this knowledge or belief, the jury was unable to make a meaningful appraisal of the complainant’s bias or motive. Accordingly, the first step was not met and Acacio’s confrontation rights were violated.

Even if it Wasn’t Violated, the Rule 403 Analysis is Wrong. To guide lower courts, the HSC took up the second step: even if the jury was afforded enough information to appraise the complainant’s bias or motives, the circuit court erred in its 403 balancing analysis. Relevant evidence may nonetheless be excluded when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” HRE Rule 403.

The HSC examined this issue and noted that although the defendant’s immigration or citizenship status is almost always irrelevant, that’s not the issue here. Acacio’s immigration status was wanted by the defense to show a bias and motive to undermine the credibility of the complainant. The circuit court erred in refusing to allow him present this evidence even though he suggested a limiting instruction. Thus, the circuit court erred in this respect too.


Nor was the Issue Harmless. Finally, the HSC addressed whether this deprivation was harmless beyond a reasonable doubt. Balisbisana, 83 Hawaii at 117, 924 P.2d at 1223. It was not. The HSC held there was a reasonable possibility that undermining the right to confront the complainant about her bias or motive to fabricate her testimony and get Acacio deported was not harmless beyond a reasonable doubt. She was the only eye witness. The case turned on the credibility of Acacio and her. Jurors needed to evaluate her credibility and presenting evidence of a motive to fabricate goes directly to that. Accordingly, it was not harmless. The case was remanded for new trial.

When Building Trust turns to Custodial Interrogation

State v. Trinque (HSC May 25, 2017)
Background. The Kauai Police Department got word of marijuana growing in a pasture in Kilauea. One night the officers were conducting surveillance when they found Rick Trinque and another in a pasture. They were arrested and handcuffed and sat on some rocks while KPD took pictures of them. As one of the officers escorted Trinque out of the pasture, one of them asked him how he got into the filed. He told them “he came over the fence by the banana tree using a ladder that was still located by the fence and that he was caught red handed.” Once out of the pasture, he sat on a bench handcuffed.

One of the vice officers was ordered to watch over Trinque. Lt. Richard Rosa was in plain clothes and had a badge around his neck. He had never met Trinque before. He identified himself to Trinque and told him that he was the officer that worked on his daughter’s case. (Trinque’s daughter went to the police and asked for their help because she believed that people were trying to assault her father.). Lt. Rosa said that if Trinque didn’t’ believe it, he could ask his daughter about it. Lt. Rosa added that “he would not lie to him” and that he was not going to “jerk his chain.” He told Trinque he would be “completely honest with him.” Trinque sat there listening and did not respond. Lt. Rosa told Trinque then said that Trinque should not to say anything until they got back to Lihue at the police station. Trinque responded: “What for? You caught us red handed, there’s nothing left to say, times are hard and we need the money.”

Once in Lihue, Lt. Rosa and other officers took Trinque to an interrogation room and advised him of his rights. Trinque told them that he wanted an attorney. Then they asked if he wanted to make a statement. He said he did not since “he got caught red-handed and was going to jail anyway.”

Trinque was indicted for commercial promotion of marijuana in the first degree and paraphernalia. HRS §§ 712-1249.4(1)(c) and 329-43.5(a). The prosecution filed a motion to determine the voluntariness of Trinque’s three statements: the one in the field; the one on the bench; and the one in Lihue. Trinque filed a motion to suppress the statements. The circuit court suppressed all three. The prosecution appealed and the ICA, in a published opinion, vacated the suppression order. Trinque petitioned for certiorari.

The Hawaii Constitution and Statements to the Police. “No person shall be . . . compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. This provision requires that before a defendant’s statements arising from a “custodial interrogation” are used at trial, Miranda warnings to the suspect must be given first. The unlawfulness in obtaining the first statement in the pasture is undisputed and the HSC examined the remaining two.

The Statement on the Bench: a Trust-Building Tactic is “Interrogation.” A statement made without Miranda warnings and waiver of them is not admissible at trial when the “statement was the result of (1) ‘interrogation’ that occurred while he or she was (2) ‘in custody.’” State v. Kazanas, 138 Hawaii 23, 35, 375 P.3d 1261, 1273 (2016).  There’s no question that when Trinque was cuffed and sitting on the bench being watched over by Lt. Rosa, he was in custody. The question is whether Lt. Rosa engaged in an “interrogation.”

Interrogation includes “not only . . . express questioning, but also . . . any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” State v. Joseph, 109 Hawaii 482, 495, 128 P.3d 795, 808 (2006). And so an “interrogation” is “any practice reasonably likely to invoke an incriminating response without regard to objective evidence of the intent of the police.” Id.

The HSC examined the circumstances surrounding this statement on the bench. Trinque had been arrested and handcuffed in the pasture, ordered to sit on a rock while they took pictures of him. Then they brought him out of the pasture and told him to sit on a bench. Lt. Rosa comes up to him and introduces himself. Then he tells him that he worked on his daughter’s case and that if he didn’t believe him, ask her about it. Lt. Rosa repeatedly offered personal assurances about his trustworthiness—he was going to be “completely honest with him” and that he “wouldn’t jerk his chain”—before telling him not to say anything before they get to Lihue.

According to the HSC, although introducing himself to the suspect would be a “normal procedure that typically attends arrests,” the rest of it was “an attempt to erode Trinque’s guard so that Trinque would freely talk in a manner that would incriminate himself.” There was no other reason to get Trinque to open up. By telling Trinque that he was assisting his daughter, Lt. Rosa appeared to offer Trinque some assistance as an ally in an otherwise adversarial position.

Moreover, at the hearing on the motion, Lt. Rosa testified that his words and conduct were to merely identify himself as a police officer because he was unshaven and in civilian clothes. The HSC noted that Lt. Rosa’s intent is not determinative when determining an “interrogation.”

. . . And he Misled the Suspect by Using the Word “Until.” The HSC additionally noted that Lt. Rosa misinformed Trinque about his constitutional rights. After giving assurances that the could be trusted, Lt. Rosa told Trinque not to say anything “until” they got back to Lihue. This gave Trinque the impression that he might as well talk now on the bench since making a statement was inevitable. After all, Trinque’s response was “what for?,” which suggested to the HSC that Trinque did not fully understand that he had the right to refuse any and all questions.

The Third Statement—the one at the Police Station—is a Fruit of the Poisonous Tree. The fruit of the poisonous tree (FOPT) doctrine “prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.” State v. Fukusaku, 85 Hawaii 462, 475, 946 P.2d 32, 45 (1997). The prosecution has the burden of showing an independent alternative to the illegality in order to use the evidence at trial. “In other words, the ultimate question that the fruit of the poisonous tree doctrine poses is as follows: Disregarding the prior illegality, would the police nevertheless have discovered the evidence?” State v. Poaipuni, 98 Hawaii 387, 393, 49 P.3d 353, 359 (2002).

The “Sufficiently Attenuated” Test? In this case, the question is whether the third statement at the Lihue station would have been said and obtained by the police had the police not violated Trinque’s rights in obtaining the first two. According to the HSC, whether a statement is sufficiently attenuated from the illegality depends on the facts of the case and relevant factors include: “(1) the temporal proximity between the official misconduct and the subsequently procured statement or evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” See State v. Eli, 126 Hawaii 510, 524, 273 P.3d 1196, 1210 (2012); State v. Mariano, 114 Hawaii 271, 281, 160 P.3d 1258, 1268 (App. 2007).


Here, the HSC upheld the circuit court’s ruling and held that the prosecution failed to meet its burden in showing that the subsequent statements were not fruits of the poisonous tree. It specifically failed to show that the third statement would have inevitably been uttered regardless of the first two; the fact that they do not refer to each other is not dispositive of showing attenuation; no intervening circumstances indicated that the taint of the first two statements had dissipated by the time the third one was uttered; the lapse in time and location was not dispositive; and finally, advising Trinque of his constitutional rights did not attenuate the unlawfulness. Thus, the final statement was a fruit.

Saturday, June 24, 2017

Statutory Exceptions are Defenses, not Elements but Tachibana Error Warrants new trial

State v. Castillon (ICA May 31, 2017)
Background. Michelle Helen Castillon was charged with driving without a license in violation of HRS § 286-102. At trial, the prosecution proved that Castillon did not have a valid Hawaii driver’s license on the day she was seen driving a car on a public road. There was no evidence that Castillon had been issued a valid driver’s license from Canada or Mexico. The district court convicted her and she appealed.

DWOL and its Exceptions. “No person . . . shall operate any category of motor vehicles . . . without first being appropriately examined and duly licensed as a qualified driver of that category of motor vehicles.” HRS § 286-102(a). There are exceptions for any person possessing a license “that is equivalent to a driver’s license issued in this State but was issued to the person in another state of the United States, the Commonwealth of Puerto Rico, United States Virgin Islands, American Samoa, Guam, a province of the Dominion of Canada, or the Commonwealth of the Northern Marianas” or “a valid commercial motor vehicle driver’s license issued” by any state in the United States, province of Canada, or Mexico. HRS § 286-105(3) and (4).

An Element or a Defense? The ICA rejected Castillon’s argument that these exceptions were essential elements to the offense that had to be proven at trial. Generally, when an exception is “embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case.” State v. Nobriga, 10 Haw. App. 353, 357-358, 873 P.2d 110, 112-113 (1994). But when the exception lies “peculiarly within the knowledge of the defendant, or the evidence concerning them is within the defendant’s private control,” or “when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense.” Id. The HSC applied this framework in State v. Lee, 90 Hawaii 130, 976 P.2d 444 (1999).

Here, the ICA held that the Canadian or Mexican driver’s license exception is not an element and is a defense to be established first by the defendant. The ICA reasoned that the exceptions come in an entirely separate statute and part of the traffic code. It also reasoned that “given the large number of statutory exceptions, and the relatively small number of drivers who would appear to qualify for the exceptions when compared to those who need a valid Hawaii driver’s license to drive, it would be absurd to require the prosecution to disprove all the possible exceptions in every case” of DWOL. The ICA also reasoned that this kind of knowledge—having a license from another country or from another state—is certainly within the knowledge of the defendant. Having established it was a defense and not an element, the ICA examined the record and noted that Castillon did not meet her burden of production in presenting any prima facie case that she would have a license from Canada or Mexico. Thus the burden of proof never shifted over to the prosecution to disprove the exception and “negative” the defense.

The Constitutional Problem with her Waiver of her Right to Testify. Castillon’s case, however, had a constitutional issue. After the State rested its case at trial, the trial court addressed Ms. Castillon and informed her about her right to testify. The colloquy was interrupted by defense counsel who informed the court that she did not want to testify. The district court said, “okay” and ended the inquiry.

The Due Process Clause in the Hawaii Constitution requires the trial court to engage in a true and personal colloquy with the defendant about his or her right to testify. Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293 (1995). The inquiry must be personally addressed to the defendant and the court cannot rely on the representations of counsel for this one. State v. Staley, 91 Hawaii 275, 287, 982 P.2d 904, 916 (1999). Thus, the ICA held that the district court did not obtain a constitutionally-sufficient waiver of Castillon’s right to testify in her own defense. Nor was the error harmless beyond a reasonable doubt. See State v. Hoang, 94 Hawaii 271, 279-280, 12 P.3d 371, 379-380 (App. 2000) (“it is inherently difficult, if not impossible, to divine what effect a violation of the defendant’s constitutional right to testify had on the outcome of any particular case.”). The ICA vacated the judgment and remanded for new trial.

The “Anticipatory” Search Warrant must have a “Triggering Event” (in Hawaii).

State v. Curtis (HSC May 15, 2017)
Background. A FedEx employee in Honolulu opened a package suspected to contain narcotics. The package was addressed to a “Jennifer Robertson” at an address on Kauai. FedEx notified the DEA, which notified the Kauai Police Department. KPD determined that the package contained eight pounds of marijuana. The police, with court approval, installed a tracking device in the package that would inform them where the package was located and when it would be opened. The police also applied for an anticipatory search warrant to search the premises.

In the application for search warrant, the police stated that it planned to conduct a controlled delivery of the package. Once it was determined where the package would be sent, received by persons wanting it, and opened, the police sought authorization to search within 48 hours of delivery of the package that premises—wherever that may be. The anticipatory search warrant was issued. The warrant authorized the police to search the premises “forthwith” and also allowed the police to search “within 10 days of” the date of the authorization.

That same day, KPD conducted a controlled delivery. A police officer posing as a FedEx delivery person delivered it at the address on the package. Jason Curtis received the package. The officer-deliveryman saw Melissa Hall in the house and asked if that was “Jennifer Robertson.” Curtis said it was and signed the package. Five minutes after delivery, the device indicated that the package had been opened. In response, the police went to the house and searched it. They seized the marijuana in the package, some paraphernalia in the house, and $1,000 cash. Curtis, Hall, and another person in the house, Genevieve Walker, were charged with commercial promoting of marijuana in the 2d degree, paraphernalia, and promoting a detrimental drug in the 2d degree.

Curtis and Hall moved to suppress the evidence obtained in the case on the grounds that the anticipatory warrant was unconstitutional. The circuit court denied the motion, but noted that the search warrant itself was “very, very sloppy and apparently hastily put together.” Curtis and Hall entered amended no-contest pleas reserving the right to appeal. They were fined $5,000. The charges against Walker with dismissed. Curtis and Hall appealed. The ICA affirmed. Curtis and Hall petitioned for cert.

The “Anticipatory” Search Warrant is not a Violation of the Fourth Amendment. In United States v. Grubbs, 547 U.S. 90 (2006), the Supreme Court of the United States observed that an anticipatory warrant is “a warrant based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” Id. at 94. An anticipatory warrant authorizes a search after a “triggering event,” i.e. after the occurrence of a specific future event, such as the delivery of a package. Id. Thus, it is issued before the necessary events happen and if that event does not happen, the warrant is void. State v. Scott, 87 Hawaii 80, 80 n. 1, 951 P.2d 1243, 1243 n. 1 (1998).

Law enforcement tried anticipatory search warrants in the 1990s in Scott, and even though the ICA initially recognized its constitutionality, the HSC quashed it on statutory grounds. The HSC held that HRS § 803-31 and HRPP Rule 41(a) prohibited anticipatory search warrants because HRS § 803-31 limited search warrants to searches of articles “in the possession of the person whose premises are to be searched.” Id. at 84, 951 P.2d at 1247. HRPP Rule 41 also limited search warrants to authorize intrusions “within the circuit wherein the property sought is located.” Id. In response to Scott, the legislature amended the statute and the rules were also amended to pave the way for anticipatory warrants.

Then came United States v. Grubbs, 547 U.S. 90 (2006). There, the Supreme Court of the United States held that anticipatory search warrants do not violate the Fourth Amendment. Id. at 94. It further held that the “triggering event” or condition need not be included in the warrant itself. Id. at 97.

. . . and, Starting Now, isn’t a Violation of the Hawaii Constitution. With that as a backdrop, the HSC examined if the anticipatory search warrant violated Haw. Const. Art. I, Sec. 7. It doesn’t. The HSC held that “anticipatory search warrants are valid under the Hawaii Constitution when supported by probable cause because they are consistent with the requirements of article I, section 7, and they incentivize police officers to obtain warrants prior to conducting searches.” The HSC first noted that nothing in the constitutional clause prohibits triggering events in the future. The warrant simply must be based on probable cause and have particularity to describe the place to be searched and property to be seized. State v. Woolsey, 71 Haw. 638, 640, 802 P.2d 478, 479 (1990). Second, the anticipatory warrant is no different than a regular-kine warrant conceptually: a neutral judge must determine “(1) that is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Grubbs, 547 U.S. at 96. Finally, an anticipatory warrant incentivizes police officers to get a warrant in the first place rather hope that a warrantless search meets some exception.

But Anticipatory Warrants in Hawaii need a Triggering Event Described in the Warrant Itself. Unlike the Fourth Amendment, the Hawaii Constitution has “a specific provision expressly establishing the right to privacy.”  State v. Mallan, 86 Hawaii 440, 448, 950 P.2d 178, 186 (1998). Moreover, Article 1, Section 7 prohibits unreasonable searches, seizures, and “invasions of privacy.” This means “that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary.” State v. Lopez, 78 Hawaii 443, 446, 896 P.2d 889, 901 (1995). Thus, the HSC held that in order to ensure the governmental intrusion is no greater than absolutely necessary, anticipatory search warrants must identify and contain the triggering event in the text of the search warrant itself.

And so—there being no triggering event in the warrant itself—the HSC vacated the ICA’s decision and remanded it back to Kauai for further proceedings.


A Hypothetical. What if Curtis and Hall signed the package, got super paranoid, drove out to Barking Sands and decided to open the package in their car? What if it was a party package and went out to someone else’s house to open it? Would the warrant be void? Would it authorize the police to search the car? Barking Sands? The party house? Now that anticipatory warrants are part of our legal landscape, you can expect this issue to come up some day.