Thursday, July 30, 2015

Prosecutor's Office can Represent the State in Bail Forfeiture Proceedings

State v. Miles (ICA June 23, 2015)
Background. Robert Miles was charged with felony offenses. His bail bond company, Exodus Bail Bonds, posted bail on his behalf in the amount of $5,000. Miles pleaded guilty, but did not show up for his sentencing hearing. The circuit court issued a bail forfeiture judgment on October 8, 2012. On November 21, 2012, the prosecuting attorney’s office sent a letter to Exodus notifying it that the bail forfeiture judgment had been filed. Exodus filed a motion to set aside the forfeiture on the grounds that Miles had surrendered. The circuit court wanted more proof of the actual surrendering and denied the motion without prejudice. No additional proof was presented to the court and the motion to set aside remained denied. Exodus appealed.

The Prosecutor has Standing to Represent the State at a Bail Forfeiture Hearing. A surety may obtain relief from a bail forfeiture judgment “upon good cause shown why execution should not issue[.]” HRS § 804-51. Absent a good cause, the bond must be forfeited. State v. Vaimili, 131 Hawaii 9, 17, 313 P.3d 698, 706 (2013). Here, Exodus does not challenge the lack-of-good-cause finding by the circuit court. Instead, it argued that the prosecutor had no place at the hearing on its motion to set aside forfeiture.

The Prosecutor’s Source of Power. The office of the prosecuting attorney is indeed a county office, but each county has “the power to provide by charter for the prosecution of all offenses and to prosecute for offenses against the laws of the State under the authority of the attorney general of the State[.]” HRS § 46-1.5(17). The City and County of Honolulu exercised that power and established the office of the prosecuting attorney. The prosecutor’s office has the power to “[a]ttend all courts in the city and conduct, on behalf of the people, all prosecutions therein for offenses against the laws of the state and ordinances and rules and regulations of the city[.]” Rev. Charter of the City and County of Honolulu § 8-104.


Bail-Bond Forfeiture Proceedings are part of the Criminal Case. The ICA rejected Exodus’ argument that the bail bond proceedings were civil in nature and that the prosecutor’s office could not represent the State. The ICA noted that HRS § 804-5 establishes forfeiture proceedings in a “criminal cause.” Moreover, the legislative history of the provision strongly suggested to the ICA that the prosecutor’s office has a place in bail bond forfeiture proceedings. And so the ICA affirmed the order denying Exodus’ motion to set aside the bail forfeiture judgment.

A Trial Court's Duty to See if the Jury was Under the Influence

State v. Chin (HSC June 25, 2015)
Background. Susan Chin was indicted with theft in the first degree, attempted theft in the first degree, and money laundering. Chin was the caretaker for the complainant, and the charges alleged that Chin took the proceeds from the sale of the complainant’s home, use of the complainant’s annuities and monies, and other benefits. Chin had a jury trial. In the middle of the trial, the prosecution’s witness, Charles Bowen, testified. The jury found Chin guilty of some, but not all charges.

Chin filed a motion for a new trial and included a declaration of Bowen. Bowen was the complainant’s neighbor who provided evidence for the prosecution. Bowen testified that he had a job with the U.S. government and had a security clearance. In the middle of the trial, a juror approached him in the bathroom. The juror did not say he was a juror, but handed him a business card. The card appeared to indicate that the person was a retired United States Navy service member. The person ended up being the foreperson on the jury.

The motion was denied and Chin was sentenced to prison for up to ten years and more than half a million dollars in restitution. Chin appealed and the ICA affirmed.

The Right to a Fair and Impartial Jury and the Williamson Two-Step. The defendant has a constitutional right to a fair and impartial jury in a criminal case. State v. Pokini, 55 Haw. 640, 641, 526 P.2d 94, 99 (1974). The defendant must first make a prima facie showing that a deprivation that “could substantially prejudice [his or her] right to a fair trial” by an impartial jury took place. State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991). Once made, the “rebuttable presumption of prejudice is raised.” Id. This Williamson test focuses first on the general nature of the outside influence and whether it “could” substantially prejudice the defendant. If it does, then the rebuttable presumption comes into play and the trial court is obligated to investigate.  Id.

According to the HSC, the trial judge (Judge Ahn) and the ICA wrongly applied the test. All that was required of the defendant was a prima facie showing that the outside influence “could” have substantially prejudiced the right to a fair trial. The circuit court and the ICA, however, raised the defendant’s burden to showing actual prejudice. The HSC made it very clear that once the defendant makes a showing that the outside influence could have substantially prejudiced the right to a fair trial, the trial court is obligated to investigate. That didn’t happen here.

Juror-Witness Contacts are an Outside Influence. The HSC then applied the test to Chin’s case. It focused on the nature of the alleged outside influence—the contact between a juror and a witness. Relying on precedent from the HSC and the US Supreme Court, the HSC held that “any contact or private communication, unless trivial, during trial between a juror and a witness represents an outside influence of a nature that could substantially prejudice a defendant’s right to a fair trial.” See Mattox v. United States, 146 U.S. 140, 150 (1892); Remmer v. United States, 347 U.S. 227, 229 (1954); State v. Pokini, 55 Haw. 640, 656, 526 P.2d 94, 108 (1974); State v. Messamore, 2 Haw. App. 643, 652, 639 P.2d 413, 420 (1982) abrogated on other grounds in State v. Moore, 82 Hawaii 202, 921 P.2d 122 (1996).

In a footnote, the HSC expanded on the word “trivial.” “A court may find that brief salutations, such as good morning or good afternoon, are trivial when there are no circumstances present indicating that the communication was anything other than benign.”

The communication in this case was not trivial. The trial court had enough evidence that the contact between Bowen and the juror could have substantially prejudiced Chin’s right to a trial. She met her burden triggering the court’s duty to investigate.

The Court’s Obligation to Investigate the Matter. Once the defendant meets his or her burden, the trial court is obligated to “further investigate the totality of circumstances surrounding the outside influence to determine its impact on jury impartiality.” Williamson, 72 Haw. at 102, 807 P.2d at 596. The investigation includes an “individual examination of potentially tainted jurors, outside the presence of the other jurors, to determine the influence, if any, of the extraneous matters.” Id. The court must investigate to determine if the outside influence was harmless or not. Messamore, 2 Haw. App. at 652, 639 P.2d at 420.

After the investigation, the burden falls onto the prosecution to show that the outside influence on the jury was harmless beyond a reasonable doubt. Williamson, 72 Haw. at 102, 807 P.2d at 596.


The Remedy. The trial court failed to investigate the matter and there is no way to determine if Chin’s fundamental right to a fair trial by an impartial jury had been compromised or not. Based on that impossibility, the HSC not only vacated the judgment, it remanded for a new trial. In other words, the trial court was not given the opportunity to investigate. The presumption of prejudice prevailed and a new trial was ordered.

Tuesday, June 23, 2015

The Right to Counsel of Choice is Strong Enough to Outweigh a Jury that’s Ready to Go.

State v. Reed (HSC June 17, 2015)
Background. Ikaika Reed was charged with assault in the first degree. The allegation stems from an incident at the Waianae Boat Harbor, where during the early morning hours, Reed punched a guy in the face while holding the knife and caused a laceration across the guy’s face from “the tip of his ear to the tip of his nose.” If convicted, he was looking at a ten-year prison term with a mandatory minimum of three years and four months.

Shortly after his arraignment, the Office of the Public Defender was appointed to represent him. Twenty-seven days after the appointment, the public defender moved to continue trial because he had not received a copy of the grand jury proceedings. Trial was continued. About a week before trial, Reed moved to continue again. The motion was continued briefly. Five days before the trial date, Reed told the court that he was looking for retained counsel and requested more time. The prosecution did not object, but the circuit court denied the motion.

On the day of trial, Reed appeared with privately retained counsel and renewed his request for a continuance. The public defender moved to withdraw. Reed’s retained counsel explained that if the continuance was granted, he would be able to represent Reed at trial. The circuit court nonetheless found Reed’s request “dilatory” and denied the continuance and the public defender’s motion to withdraw.

After a two-day trial, the jury found Reed guilty. The circuit court sentenced Reed to ten years prison with the mandatory minimum of three years and four months. Reed appealed and the ICA affirmed.

Your Constitutional Right to the Lawyer of your Choice. The Sixth Amendment to the U.S. Constitution and Article 1, Section 14 of the Hawaii Constitution includes “the right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 179-80, 19 P.3d 1289, 1291-92 (2001). The right to retained counsel is so important that deprivation of it results in “structural error.” State v. Cramer, 129 Hawaii 296, 303, 299 P.3d 756, 763 (2013). A structural error affects the structure in which the trial took place, not the trial process itself. State v. Ortiz, 91 Hawaii 181, 193, 981 P.2d 1127, 1139 (1999). And so structural errors are not subject to harmless review. The HSC noted that inherent in the right to retained counsel is the fact that that the accused “should have confidence and trust in his or her counsel, and accordingly, in the judicial system as a whole.”

The Maddagan-Cramer-(and now)-Reed Balancing Test. Like all rights, the right to retained counsel is not absolute. When the court considers a motion to withdraw and substitute counsel, the trial court must give “[d]ue regard” to the defendant’s right to counsel of choice and “countervailing considerations.” Maddagan, 95 Hawaii at 180, 19 P.3d at 1292. The HSC pointed out that in Cramer there were cases from other jurisdictions that had identified a host of factors to determine. In Cramer, however, the trial court only considered the timeliness of the request and failed to address other factors. Id. at 302, 299 P.3d at 762. The HSC held that this case is extremely similar. Every request for a continuance in the case was justified and there was insufficient grounds to deny the motion to withdraw. The prompt administration of justice was simply not enough to justify the circuit court’s denial. And because this was a structural error, no harmlessness needed to be proved. The judgment was vacated and remanded for a new trial.

Sending a Letter Bound for the HPA is not “Remaining Silent” at the HPA.

State v. Garcia (HSC June 15, 2015)
Background. Eddie Garcia was charged with one count of continuous sexual assault of a minor under the age of fourteen years, a Class A felony, and one count of abuse of family household member. He pleaded not guilty and prepared for trial. After the pre-trial voluntariness hearing, Mr. Garcia reached a plea agreement with the prosecution. Mr. Garcia agreed to plead no contest to both counts and agree to 20 years prison concurrent (he wouldn’t have to do 21 years). The prosecution agreed to “remain silent at the minimum term hearing” in front of the Hawaii Paroling Authority.

Before sentencing, Garcia’s family and friends submitted to the pre-sentence investigator letters of support of him. His daughter also wrote a letter asking the Court to lessen his sentence because her mother was struggling without him. The prosecution also submitted a letter and three exhibits. The letter pointed out “some aggravating factors” even though it simultaneously recognized that Garcia’s sentence had already been determined pursuant to the plea agreement. The letter drew attention to the facts underlying the case and the attached exhibits included evidence that was never part of the PSI report, including a transcribed confession by Garcia to the police. The letter drew conclusions from the material by arguing that Garcia has tried to avoid taking responsibility for “his aberrant and sexually predator actions.” The letter also called him a “master manipulator.” Finally, the letter summed up that there should be no factors in favor of withholding imprisonment.

Garcia moved to withdraw his no-contest plea on the grounds that the prosecutor breached her agreement. At the hearing on the motion, the family court, concluded that the prosecutor did not breach the agreement because the PSI had not yet gone to the HPA. The family court—over Garcia’s objection (he wanted to withdraw the plea entirely)—denied the motion, but ordered the old PSI stricken and ordered a new PSI. This time the new PSI did not contain the prosecutor’s letter and attachments. At sentencing the family court sentenced him to 20 years. Garcia appealed and the ICA affirmed. Garcia applied for a writ of cert.

The Two Standards in Evaluating a Motion to Withdraw a Plea. How the court evaluates the withdrawal of a no-contest or guilty plea depends on when the request was made.

Where the request is made after sentence has been imposed, the “manifest injustice” standard is to be applied. But where the motion is presented to the trial court before the imposition of the sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice.

State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 522-23 (1978). See also Hawaii Rules of Penal Procedure Rule 32(d). Here, Garcia moved to withdraw the plea before sentencing. That means, according to the HSC, that the issue was whether the prosecutor’s conduct was a fair and just reason for requesting the plea and whether the prosecution relied on the plea to its substantial prejudice.

Submitting a Letter Bound to the HPA was a “Fair and Just” Reason to Get out of the No-Contest Plea. “It is well settled that the terms of a plea agreement, which serve as the inducement for entering a plea, must be fulfilled.” State v. Adams, 76 Haw. 408, 414, 879 P.2d 513, 519 (1994). When the parties enter a plea agreement, “the liberty of the defendant, . . . the honor of the government, public confident in the fair administration of justice, and the efficient administration of justice” are all at stake. People v. Sanders, 191 Cal. App. 3d 79, 87 (Cal. Ct. App. 1987).

According to the HSC, the prosecutor’s sending of the letter and exhibits was “inconsistent” with the prosecution’s promise to “remain silent at the minimum term hearing” before the HPA. Even though the prosecutor knew that Garcia would be sentenced to twenty years and even though the letter would eventually be received by the HPA, the prosecutor submitted it. The letter was more than a factual rehashing of the offense, it also “drew conclusions from this factual information and presented argument attacking Garcia’s character.”

The Family Court’s Intervention Could not Save the No-Contest Plea. The HSC expressly noted that the family court’s effort to prevent the HPA from reaching the letter was not enough. “Although the family court’s intervention protected Garcia from being prejudiced at the HPA, it could not undo the impact on Garcia’s perception of the integrity of the system and the trustworthiness of the government and his own counsel.”

The HSC appeared to be deeply concerned about the loss of confidence and trust that accompanies a breached plea agreement. The HSC noted that “if the integrity of plea agreements is not enforced, defendants may lose trust and confidence in the defense counsel who recommended the plea agreement. This outcome would directly undercut the attorney-client relationship.” See State v. Gaylord, 78 Hawaii 127, 141, 890 P.2d 1167, 1181 (1995) (“the attorney-client relationship requires ‘the highest degree of trust and confidence.’”).

Editor’s Note. In the interest of full disclosure, I represented Mr. Garcia before the ICA and the HSC.

Thursday, June 18, 2015

Huge Landowners Can’t have a 1,000-Acre “Residence, Including Yard.”

State v. Guyton (HSC June 8, 2015)
Background. John Varel got a restraining order and later an injunction against Evans Guyton. The order prohibited Guyton from “[e]ntering or visiting [Varel’s] residence, including yard and garage.” Varel lives on a 1,000-acre property out in Waihee on Maui.  Guyton was later charged with violating a restraining order or injunction. HRS § 604-10.5(h). Specifically, the complaint alleged that Guyton of “entering and/or visiting the premises including yard and garage of the residence, and/or place of employment.”

At his trial, Varel described his vast property, including a macadamia nut farm, conservation lands, and his residence. The property starts at the highway and goes all the way up the mountains to the watershed. He testified that he never gave anyone permission to dirt bike on the property. Todd Arnold testified that he was hiking on the Varel property when he saw Guyton riding his dirt bike with others along the ridges near the outer parts of the property. Arnold testified that he knew that they were on the Varel property because he knows where the ridge lines are and that Varel pointed out to him the edge of his property. Varel was recalled to the stand and corroborated Arnold. Guyton then testified and acknowledged that Varel’s property is off limits. The district court found Guyton guilty and fined him $500. Guyton appealed. The ICA affirmed.

How to Construe an Injunction Order. Before punishing a person for violating an injunction order, the order must be so “clear and unambiguous” that a person of ordinary intelligence can “ascertain from the four corners of the order precisely what acts are forbidden.” LeMay v. Leander, 92 Hawaii 614, 625, 994 P.2d 546, 557 (2000).
The issue in this case centered around the injunction order prohibiting Guyton from entering Varel’s “residence, including yard.” According to the HSC, that language is clear and unambiguous. The words must “be taken in their ordinary and familiar signification, and regard is to be had to their general and popular use.” In re Taxes of Johnson, 44 Haw. 519, 530, 356 P.2d 1028, 1034 (1960). Courts may “resort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms not statutorily defined.” State v. Pali, 129 Hawaii 363, 370, 300 P.3d 1022, 1029 (2013).

“Residence, Including Yard” Doesn’t Cover a 1,000-Acre Property. Turning to the Oxford English Dictionary, the HSC examined the words “residence” and “yard.” “Residence” means a person’s home, the place where someone lives; “yard” is a piece of ground adjoining a building or house. And so based on this, the HSC held that the “residence, including yard” encompassed the house where Varel lives and the adjacent area surrounding it. Interpreting the injunction order so that the entire 1,000-acre property constitutes “residence, including yard” would run afoul with the plain and ordinary meaning of the words. And so the district court and the ICA erred in interpreting the injunction order so expansively.

Even if the Words were Ambiguous, Lenity Would Favor the Defendant. The HSC then went on to examine what would happen if the words were ambiguous. “Where a criminal statute is ambiguous . . . the statute must be strictly construed against the government and in favor of the accused.” State v. Shimabukuro, 100 Hawaii 324, 327, 60 P.3d 274, 277 (2002). So even if the rule of lenity applied, the order must be construed so that it cannot include the outliers of the Varel property. The HSC reversed the judgment because there was insufficient evidence that Varel had actually violated the injunction order.

Wednesday, May 13, 2015

ICA: We Mean it When we Say Exigency

State v. Ramos-Saunders (ICA April 23, 2015)
Background. Koalaukani Ramos-Saunders was indicted with commercial promotion of marijuana in the first degree and unlawful use of drug paraphernalia. Ramos-Saunders moved to suppress all evidence resulting from a warrantless search of the residence.

One morning, the Honolulu Police Department received a “dropped 911 call” from a number registered to Walter Rosskopf listed at a housing unit—Unit B at an address off of Kamehameha Highway. Two officers went to the address and arrived to Unit B. There, they talked to a woman named Paula Burgess. She told them that he used to live in Unit B, but he moved to Unit A. She added that he had prostate cancer. The Units are two stand-alone residences separated by about 750 feet. The officers moved way from Unit B and went to Unit A. They found no one in Unit A.

As they walked around the residence the officers thought they saw the barrel of a firearm with a silencer. The residence was also in “disarray” with a glass sliding door open, the air-conditioner unit was running, and the lights were on. No one was there. The officers called for reinforcements. The officers decided to go into the residence without a warrant. Once inside they found an indoor grow operation. Somehow (the ICA does not explain it) Koalaukani Ramos-Saunders was linked to the operation. Ramos-Saunders moved to suppress the evidence found in the residence. The motion was granted by Judge Glenn J. Kim. The prosecution appealed.

Search and Seizure: the Basics (Since it’s been a while). “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. Am. IV. Article I, Section 7 of the Hawaii Constitution has a similar right, but it also includes protection against “unreasonable invasions of privacy.” When the government—like the police—enter a home without a warrant, the search inside is presumptively unreasonable. That means that “the prosecution has the burden of overcoming the initial presumption of unreasonableness by proving that the search falls within one of the well-recognized and narrowly-defined exceptions to the general warrant requirement.” State v. Lopez, 78 Hawaii 433, 443, 896 P.2d 889, 899 (1995).

The prosecution contended that the exigency exception justified the warrantless search, which allows the police to search when the prosecution can show “probable cause to search and exigent circumstances exist necessitating immediate police action.” State v. Pulse, 83 Hawaii 229, 245, 925 P.2d 797, 813 (1996).

How Exigent does it have to be? Pretty Exigent. Exigency arises when “the demands of the occasion reasonably call for an immediate police response. More specifically, it includes situations presenting an immediate danger to life or serious injury or an immediate threatened removal or destruction of evidence.” State v. Jenkins, 93 Hawaii 87, 103, 997 P.2d 13, 29 (2000).

The ICA rejected the prosecution’s exigency claim. The police received a drop call. When they arrived to the scene they learned that the phone number belonged to a man with prostate cancer had moved to Unit A. That was all. According to the ICA, there was no indication that anyone needed immediate police assistance. There was nothing to give the police anything to think that there was an immediate danger to life, limb, injury, or the destruction of evidence. Even when they saw that Unit A was in disarray and saw a gun there was no immediacy. No one was around. The ICA was very clear that the mere presence of a gun and a silencer did not create an exigent circumstance. See State v. Meyer, 78 Hawaii 308, 314, 893 P.2d 159, 163 (1995) (“no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’”). The ICA affirmed the suppression.

Turning Down the “Emergency Aid” Exception. In the process of rejecting the prosecution’s claim, the ICA declined an extension of the exigency exception. Federal courts interpreting the Fourth Amendment have recognized exigency when the demands of the situation reasonably call for an immediate police response; including those situations where a person requires emergency aid. Michigan v. Fisher, 558 U.S. 45, 48 (2009); Brigham City, Utah v. Stuart, 547 U.S. 398 (2006).

The ICA noted that Hawaii courts have never extended exigency that far. “Article I, section 7 of the Hawaii Constitution affords the people of this state greater protection than does the fourth amendment of the United States Constitution.” State v. Tuua, 98 Hawaii 426, 449, 49 P.3d 1227, 1250 (2002).

Thursday, April 23, 2015

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

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

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

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

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

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

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

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