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

State v. DeCoite (HSC February 28, 2014)

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

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

So much for the Cycle of Violence . . .

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

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

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

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

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

State v. Pomroy (HSC January 31, 2014)

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

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

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

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

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

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

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

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

(Discussion between Counsel and Defendant)

THE COURT: Alright.

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

THE COURT: Your choice not to testify?

THE DEFENDANT: Yes, ma’am.

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

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

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

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

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

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

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

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

State v. Basham (HSC February 6, 2014)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Assault in the First Degree is a Lesser Included Offense to Murder

State v. Kaeo (HSC February 28, 2014)

Background. Paul Kaeo was indicted with one count of murder in the second degree. Evidence at trial showed that Kaeo separated from his wife Debbie and Debbie started seeing Charles Kahumoku. During the separation, Paul and Debbie communicated with each other—especially when Debbie would argue with Charles. Paul would tell Debbie that he threatened to kill Charles if he ever found him. Debbie’s father also reported that Paul would make similar threats about Charles. The incidents escalated between Paul and Charles. One day in May, Paul was with Debbie and her father preparing for a party. Paul and the father discussed Debbie and her relationship with Charles. Charles dropped off Debbie, but did not stick around. Later that night, Charles showed up and started yelling at Paul.

The two of them got into an argument. Paul grabbed a pipe and started smashing Charles’ car. Paul then went to the driver’s side of the car and started “jabbing” Charles. Paul admitted he was trying to hurt Charles, but testified that he was under the impression that he needed to do it to protect Debbie. He testified that he did not intend on killing him. Eventually, Charles started making a gurgling sound and Debbie’s father took the pipe away from Paul. No emergency personnel showed up for about ten minutes. Paul testified that he did not know Charles had died that night. The ambulance arrived to the scene and pronounced Charles dead. The doctor who performed the autopsy concluded that Charles died of blunt force trauma to the head.

Kaeo requested that the jury be instructed on assault in the first degree as a lesser-included offense to murder in the second. The circuit court (Judge Ahn) refused to provide the instructions. The jury found Kaeo guilty of reckless manslaughter and the court sentenced him to prison for twenty years with a mandatory minimum of six years and eight months. Kaeo appealed to the ICA, which affirmed the conviction on the grounds that the court’s failure to provide the instruction was harmless error. Kaeo petitioned for cert to the HSC.

The Law of Lessers: Same Offense but for Degree of Injury is Probably a Lesser. An offense is a lesser-included one when, inter alia, “[i]t differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating a lesser degree of culpability suffices to establish its commission.” HRS § 701-109(4). “The degree of culpability, degree of injury or risk of injury and the end result are some of the factors considered in determining whether an offense is included in another” under this provision. State v. Kupau, 63 Haw. 1, 7, 620 P.2d 250, 254 (1980).

Here, the HSC noted that all three factors—the degree of culpability, degree of injury, and the end result—as well as the legislative history of the offenses all point toward making assault in the first degree a lesser-included offense of murder in the second.

Assault in the First does not Require a Greater or Different Mental State. The first factor—the degree of culpability—requires the lesser-included to have a mental state that is not “greater than or different from that which is required for the charged offense.” State v. Alston, 75 Haw. 517, 534, 865 P.2d 157, 166 (1994). Here, the HSC held that murder in the second degree and assault in the first do not require separate or different mental states. Murder requires proof that the person “intentionally or knowingly caused” the death of another. HRS § 707-701.5(a). First-degree assault requires “intentionally or knowingly” causing serious bodily injury. HRS § 707-710(1). This, according to the HSC, does not require a greater or different mental state from murder in the second.

Degree of Injury is Lesser than the “Injury” Needed to Prove Murder. The other factor is whether the degree of injury in assault in the first degree is greater than the seriousness of injury or damage in murder. According to the HSC, murder and assault in the first require the defendant to cause “physical harm” in some degree. In murder, the physical harm is death, which is obviously more serious than “serious bodily injury” as defined in HRS § 707-700. Serious bodily injury is the kind of injury that carries the substantial risk of death. Id. That would obviously be a lesser degree of harm than death itself. The HSC noted that finding that assault in the first is a lesser included of murder in the second, adheres to the principle that two offenses can require the same mental state and conduct, but require different results of that conduct.

Different “End Results” still Point to a Lesser-Included Offense. “[T]he lesser included offense should produce the same end result as the charged offense.” State v. Burdett, 70 Haw. 85, 89, 762 P.2d 164, 167 (1988). That “end result” means the results of the criminal act. For example, negligent homicide and murder have the same “end result.” The HSC noted that assault in the first degree does not have the same, permanent end result as murder. Nonetheless, this is just one of several factors for the court to determine a lesser-included offense. See State v. Woicek, 63 Haw. 548, 551, 632 P.2d 654, 656 (1981); State v. Kupau, 63 Haw. at 7, 620 P.2d at 254 (even though offenses do not have same end result, harassment a lesser-included offense to assault in the third degree).

Here, the HSC held that even though the offenses had different end results, they are both offenses against the person and require proof of physical harm to that person. That was enough for the HSC to determine that this factor pointed toward making assault in the first degree and lesser.

The “Legislative Statutory Scheme” also Implies a LIO. The HSC then examined the “legislative statutory scheme.” Both are crimes against persons and are within the same sections of the Hawaii Penal Code.

Failure to Instruct the Jury is NOT Harmless. Having held that the assault offense is a LIO to murder, the HSC went on to examine if it was harmless beyond a reasonable doubt in failing to instruct the jury about it. “Jury instructions on lesser-included offenses must be given where there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” State v. Flores, 131 Hawaii 43, __, 314 P.3d 120, 128 (2013). The HSC held fairly easily that the evidence showed such a rational basis. Kaeo testified that he was trying to hurt Charles, not kill him. That would have been enough of a rational basis. Moreover, the circumstances surrounding the incident allowed the jury to believe that Kaeo did not intentionally or knowingly cause Charles’ death. Thus, according to the HSC, the court erred in refusing to instruct the jury about assault in the first degree.

Chief Justice Recktenwald’s Dissent. The Chief Justice was the lone dissenter. He wrote that the main issue was not whether there was a rational basis for the jury to acquit of murder in the second and convict of assault in the first. Rather, the real issue was if there was a rational basis for its actual verdict—manslaughter. The CJ believed there was no such rational basis and would have affirmed the judgment. The CJ wrote that the trial court properly instructed the jury about the lesser included offense of manslaughter based on recklessness and manslaughter based on extreme emotional or mental distress. The issue is really whether assault in the first degree is a lesser-included offense to reckless manslaughter and the CJ properly pointed out that the “majority skips that step.”

HSC to the CJ: Not our Job. The chief contention from the Chief Justice was that the HSC’s holding would conflict with the manslaughter verdict. The HSC responded that a finding that Kaeo intentionally or knowingly caused serious bodily injury does not automatically infer a conscious disregard of the risk that Kaeo’s conduct would result in the injured person’s death. Moreover, the HSC noted that the evidence would have allowed the jury to acquit of murder and manslaughter, but not of assault in the first degree. The HSC disagreed with the CJ’s contention that the evidence made it impossible for the jury to convict of assault in the first degree. “[I]t is the duty of the jury, and not an appellate court, to weigh such evidence; it would be contrary to fundamental principles of our jury system to hold, as the dissent urges, that as a matter of law the jury ‘could not have’ found assault in the first degree ‘without also finding’ that [Kaeo] consciously disregarded the risk that the jabbing would cause Charles’ death.”

County's Ordinance for Low Priority Enforcement of Pot Preempted by State Law

Ruggles v. Yayong (ICA February 7, 2014)

Background. The voters on the Big Island passed an initiative to make the enforcement of marijuana laws the lowest enforcement priority in the county. The law required law enforcement activities related to drug offenses for adults to be higher than cannabis possession and cultivation of a single case involving twenty-four or fewer plants when intended for adult personal use. The law also prohibited the chief of police and the police commissioner from working with federal law enforcement agencies and prohibited the County Council from authorizing the acceptance of funds to investigate, cite, arrest, prosecute the lowest law enforcement priority policy. A group of concerned citizens on the Big Island brought a lawsuit against county officials alleging that the officials failed or refused to enforce this new law. The County responded by dismissing the case. The circuit court dismissed it on the grounds that the Hawaii Penal Code superseded the new law.

County v. State Powers (State Wins most of the time). The counties derive their power to enact and enforce its ordinances from the general laws of the State. Haw. Const. Art. VIII, Sec. 1. The legislature, however, has the power to enact laws of “statewide concern.” Haw. Const. Art. VIII, Sec. 6. The State legislature can “enact all laws of general application throughout the State on matters of concern and interest and laws relating to the fiscal powers of the counties, and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.” HRS § 50-15. If they do conflict, the county ordinance is invalid. Stallard v. Consol. Maui, Inc., 103 Hawaii 468, 473, 83 P.3d 731 ,736 (2004).

On the other end of the spectrum, counties have the power to protect “health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject matter not inconsistent with or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State.” HRS § 46-1.5(13). In other words, the ordinance is preempted by State law if “(1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.” Richardson v. City and County of Honolulu, 76 Hawaii 46, 62, 868 P.2d 1193, 1209 (1994).

Why does the County Represent the State in Prosecutions? The ICA has duly answered this age-old question. The power to detect, investigate, and prosecute criminal offenses lies within the purview of the chief law enforcement officer of the state, the Attorney General. HRS § 28-2.5(a). “The public prosecutor, however, has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction. What is thus reserved to the attorney general is the residual authority to act.” Amemiya v. Sapienza, 63 Haw. 424, 427, 629 P.2d 1126, 1129 (1981).

Hawaii Penal Code and Hawaii’s Uniform Controlled Substances Act Preempt the County Ordinance. The ICA held that the Hawaii Penal Code that regulates and (outlaws) the possession of just about any kind of marijuana and the Uniform Controlled Substances preempt the county ordinance. “[H]ow violations of state penal laws are investigated by authorized state and county officials is inherently . . . a matter of statewide concern.” Marsland v. First Hawaiian Bank, 70 Haw. 126, 133, 764 P.2d 1228, 1232 (1988). Here, that was enough for the ICA to agree with the circuit court’s dismissal.

. . . Nice Try, Big Islanders. The pro se parties that brought this lawsuit tried to get the County to enforce its own initiative. The County has refused on the grounds that State laws preempt it. That may be so. Looks like the only way to get this through is through the Legislature, not the County Council.

So What Else is Preempted? This opinion—a refresher course in the delegation of power from the State to the counties—raises interesting questions. Just about every county prohibits the use of a cell phone while in the car. But now it seems like the State has passed a law too. Are the counties preempted? It would seem so.

Landing on Kahoolawe is not a Strict Liability Offense

State v. Armitage et al. (HSC January 28, 2014)

Background. Nelson Armitage, Russell Kahookele, and Henry Noa were charged by complaint of violating Haw. Admin. Regulation (HAR) § 13-261-10, the offense of entering into the Kahoolawe Island Reserve. The complaints read as follows:

That on or about the 31st day of July, 2006 . . . [the defendants] did enter or attempt to enter into, or remain within the Kahoolawe Island Reserve without being specifically authorized to do so by the commission or its authorized representative, thereby committing the offense of Entrance Into the Reserve, in violation of [HAR § 13-261-10].

The Defendants pleaded not guilty and their cases were consolidated. In their motion to dismiss, they challenged the constitutionality of the regulations and the prosecution itself. The Defendants argued, inter alia, that they had a constitutional right to go onto Kahoolawe in furtherance of traditional Native Hawaiian practices, founding an indigenous nation, and to practice their religion. They also argued that they constituted a recognized sovereign entity as an alternative to the State of Hawaii itself. The motion was denied. The parties then entered into a stipulated facts trial and the district court found the Defendants guilty as charged, but stayed sentence pending this appeal. The ICA affirmed and the Defendants petitioned to the HSC.

At the Outset, the Complaints are Deficient for Failing to Plead Mens Rea. The HSC’s actual holding in this case has nothing to do with Native Hawaiian rights, recognition of the Kingdom of Hawaii, or any other heady matters. The HSC instead focused on whether the prosecution adequately pleaded the offense.

“No person or vessel shall enter or attempt to enter into or remain within the [Kahoolawe Island] reserve unless such person or vessel” is authorized to do so or has met certain enumerated exceptions. HAR § 13-261-10. The regulation does not expressly include a state of mind. Generally, when an offense does not include it, the prosecution still has to prove that the person acted “intentionally, knowingly, or recklessly” unless the absolute liability “plainly appears” or a violation. HRS § 702-204. The HSC held that this offense is not a violation—the offender faces the possibility of up to 30 days jail and a $1,000 fine. HRS § 6K-8. It also held that it does not “plainly appear” from the legislative history of the reg or the reg itself that this should be a strict liability offense. Therefore, HAR § 13-261-10 is not a strict liability offense and the prosecution must prove that the Defendants committed the act knowingly, intelligently, or recklessly.

“A charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense and thus the charge is dismissed without prejudice because it violates due process.” State v. Appollonio, 130 Hawaii 353, 359, 311 P.3d 676, 682 (2013). The complaints here did not allege a state of mind and so it must be dismissed.

The Long Appellate Process Does not Toll the Statute of Limitations. This offense is a petty misdemeanor. HRS § 6K-8. The statute of limitations for a petty misdemeanor is normally one year. HRS § 701-108(2)(f). The HSC rejected the Defendants’ argument that once dismissed, the prosecution cannot simply re-file because it is time barred. The period of limitation does not run and is tolled “[d]uring any time when a prosecution against the accused for the same conduct is pending in this State[.]” HRS § 701-108(6). According to the HSC, this time includes the time pending on appeal in the State. Specifically, the HSC held that the statute of limitations was tolled from the start of the filing of the complaints and will not end until the HSC remands it back down to the district court and enters its order dismissing without prejudice.

Once that issue was settled and given the likelihood of a retrial, the HSC addressed the other issues raised by the Defendants.

The Right to Establish an Alternative, Sovereign, Indigenous Government. HSC rejects right to nation-building. Although the an indigenous Kingdom of Hawaii “exists as a state in accordance with recognized attributes of a state’s sovereign state” allowing a defendant to challenge jurisdiction, State v. Lorenzo, 77 Hawaii 219, 221, 883 P.2d 641, 644 (App. 1994), the HSC now held that there is no fundamental right to build a sovereign Hawaiian nation. Rather, Lorenzo stands for the proposition that once a federally-recognized sovereign Hawaiian nation has been established, courts may face jurisdictional challenges. Until then, there is no such right.

Landing and Occupying Kahoolawe is not Symbolic Speech Either. The HSC also rejected the claim that going onto Kahoolawe, though politically motivated, was not symbolic speech protected by the First Amendment and the Hawaii Constitution. State v. Jim, 105 Hawaii 319, 97 P.3d 395 (App. 2004) (physical presence of protesters to prevent workers from investigating a water line not protected by freedom of expression); Kleinjans v. Lombardi, 52 Haw. 427, 433, 478 P.2d 320, 324 (1970) (occupying university office “did not take the form of a public rally but instead involved the occupation of the private office of a university official. There could not be any good faith claim that this area was open to the public for the purpose of expressing dissident ideas.”). The HSC specifically held that the occupation could not be considered “speech.”

The Other Issues. The HSC rejected all of the claims raised by the Defendants including infringements on the free exercise of religion and traditional and customary rights of Native Hawaiians.

The Chief Justice’s Concurrence and Dissent. The Chief Justice would have affirmed the conviction because despite the deficient pleading, no one objected on those grounds and no prejudice was demonstrated. Justice Nakayama joined.

HSC Gets Serious About Waiving Trial Rights

State v. Baker (HSC January 27, 2014)

Background. Kaolino Richard Baker was charged with a single count of abuse of family or household member. HRS § 709-909. The incident involved his ex-girlfriend. At a pretrial hearing, Baker’s lawyer said that he signed a “waiver of jury trial” form. The form stated that Baker had a series of numbered paragraphs all of which were initialed except for the one stating that he was “entering this waiver of my own free will after careful consideration. No promises or threats have been made to me to induce me to waive my right to a jury trial.” He did, however, sign the form and it was certified by counsel that counsel went over all of the contents of the form and that counsel believed that it was signed voluntarily and intelligently. The family court conducted a colloquy, but failed to ask Baker about whether his decision to waive the right to a jury trial was voluntary. After the colloquy, Baker signed the form a second time certifying that the judge questioned him in open court “to make sure that I knew what I was doing and understood this form before I signed it.”

After a bench trial, the family court found Baker guilty and sentenced him to probation for two years, including 30 days jail. Baker appealed. The ICA affirmed.

Trial By Jury is Kind of a Big Deal. “Trial by jury is considered fundamental to our system of criminal justice.” State v. Pokini, 55 Haw. 640, 656, 526 P.2d 94, 108 (1974). Here in Hawaii, trial by jury generally applies when the potential penalty for the charged offense is six months or more. HRS § 806-60. Baker had a right to a jury trial because the potential penalty for abuse of a family or household member could lead to a year in jail.

In these cases, the trial court at arraignment must inform the defendant about the right to a jury trial and inform the defendant that he or she “may elect to be tried without a jury in the district court.” HRPP Rule 5(b)(1). This right—like almost all others—can be waived, but it must be “in writing or orally in open court.” State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). The waiver is the “knowing, intelligent, and voluntary relinquishment of a known right.” State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000). Waiver is reviewed on a totality of the circumstances and must be approved by the trial court. HRPP Rule 23(a).

Trial Court has the Duty to Ensure a Proper Waiver of Rights. Approving of the waiver of a right is a “serious and weighty responsibility.” United States v. Saadya, 750 F.2d 1419, 1421 (9th Cir. 1985). In Hawaii, trial courts must engage in an on-the-record colloquy with the defendant to carry out this serious and weighty duty. State v. Gomez-Lobato, 130 Hawaii 465,__, 312 P.3d 897, 901 (2013). Here, there was nothing in the record indicating that Baker voluntarily waived his jury trial right. Both the colloquy and the waiver form failed to show that Baker understood that his waiver has to be of his own free will or that no one put pressure on him or that it was simply voluntarily given. This was enough to vacate the judgment and remand for a new trial.

Justice Acoba’s Concurrence. Justice Acoba agreed that the failure to ensure that the waiver of this right was voluntarily given requires a new trial. He wrote separately to note that the colloquy and the form should also include informing Baker that (1) twelve members from the community compose a jury; (2) the defendant may take part in the jury selection; (3) a jury verdict must be unanimous; and (4) the court alone decides “guilt or innocence” if the defendant waives a jury trial. See Gomez-Lobato, 130 Hawaii 465, __, 312P.3d 897, 905 (2013) (Acoba, J., concurring).