Tuesday, February 2, 2016

Failure to Ask for Instruction, Argue Issue on Appeal Doesn't Seem to Matter

State v. Henley (HSC December 22, 2015)
Background. John Henley was charged with assault in the third degree. HRS § 707-712(1)(a). At trial, the complainant, a 68-year-old security guard, went to check out a party one of the condos at the Colony Surf for a noise complaint. The police showed up and asked him to escort two people off the property, including Henley. The complainant testified that they were rude to him and then Henley head-butted him in the face and punched him when he fell to the ground. As Henley kicked him, he squeezed his testicle to stop him. It worked. Henley ran off into Kapiolani Park and the police apprehended him. An investigating officer testified about Henley’s injuries. The defense called the other guy, Kalanikapu Copp. Copp testified that the complainant got into a fight with Henley and tried to choke him out or put Henley in an arm bar. Henley also took the stand and testified that the security guard attacked him.

Neither the prosecution nor Henley requested the mutual affray jury instruction. The jury found him guilty as charged. At sentencing, the prosecution requested 30 days jail. Henley recommended probation given his lack of criminal record. The court sentenced Henley to 30 days jail.

Henley immediately informed the court that he intended to appeal and asked that the sentence be stayed pending appeal. The prosecution responded by requesting bail to be increased to $11,000 on the grounds that Henley “is not from here. Appeals take a long time.” Henley countered that even though he wasn’t born in Hawaii and came from Arkansas, he lived here now with his father and this is where they remain. The court increased bail to $2,000 cash only and did not set a further bail hearing. Because he didn’t have the money he immediately went into custody and his father made bail three days later.

The ICA affirmed. Henley never raised the issue of mutual affray instructions.

The Trial Court’s Failure to Instruct the Jury on Mutual Affray was Plain Error. “[I]n our judicial system, the trial courts, not the parties, have the duty and ultimate responsibility to insure that juries are properly instructed on issues of criminal liability.” State v. Adviento, 132 Hawaii 123, 137, 319 P.3d 1131, 1145 (2014). Henley was charged with assault in the third degree, which is a misdemeanor “unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.” HRS § 707-712(2). That means that if the jury finds a “mutual affray,” the offense is reduced from a misdemeanor to a petty misdemeanor punishable only for up to 30 days.

The trial court did not give a mutual affray instruction even though it “must submit a mutual affray instruction to the jury where there is any evidence in the record that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent.” State v. Kikuta, 125 Hawaii 78, 96, 253 P.3d 639, 657 (2011). Mutual affray “requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct.” Id. at 96 n. 12, 253 P.3d at 657 n. 12. According to the HSC, the trial court plainly erred in failing to instruct the jury about the reduction. There was ample evidence suggesting that this could have been a mutual affray. Both Copp and Henley’s version support the possibility and the instruction.

Not Harmless Beyond a Reasonable Doubt. Interestingly, the HSC noted that this was not an error that was harmless beyond a reasonable doubt. According to the HSC, “given a choice between convicting Henley on misdemeanor Third Degree Assault and the mitigating offense of petty misdemeanor assault, the jury could have convicted Henley on the latter.” The HSC vacated the conviction and remanded for new trial.

So even though the trial judge gave Henley 30 days jail—the maximum for a petty misdemeanor, it was not harmless. And another thing: is the HSC suggesting that jurors should be instructed that assault 3d is a misdemeanor whereas the mutual affray is a petty?


The Bail Issue. The HSC also held that the trial court abused its discretion in raising bail to $2,000 cash only. First off, in a misdemeanor or petty misdemeanor, the sentence is automatically stayed when the defendant notifies the court of his or her intention to appeal the judgment. State v. Kiese, 126 Hawaii 494, 510, 273 P.3d 1180, 1196 (2012). The court, however, can set bail pending appeal and has the power to set conditions of bail and raise the amount. HRS §§ 804-4 and 804-9. The HSC held that the court’s raising of bail to the maximum available fine to $2,000 and setting it at cash only when it knew that Henley didn’t have the money was an abuse of discretion. There appeared no sound justification for it, according to the HSC.

Chief Justice Recktenwald's Concurrence and Dissent. The CJ joined the majority about the jury instruction issue. He noted that he dissented in Kikuta but is fine with it because now it is the law of the land. As for the bail issue, however, he dissented. He simply did not agree with the majority that raising bail to $2,000 at cash only was an abuse of discretion in light of all the facts in the case. Justice Nakayama joined.

Monday, February 1, 2016

The Prior-Convictions Exception has been Apprendied

State v. Auld (HSC November 24, 2015)
Background. Jayson Auld was convicted of one count of robbery in the second degree. After the verdict but before sentencing the prosecution moved to impose mandatory minimum terms of imprisonment based on a prior conviction. This was the first official notice of the State’s intention to seek the mandatory minimum. It was never pleaded in the indictment, presented to the grand jury, and presented after the verdict before the petit jury. The circuit court granted the motion and sentenced Auld to prison for a period of ten years with a mandatory minimum of 6 years and 8 months. He appealed. On appeal, Auld argued that the imposition of the mandatory minimum was in violation of his right to have each and every element proven before a jury beyond a reasonable doubt. The ICA affirmed. The HSC accepted his petition for writ of certiorari.

The Wild, Weird World of Sentencing Laws. Defendants have the constitutional right to have each and every element of an offense proven before a jury beyond a reasonable doubt. Haw. Const. Art. I, Sec. 14.; U.S. Const. Am. VI. Once a defendant was found guilty, the court would have to sentence the defendant. In sentencing the defendant, the court was free to examine facts that were not “elements.” That is, until the Supreme Court of the United States held that “[a]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466 (2000). This holding was also adopted by the HSC in State v. Maugaotega, 115 Hawaii 432, 447, 168 P.3d 562, 577 (2007). In other words, when the sentencing court was going to use a fact to increase the statutory minimum and extend the sentence pursuant to a statute, that fact was an “element” that in essence became part of the offense. It must be presented to a jury.

Apprendi marked the start of an erosion in the law. The line between sentencing factors and elements to an offense started to blur. And it wasn’t just extended sentencing facts. The SCOTUS extended Apprendi to facts that sentencing courts used to impose a mandatory minimum. Alleyne v. United States, 133 S.Ct. 2151 (2013). Now it seemed that when a fact is used to change a sentence—be it an extended sentence increasing the maximum or a mandatory minimum setting the floor.

The Curious Prior-Convictions Exception. Except for one thing: prior convictions. In Apprendi and Alleyne, the SCOTUS dodged an old exception to the change in constitutional law. A prior conviction didn’t need to be found with proof beyond a reasonable doubt by a jury. Almendarez-Torres v. United States, 523 U.S. 224 (1998); Harris v. United States, 536 U.S. 545, 560 (2002). In the wake of the changes, however, at least one justice on the SCOTUS appears to be ready to do away with this exception. DesCamps v. United States, 133 S.Ct. 2276 (2013) (Thomas, J., concurring); Shepard v. United States, 544 U.S. 13, 27 (Thomas, J., concurring).

. . . Hawaii gets Ahead of the Trend. In light of the changes in sentencing law, the HSC went ahead and did away with the prior convictions exception. Now, before a mandatory minimum can be imposed it has to be pleaded in the indictment. And after a conviction for the underlying offense, the prosecution must prove beyond a reasonable doubt that the prior conviction belongs to the defendant; the prior conviction is a “triggering” conviction under the mandatory minimum statute. HRS § 706-606.5(1) or (4). There must be proof that the conviction occurred within the time frame under HRS § 706-606.5(2), (3), or (4). Finally, there has to be evidence that during the prior conviction, the defendant was represented by counsel or waived the right to counsel. State v. Caldeira, 61 Haw. 285, 290, 602 P.2d 930, 933 (1979).

Here’s the Catch: Prospective Only. Of course, there’s a catch. Because this is a dramatic change in sentencing laws and since this was eerily similar to State v. Jess, 117 Hawaii 381, 184 P.3d 133 (2008). The HSC limited application of the new law to cases that have yet to be filed. So Auld and the others on appeal and in court seem to be without the benefit of the new rule.


Editor’s Note: I represented the Petitioner.

Friday, December 4, 2015

Breathing the Constitution into the Breath Test

State v. Won (HSC November 25, 2015)
Background. Yong Shik Won was pulled over for speeding. The officers suspected that he had been drinking so they ordered him out of the car. Won submitted to field sobriety tests. The officers arrested him for operating a motor vehicle while under the influence of an intoxicant. They took him to the police station. There, they handed him a form and read it to him. The form stated that any person operating a vehicle on a public road is deemed to have given consent to a test for purposes of determining alcohol concentration.

The form also read that Won he could refuse to take a test but “if you refuse to submit to a breath, blood, or urine test, you shall be subject to up to thirty days imprisonment and/or fine up to $1,000.” Won picked a breath test. The police had him blow into a machine called the Intoxilyzer 8000. His BAC came to 0.17 grams of alcohol per two hundred ten liters of breath (which is over the limit of 0.08). Won moved to suppress the blood results. The motion was denied. He appealed to the ICA and the ICA affirmed. The HSC accepted his petition for certiorari.

The Right to be Free from Unreasonable Searches and Seizures Includes Intrusions into the Body. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated” without a warrant. Haw. Const. Art. I, Sec. 7. “An invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” Missouri v. McNeely, 133 S.Ct. 1552, 158 (2013). Subjecting a person to a breath test usually requires the production of alveolar or “deep lung” breath for chemical analysis and it is considered a “search” for purposes of the Fourth Amendment and the Hawaii Constitution. Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 616-617 (1989).

The Consent Exception to the Warrant Requirement. The Hawaii Supreme Court held that a breath test is a “search” that requires a warrant unless the prosecution can show one an “established and well-delineated exception.” State v. Ganal, 81 Hawaii 358, 368, 917 P.2d 370, 380 (1996). Consent is such an exception. Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951 (1981). Consent, however, is more than the absence of an objection. The prosecution must show that it was given voluntarily. State v. Bonnell, 75 Haw. 124, 147-148, 856 P.2d 1265, 1277 (1993); State v. Shon, 47 Haw. 158, 166, 385 P.2d 830, 836 (1963). Whether consent was given freely and voluntarily depends on the totality of the circumstances. State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984).

The Coercion Problem. Consent cannot be coerced. Nakamoto, 64 Haw. at 21, 635 P.2d at 951. The problem in this case—and all OUI cases—is that in 2010, the Legislature criminalized the act of refusing to take a test. HRS § 291E-68. According to the HSC, the form used by the police in Won’s case made it clear that Won had to pick between consenting to a search without a warrant or face a criminal penalty for engaging in conduct protected by the constitution. The HSC viewed this not as a “refusal” to submit to a test, but a refusal to consent to a search. This was untenable. “[T]he government may not condition a right guaranteed in our constitution on the waiver of an equivalent constitutional protection.” If Won exercised his right to refuse, he would be committing a crime. Under these circumstances, this is a form of coercion that undermines the consent exception to the warrant requirement. And so the breath test results should have been suppressed.

Justice Wilson’s Concurrence. Justice Wilson agreed with the majority’s analysis regarding the warrant issue. He wrote separately to opine that this was a good time to consider the constitutionality of the refusal offense—HRS § 291E-68. In his view, it was an unconstitutional infringement on a defendant’s right to “withdraw” or not consent to a search of his person. “The constitutional infirmity of HRS § 291E-68 is more evident in its prosecution of a citizen who, unlike Won, does not consent and instead exercises his or her constitutionally endowed right to the protection of a warrant before the search of his or her blood, breath, or urine. In such a situation, an individual wholly innocent of driving under the influence may be culpable as a criminal misdemeanant merely by refusing to consent to a BAC test without a warrant.” Justice Wilson was ready and willing to declare the statute unconstitutional.

Justice Nakayama’s Dissent. Justice Nakayama dissented and would have held that the legislature properly exercised its authority in criminalizing the refusal to take a test. She wrote that the majority has basically declared HRS § 291E-68 unconstitutional without really declaring it so. She disagreed with the analysis and believed that the statute was constitutional. Her analysis did not hinge on the Fourth Amendment so much as it hinged on whether the Legislature had the right to criminalize refusing to take a test. She found the government’s objective to be sound and would have upheld it. Chief Justice Recktenwald joined her.

In essence, the difference between the majority and the dissenters came to a matter of viewpoint. For Justice Nakayama, the question was whether the Legislature had the power to criminalize refusing to take a test. She applied a balancing test and would have upheld it. For the majority, they took the view from the individual’s point of view and examined it from a personal-liberties standpoint.

It Doesn’t End Here . . . For some time now, folks in the DUI business have been, pardon the pun, holding their breaths for this opinion. In addition to the warrant issue, Won raised other constitutional problems related to Miranda and the constitutionality of HRS § 291E-68 itself. The majority declined to review these issues and left them on the table for future cases. The constitutionality of the refusal crime is an open question. Won was never prosecuted for refusing. Perhaps we will have to wait for somebody to bring that challenge (or perhaps the Legislature will repeal it). I guess we will have to wait on baited breath to see what happens next.         

Tuesday, November 24, 2015

Lost Wages are Compensable Under the Restitution Statute.

State v. DeMello (HSC November 2, 2015)
Background. Lawrence DeMello was charged with harassment and trespassing. He was found guilty after a bench trial. At trial, the complainant testified about an altercation he had with DeMello. Subsequently, the District Court held two evidentiary hearings on restitution claims. Again, the complainant testified about the altercation and included testimony about experiencing chronic pain, blurred vision, and having difficulty standing. She also testified that because of these injuries, she missed work as a hairdresser for ten days. She claimed lost wages in the amount of $1,155.12. DeMello argued that the lost wages were not part of the criminal restitution claim. The district court disagreed and ordered the lost wages as restitution. DeMello appealed the ICA vacated the order and held that lost wages were not compensable. The State petitioned the HSC.

Restitution and Lost Wages. “The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim.” HRS § 706-646(2). Restitution shall be “a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to: (a) Full value of stolen or damaged property . . . ; (b) Medical expenses; and (c) Funeral and burial expenses incurred as a result of the crime.” HRS § 706-646(3).

The Plain Language Rules: Lost Wages are Covered by Restitution Statute. The HSC here had to interpret the statute to see if this included lost wages. It started with the plain language of the statute. “Courts are bound, if rational and practicable, to give effect to all parts of a statute and no clause, sentence or word shall be construed as superfluous, void or insignificant if construction can be legitimately found which will give force to and preserve all words of the statute.” Dawes v. First Ins. Co. of Hawaii, Ltd., 77 Hawaii 117, 135, 883 P.2d 38, 56 (1994).

In examining the plain language of the restitution statute, the HSC held that the losses by the victim must be (1) reasonable, (2) verified, (3) suffered as a result of the defendant’s conduct, and (4) requested by the victim. This does not exclude lost wages. Such an interpretation, according to the HSC, “harmonizes” with HRS § 706-646(3), which calls for an amount “sufficient to reimburse any victim fully for” the losses. Moreover, the list subsection (3) is an “inclusive list” that does not foreclose the possibility of other kinds of losses. See, e.g., State v. Mita, 124 Hawaii 385, 391, 245 P.3d 458, 464 (2010) (phrase “shall include but not limited to” is an “inclusive, rather than exclusive, list of examples”). And so the HSC held that the statute includes reasonable, verifiable, and requested lost wages that were caused by the defendant’s conduct.

Legislative History Notwithstanding. The crux of the issue came from the legislative history. Courts “do not resort to legislative history to cloud a statutory text that is clear.” State v. Kalama, 94 Hawaii 60, 64, 8 P.3d 1224, 1228 (2000). According to the HSC, it has “repeatedly declined to rely on legislative history where the plain language did not produce an absurd result[.]”

In this case, the HSC examined the legislative history of the restitution statute. The statute was promulgated in 1998. At that time, various committees in the Legislature debated the inclusion of “therapy and wage loss,” but it ultimately did not make it into the final version. Later, the statute was amended in 2006 to its current form. There was no express discussion on wage loss, but there was the general intent to have a defendant fully compensate victims for their losses. According to the HSC, “whatever the 1998 Legislature may have said, in accordance with the clear language of the statute as of 2006, reasonable and verified lost wages are to be included in a restitution award.”

Justice Pollack’s Dissent. Justice Pollack disagreed with the majority’s interpretation of the statute. For him, “it is apparent that the legislature intended to limit the types of financial injuries that are compensable under the statute.” And because it was not clear if lost wages are covered, it was necessary to resort of legislative history.

Justice Pollack wrote that the legislative history showed that the legislature intended to exclude lost wages. Moreover, the rule of lenity supports the exclusion of lost wages. Because the majority’s decision “broadens the statute’s coverage well beyond its understood application by courts and practitioners for nearly twenty years and in a manner that is manifestly contrary to the legislature’s intent,” he dissented and would have affirmed the ICA. Judge Perkins, who sat by reason of a vacancy, joined.

 So What Now? The HSC has held that the Legislature’s statute included wage losses—despite evidence in the legislative history that it should not be included. The dissenters argued that that is not what the Legislature intended. And so the HSC has moved the ball into the court of the Legislature. Does the Legislature want to amend the statute to “fix” the ruling? Is that the true intent? Perhaps. In a weird way this is how democracy works.

Thursday, September 24, 2015

Traffic Infractions Do not Bar Subsequent Prosecutions

Traffic Infractions Do not Bar Subsequent Prosecutions
State v. Kalua (ICA September 2, 2015)
Background. Manaiakalani Kalua received two citations: one for excessive speeding in violation of HRS § 291C-105(a)(1) and one for regular-kine speeding in violation of HRS § 291C-102(a)(1). Excessive speeding means the vehicle is going either 80 mph or more or the vehicle is in excess of 30 mph of the speed limit.

The two charges are based on two separate incidents. In the notice of traffic infraction, Officer T. Koyanagi measured Kalua’s speed by radar and stated that he was going 71 mph in a 55-mph zone and that Officer Koyanagi tried to stop him as the speed limit dropped to 40 mph. In that zone, Officer Koyanagi cited Kalua for going 73 mph, which formed the basis for the excessive speeding.

For the regular-kine speeding, Kalua had to answer the citation within 21 calendar days or the court would enter a default judgment. He paid the speeding ticket and the default judgment. Regular speeding is not a crime, but a traffic infraction. Excessive speeding, which is a criminal offense, required an appearance in court and the citation included a summons to the District Court.

Kalua did not answer the regular-kine speeding and a default judgment was entered. He also did not appear at court and a bench warrant was issued. Subsequently, Kalua appeared in the District Court after the warrant had been served. Kalua then filed a motion to dismiss the excessive speeding charge on the grounds that he had already paid the traffic infraction and could not be subsequently prosecuted for the same or similar conduct. The district court granted the motion. The State appealed.

Penal Code Prohibits Repetitive Prosecutions . . . The “defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.” HRS § 701-109(2). The statute is “designed to prevent the State from harassing a defendant with successive prosecutions where the State is dissatisfied with the punishment previously ordered or where the State has failed to convict the defendant.” State v. Servantes, 35, 38, 804 P.2d 1347, 1348 (1991).

. . . but the Traffic Code Exception. On the other hand, there’s an exception to this statute in the Traffic Code. De-criminalized traffic infractions are outside the Hawaii Penal Code and traffic infractions are adjudicated pursuant to HRS Chapter 291D. “In no event shall section 701-109 preclude prosecution for a related criminal offense where a traffic infraction committed in the same course of conduct has been adjudicated pursuant to this chapter.” HRS § 291D-3(d). According to the ICA, this statute is intended to ensure that the “procedures established for the expeditious and streamlined adjudication of non-criminal traffic infractions will no jeopardize or adversely affect the State’s ability to pursue prosecutions of crimes related to the non-criminal traffic infractions.”

The ICA held that the plain language of HRS § 291D-3(d) allows the prosecution for the criminal offense of excessive speeding to proceed even though Kalua paid his traffic ticket arising out of the same episode.

Harmonizing Fitzwater. In doing so, the ICA also rejected the District Court’s conclusion that State v. Fitzwater, 122 Hawaii 354, 227 P.3d 520 (2010), changed the way it should interpret HRS § 291D-3(d). Regular-kine speeding is considered a lesser-included “offense” to excessive speeding. State v. Fitzwater, 122 Hawaii at 357, 227 P.3d at 523. The ICA simply held that it didn’t matter if regular-kine speeding was included with excessive speeding. It does not bar the prosecution from bringing the excessive speeding charge.

Double Jeopardy isn’t at Issue Either. The ICA also examined wither the excessive-speeding prosecution violated the Double Jeopardy clauses. U.S. Const. Am. V and Haw. Const. Art. I, Sec. 10 (no person “shall . . . be subject for the same offense to be twice put in jeopardy”). Double Jeopardy protects defendants from “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Higa, 79 Hawaii 1, 5, 897 P.2d 928, 932 (1995). Relying on almost exclusively federal precedent, the ICA stated that it was “well-settled that the double jeopardy protections against successive prosecutions and multiple punishments only prohibit successive criminal prosecutions and multiple criminal punishments for the same offense. Helvering v. Mitchell, 303 U.S. 391, 399 (1938); Hudson v. United States, 522 U.S. 93, 99 (1997); Purcell v. United States, 594 A.2d 527, 529 (D. C. Ct. App. 1991).

When a Civil Penalty Becomes a Criminal Punishment . . . Based on that, the ICA held that if the regular-kine speeding infraction was civil in nature and not a criminal offense, then the Double Jeopardy clauses would not apply. To determine whether a statute and its punishment are civil or criminal requires an analysis. Even when the statute is not labelled as a criminal punishment and even when there is no jail involved, the court must still determine if “the statutory scheme was so punitive either in purpose or effect as to negate [the Legislature’s] intention” to keep it a non-criminal infraction. Tause v. State Dept. of Labor and Indus. Rel., 113 Hawaii 1, 31, 147 P.3d 785, 815 (2006).

The determination is based on seven factors: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been historically regarded as a punishment (as opposed to a civil infraction); (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned Id. at 32, 147 P.3d at 816.

According to the ICA the “sanctions” for regular speeding are not so punitive that it would transform the civil remedy intended by the Legislature into a criminal punishment. Speeding sanctions are primarily monetary. HRS §§ 291D-3 and 9, HRS § 291C-102 and 161. And so because they are not criminal penalties, Double Jeopardy is not at issue and is not affected by the subsequent prosecution. The dismissal order was vacated and the case remanded back to the District Court.


The Fitzwater Problem in Kalua’s Case. The ICA remanded the case back to the District Court. An interesting problem could play out. If regular speeding is a lesser-included offense, and if Kalua had already paid his ticket for the regular speeding, what would happen if the prosecution failed to prove the excessive speeding, but could prove the regular speeding? What happened to the Double Jeopardy analysis then? Would it merge with an already-paid traffic offense? Wouldn’t the District Court have to dismiss the excessive speeding charge all over again and not impose a new fine? Wouldn’t we back at the same place? Perhaps all will be revealed after remand.

Ditching your Attorney is Tougher than it Seems

State v. Phua (HSC June 30, 2015)
Background. Han Kamakani Phua was arrested and charged with harassment after the complainant and others came onto his property and Phua got into a non-violent quarrel with them. Phua appeared in the District Court of the Third Circuit with his lawyer and a Mandarin interpreter. He entered a not guilty plea demanded a trial. At the trial date, the interpreter didn’t show up so Phua requested a continuance. The prosecution objected and presented two witnesses. The witnesses testified that Phua could speak, understand, and communicate in the English language when he worked as a stock boy at Walmart and after he had been arrested. Phua’s witnesses testified that although he could speak English, the language is not his first language (Malay and Chinese are). He had a hard time with legal documents and legal principles. Judge Joseph Florendo of the District Court denied the motion.

At the end of the trial, the court found Phua guilty as charged, granted counsel’s request for a pre-sentence investigation report, and scheduled a sentencing hearing. Days before sentencing, Phua filed pro se a “Motion to Amend/Writ of Error” seeking the removal of the case to federal court as a civil matter. Following the pleading came a Declaration of Phua’s Counsel in which counsel stated that he was unavailable for the sentencing hearing due to another matter in Hilo, but filed the Declaration of Counsel instead of a motion to continue because Phua insisted that he attend the hearing without his lawyer. Counsel presented two options for the court and Phua: if Phua wanted to proceed with counsel, please consider this a motion to continue. If he did not, then please refer to the PSI. Counsel recommended no jail and presented a sentencing argument. Counsel finally noted that he did not receive the PSI from probation despite his request to have it faxed to him.

At the hearing, Phua appeared without his lawyer. The district court did not make any reference to the declaration of counsel. The sentencing hearing was not noted as a possible motion to continue. Instead, the district court asked Phua if he wanted to proceed without his lawyer. Phua responded that he “let my attorney go, and that’s why I have filed this document right in front of me that I have submitted to the Court.” The court asked Phua if he fired his attorney and Phua said yes. The Court asked again if Phua wanted to proceed without any lawyer and represent himself. The Court told him that if he could not afford an attorney one would be appointed for him. Phua said he was unaware of that, but still wished to proceed pro se. The Court engaged in a colloquy about his age, his education, and his understanding of certain rights.

At the sentencing, there was no mention if Phua received the PSI. When the prosecutor referred to the recommendation in the PSI, Phua objected and “moved to strike” the statement. The court asked if Phua had anything to say and Phua made a statement saying that he was moving to “amend slash writ of error” related to civil cases, sovereign rights, and that only the United States District Court has jurisdiction over him. The district court denied the motion and sentenced him to jail for five days and probation for six months. Phua appealed and the ICA affirmed.

The Right to Counsel Extends to Sentencing. It is well-established that the State and federal constitutions guarantee the right to counsel at sentencing. State v. Pitts, 131 Hawaii 537, 544, 319 P.3d 456, 460-61 (2014). When a defendant wants to represent himself pro se, the trial court must offer counsel and proof on the record that the defendant “voluntarily, knowingly, and intelligently rejected the offer and waived that right.” State v. Dickson, 4 Haw. App. 614, 619, 673 P.2d 1036, 1041 (1983).

Waiving the Right to Counsel and Going Pro Se: A How-To. The HSC adopted the Dickson analysis in determining if the trial court properly waived the right to counsel. The waiver inquiry is divided into three “areas”: (1) the particular facts and circumstances relating to the defendant that indicate the defendant’s level of comprehension; (2) the defendant’s awareness of the risks of self-representation; and (3) the defendant’s awareness of the disadvantages of self-representation. Id. at 619-620, 673 P.2d at 1041-42. According to the HSC, the trial court must first examine the facts and circumstances particular to the defendant to assess his or her level of comprehension. Once that’s done, the trial court can tailor its colloquy to ensure that it adequately covers the other two factors.

First Factor: Background and Comprehension of Defendant. Once the defendant expresses an interest in going pro se, the court should inquire about certain facts that will assist the court in determining the defendant’s level of comprehension. This would include facts like the defendant’s age, education, English language skills, mental capacity, employment background, and prior experience with the criminal justice system.

Here, the HSC held that the district court’s inquiry was “limited.” Although the court questioned Phua about his age and whether he attended high school, other information presented to the court suggested that further inquiry was necessary. Phua’s mother had testified at trial that he was a “special education” student, that he did not pass any elementary grade levels after the first grade, and repeated the sixth grade three times. The court was also on notice that Phua may have had trouble with the English language because it was his second language. A “language barrier” is a “salient factor” putting the court on notice that the defendant’s waiver may be less than knowing and intelligent. State v. Gomez-Lobato, 130 Hawaii 465, 471, 312 P.3d 897, 903 (2013). Finally, Phua had no prior experience with the criminal justice system—he had no prior record.

Second Factor: Risks of Self-Representation. Once the first factor has been analyzed, the court moves on to the second and third factors. Under the second factor, the court must alert the defendant to things like “the nature of the charge, the elements of the offense, the pleas and defenses available, the punishments which may be imposed, and all other facts essential to a broad understanding of the whole matter.” Dickson, 4 Haw. App. at 619-20, 673 P.2d at 1041. Here, the district court did not properly assess the second factor. According to the HSC, the district court failed to apprise Phua, who had little to no understanding of the criminal justice system, about the potential punishments that may be imposed.

The Third Factor: Disadvantages of Self-Representation. As for the third and final facto, the HSC noted that Dickson cautioned trial courts about informing defendants about the disadvantages of self-representation:

The trial court should inform the defendant: of his right to counsel, whether private or appointed; that self-representation is detrimental to himself; that he will be required to follow all technical rules and substantive, procedural, and evidentiary law; that the prosecution will be represented by able counsel; that a disruption of the trial could lead to vacation of the right to self-representation; that if voluntary self-representation occurs, the defendant may not afterward claim that he had inadequate self-representation.

Id. at 620, 673 P.2d at 1041-42.

Again, the HSC found that the colloquy in this case did not do enough. It did not adequately show that Phua was informed about the disadvantages of self-representation. It was not enough to have the district court simply ask Phua a series of yes-no questions without providing him an opportunity to express confusion or ask questions.

No Waiver and a Pre-Sentence Allocution Reminder. In addition to the Dickson analysis, the HSC held that Phua’s waiver of his right to counsel was critically deficient. The HSC noted that the district court’s failure to apprise Phua of the range of allowable punishment was enough to render the wavier invalid.

Lastly, the HSC noted that because it was going to remand for re-sentencing, it need not address the other issue on appeal: Phua’s right to address the court prior to sentencing. Nonetheless, the HSC took the time to remind courts that allowing the defendant to address the court prior to his or her sentencing is “essential to fair treatment.” State v. Chow, 77 Hawaii 241, 246-47, 883 P.2d 663, 668-69 (App. 1994).

Justice Nakayama’s Dissent and Concurrence. Justice Nakayama wrote separately. She agreed with the majority that Phua’s waiver was deficient because it was not knowing or intelligently done. She disagreed, however, with the majority’s analysis of the district court’s colloquy. Justice Nakayama wrote that the district court had done enough to determine that Phua knew what he was doing when he decided to proceed pro se. She pointed out that the district court asked Phua more than once if he understood that he had the right to an attorney and that Phua acknowledged this right even though he said that he was unaware of the right up until that point. As for inquiring into Phua’s background, Justice Nakayama believed that the district court had again done enough. Phua told the court that he was 31 and had a high school education. There was evidence that he worked at Wal-Mart and spoke English to his co-workers and customers there. And even though it would have been “ideal for the district court to reestablish all of this information on the record,” it is not—according to Justice Nakayama—constitutionally required. Judge Dean Ochiai, who stood in place of Justice Acoba, joined.

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.