Traffic Stops and Nothing More Does not Justify a Canine Screen

State v. Alvarez (HSC June 30, 2016)

Background. Elujino Alvarez was driving a vehicle and stopped by the police because the police saw that one of the passengers was not wearing a seatbelt. The officers recognized Alvarez from prior unrelated drug investigations and called another officer to come to the scene with his police dog to conduct a canine screening on the car. They waited for the dog and the dog alerted to the presence of narcotics. Alvarez was arrested. The police obtained a search warrant for the car and found methamphetamine and drug paraphernalia. Alvarez moved to suppress the evidence. The motion was denied. Alvarez entered a conditional plea allowing to appeal the denial of the motion. The ICA affirmed the denial. Alvarez applied for a writ of cert.

Traffic Stops, the Fourth Amendment, and You. “A stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures.” State v. Estabillio, 121 Hawaii 261, 270, 218 P.3d 749, 758 (2009). A traffic stop is deemed “reasonable” when (1) the officer has reasonable suspicion to stop the vehicle and (2) the search that was “actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” State v. Perez, 111 Hawaii 392, 397, 141 P.3d 1039, 1044 (2006).

The first part is not in dispute. Officers had reasonable suspicion to detain Alvarez’s car. On eof the passengers was unbuckled. A traffic violation gives rise to detain the vehicle. State v. Kaleohano, 99 Hawaii 370, 378, 56 P.3d 138, 146 (2002). The second part, however, is problematic for the police.

The scope of a traffic stop is “truly temporary” and must “last no longer than is necessary to effectuate the purpose of the detention.” Estabillio, 121 Hawaii 270, 218 P.3d at 758. Not only must be limited in time, but it must be limited in intensity. The search must be limited to that which is justified by the stop.

The Detention Lasted Longer in Scope and Intensity. The HSC agreed with Alvarez that the traffic stop was excessive. Alvarez was stopped because a passenger was seen without a seatbelt. The officers saw no drugs or related paraphernalia. There was nothing justifying them to get a canine screen of the vehicle for drugs. The fact that a confidential informant told the officers that Alvarez was dealing crystal methamphetamine five days before the stop is not enough. The HSC vacated the conviction and remanded for further proceedings.

When the Tip CAN Justify the Search. The HSC expressly noted that he anonymous tip about drug dealing was not enough to keep Alvarez there and subject him and his car to a canine screen. However, there are circumstances when it can. According to the HSC, when the informant is known to law enforcement, courts can then determine if that person had reliable information in the past, or if there is an adequate factual basis that the person is a reliable informant. State v. Ward, 62 Haw. 459, 461, 617 P.2d 565, 567 (1980); State v. Joao, 55 Haw. 601, 602-604, 525 P.2d 580, 582-583 (1974).

Juveniles Cannot be Sentenced to Life Without Parole (but may be Sentenced to Life With)

State v. Tran (ICA July 14, 2016)

Background. Dat Minh Tran was seventeen years old in a car with his friends when they were involved in a chase through Waikiki with a red truck. Tran stood up from the truck and fired two shots at the red truck while standing in his car through the sunroof. He shot one of the people in the truck, but that person did not die. The second shot hit the truck’s radiator. The family court waived jurisdiction and he was tried as an adult for attempted murder in the first degree. He was found guilty. The circuit court sentenced Tran to life imprisonment without the possibility of parole. That was in 1997.

In the wake of three cases from the United States Supreme Court related to the sentencing of juveniles, Tran filed a petition to set aside his sentence. The petition was granted. After a hearing on the petition, the circuit court sentenced Tran to life with the possibility of parole. Tran appealed. Later, the Legislature amended the murder sentencing statute and prohibited courts from sentencing defendants to life without parole when the defendant was a juvenile at the time of the offense.

The Juvenile Sentencing “Trilogy” from SCOTUS. The ICA examined the three SCOTUS cases that set the backdrop for Tran’s petition and appeal. First, there’s Roper v. Simmons, 543 U.S. 551, 578 (2005), in which the high court held that sentencing offenders to death who were under the age of eighteen at the time of the offense was in violation of the Eighth Amendment’s prohibition against “cruel and unusual” punishment. The court held that unlike adults, juvenile offenders “cannot with reliability be classified among the worst offenders” and there was no constitutional justification for the death penalty in juvenile cases. Id. at 569-573. The SCOTUS looked into the matter further in Graham v. Florida, 560 U.S. 48 (2010). The court held that imposing a sentence of life without parole on juvenile offenders who did not commit homicide violated the Eighth Amendment. Id. at 69-70. Finally, the other shoe dropped in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), when the court extended the Graham prohibition and held that juveniles who did commit homicide cannot be sentenced to life without parole.

The Severability Test . . . The problem for the circuit court was how to sentence Tran after the SCOTUS declared sentences like his unconstitutional, but before the Legislature amended the statute. Tran argued that the entire statutory scheme is unconstitutional. However, there is a presumption that an entire statutory scheme is not constitutional and that only the offending portion is invalid. Ruggles v. Yagong, 135 Hawaii 411, 431, 353 P.3d 953, 973 (2015). This presumption can be overcome when something in the statute or history makes “it evident that [the Legislature], faced with the limitations imposed by the Constitution, would have preferred no statute at all to a statute with the invalid part excised.” Hamad v. Gates, 732 F.3d 990, 1001 (9th Cir. 2013). Parts that remain in the statute are (1) constitutionally valid; (2) capable of functioning independently, and (3) consistent with the Legislature’s basic objectives in enacting the statute. Id.

The Entire Sentencing Scheme is NOT Unconstitutional. The ICA held that the presumption of validity prevailed. The unconstitutional portion had been properly excised and Tran’s sentence was consistent with the new holdings of the SCOTUS. Moreover, the Legislature’s amendment shows precisely that it intended to preserve the rest of the statutory scheme.

When Friendly Officer Chit-Chat Becomes Interrogation

State v. Kazanas (HSC June 21, 2016)

Background. Kazanas was indicted with criminal property damage in the first degree and unauthorized entry into a motor vehicle in the first degree. During the early morning hours of November 1, 2011, Kazanas was taken to the hospital to treat injuries sustained to his hand. An officer accompanied him. The officer informed him that he was under arrest for UEMV “multiple times” but never apprised him of his constitutional right to remain silent, his right to attorney, and the admonition that anything he said could be used against him in a court of law. She did, however, instruct Kazanas not to talk about the case or “say anything about what he had been arrested for.”

At the hospital, Kazanas was making rude comments and other patients could hear him. The hospital staff moved him away from the other patients. A police officer sat about six feet away from him. Wanting to keep his mind off of other things and wanting to calm him down, the officer asked Kazanas if he enjoyed Halloween night and what costumes he saw. Kazanas made two non-responsive statements. First he said “I wouldn’t have to punch people if they didn’t upset me.” He also told her that “If you didn’t catch me now for this, you would’ve caught me later for something else.”

Before trial, the parties litigated the voluntariness of the statements. The circuit court concluded both were voluntary and that Miranda warnings were unnecessary, but that the second statement was unduly prejudicial and would not be admissible.

At trial a different officer testified that on Halloween night he was on patrol in Waikiki when he saw Kazanas. He recognized him because years before, back in 2005, he was involved in a case in which Kazanas had fallen from a nine-story building and lived. The officer would never forget that. The officer saw Kazanas hit a window to a car stuck in traffic with something in his hand. The glass shattered. He ran to the driver’s side window and started punching the driver.

The complainant testified that he was sitting in his car when a guy came up to him, hit his car, broke the windshield, and hit him in the face. He was not certain who the assailant was and on cross-examination admitted that he didn’t believe that Kazanas was the person who attacked him. The officer from the hospital testified too.

The defense called two of Kazanas’s friends who testified that he was not the guy who broke the windshield and assaulted the driver. Then Kazanas testified. He testified that he was not physically capable of such an attack because of his nine-story fall back in 2005. He denied being the offender.

After he testified, the prosecution requested that it present evidence of prior bad acts of physical abuse and assault that occurred after the 2005 fall. The circuit court granted the request over objection. Kazanas was acquitted of the property damage count but convicted of UEMV. He was placed on probation with 90 days jail. He appealed and the ICA affirmed.

Fifty Years of Case Law: Custodial Interrogation Requires Miranda Warnings. “No person shall . . . be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. See also U. S. Const. Am. V. These protections require that “before the State may use statements stemming from custodial interrogation, it must first demonstrate the use of procedural safeguards effective to secure the privilege against self-incrimination.” State v. Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-284 (1985). The “procedural safeguards” including warning the accused about the right to remain silent, that anything said can be used against him or her in a court of law, the right to an attorney, and that if no attorney can be afforded, an attorney would be appointed for him or her. State v. Ketchum, 97 Hawaii 107, 116, 34 P.3d 1006, 1015, (2001). See also Miranda v. Arizona, 384 U.S. 436 (1966). If the statement was made in violation of this rule, it cannot be used at trial—neither as direct evidence or even impeachment evidence. State v. Hoey, 77 Hawaii 17, 33, 881 P.2d 504, 520 (1994).

There is no question in this case that Kazanas was in custody while at the hospital under guard from the officer. The issue was whether the officer engaged in an interrogation.

The Conversation in the Hospital was an “Interrogation.” An “interrogation” for Miranda purposes arises when police know or should have known that their words or conduct were reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This standard was adopted for the Hawaii Constitution in State v. Paahana, 66 Haw. 499, 502-503, 666 P.2d 592, 595-596 (1983).

The HSC majority held that the officer in the hospital “interrogated” Kazanas. The officer may not have asked if he punched the guy in the car and broke the windshield, but she did ask him how his Halloween went. The officer knew exactly how Kazanas’ Halloween went: he was arrested and transported to the hospital under police escort. According to the majority, it was “reasonably likely” that Kazanas would elicit an incriminating response. The majority pointed out that even if the officer just wanted to calm Kazanas down and had no intention of getting a confession, “her role as a police officer rendered her part of a system that was adversarial to Kazanas at that moment, and engaging in a conversation at that point could not be ‘solely in his interest.’” Because there was no Miranda warning before the small talk, it is inadmissible at trial and the trial court and the ICA erred in allowing it to be used by the prosecution.

Prior Bad Acts Properly Admitted Because the Defendant Opened the Door. The HSC examined Kazanas’ challenge to the use of his prior bad acts. “When evidence of other crimes, wrongs, and acts [under HRE Rule 404(b)] is offered by the prosecution, the problem for the trial court is one of classifying and then balancing, if necessary . . . the prejudicial impact of the evidence with its probative worth.” State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041 (1988).

Here are the factors used by the trial court when balancing:

[T]he strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

Id.

The HSC held that the circuit court did not abuse its discretion in allowing evidence of the 2007 assault. The 2007 assault included facts that Kazanas ran up to people, punched them in the face, ran from the police, and jumped a fence to escape—acts that Kazanas testified that he could not do because of the fall in 2005. Kazanas clearly opened the door here.

The other case, abuse of family or household member in 2007, involved striking a victim with a cane. This is very different from the running, punching, and jumping he claimed that he could not do. That evidence was not needed an abuse of discretion. Moreover, the HSC held that the fact that Kazanas struck a woman in the face with a cane “carried with it the potential to rouse the jury to overmastering hostility” against him.  Evidence of punches to an different assault in 2006 was also unnecessary since the first case—the 2007 assault—was already coming in.

Justice Nakayama’s Dissent. For Justice Nakayama, took issue with the majority’s articulation of the standard defining “interrogation” for Miranda. This was not simply an objective standard in assessing whether the officer’s conduct was reasonably likely to elicit an incriminating response. Justice Nakayama wrote that the trial court assesses whether “interrogation” takes place is based upon a totality of the circumstances. Under this totality-of-circumstances-test, the “ultimate question” is the reasonable-likelihood-of-an-incriminating-response question. This is not a matter of semantics. By focusing only on the latter part, the majority disregarded all of the surrounding circumstances, including whether the accused had had prior law-enforcement contacts, the time, length of questioning, nature of the questions, and other factors. On top of that, Justice Nakayama wrote that the officer’s conduct did not arise to an “interrogation” and would have affirmed the ICA. The Chief Justice joined.

The Intricacies of the Felon-In-Possession Statute

State v. Frazer (ICA May 13, 2016)

Background. Michael Frazer was indicted with one count of promoting a dangerous drug in the first degree and violation of a protective order. He pleaded guilty to both counts and moved for a conditional discharge pursuant to HRS § 712-1255. The circuit court granted the motion and placed him on probation for five years in count one and two years on count two.

Four years later, Frazer gets charged with one count of first-degree terroristic threatening with use of a dangerous weapon—a semi-automatic firearm and one count of possession of a firearm while “under indictment” for a felony pursuant to HRS § 134-7(b). Frazer moved to dismiss count two on the grounds that he was not “under indictment” and the circuit court agreed. In its order granting the motion, the circuit court concluded that a person who has been granted a conditional discharge is neither “under indictment” nor convicted. The circuit court limited the language of “under indictment” to pretrial status of the defendant. The circuit court also ruled that as an alternative dismissal was warranted under its inherent powers articulated in HRS § 603-21.9(6). The circuit court reasoned that there was no way the prosecution could prove that at the very least Frazer recklessly disregarded the risk that he was “under indictment.” The prosecution appealed.

“Under Indictment” Means On Probation. The ICA agreed with the prosecution that Frazer was “under indictment.” Here’s HRS § 134-7(b):

No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

According to the ICA, the plain language of the statute prohibits possession of firearms to those who are “under indictment” of a felony—that is, those who have been charged, but not adjudicated of a felony. Not only was the language plain for the ICA, it also found supportive legislative history.

But What about Conditional Discharge? The ICA next examined the particular challenge of a person on probation by way of conditional discharge. Conditional discharge means that the defendant is found guilty and placed on probation, but can later seek expungement of the conviction once he or she has completed the terms of probation. HRS § 712-1255.

Normally, a Deferral or Conditional Discharge is not a “Conviction.” According to the ICA, Frazer was not charged with being a convicted felon in possession of a firearm, but only under indictment. However, the ICA reasoned that it would make no sense for a person to be “under indictment” and then later be found guilty pursuant to the conditional discharge statute or plead guilty pursuant to a deferral agreement and be out of the scope of the felon-in-possession statute. However, the Hawaii Supreme Court in State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985), held that a deferral plea and sentence is not a “conviction” for purposes of HRS § 134-7(b). Thus, based on that logic, the ICA extended the exception to conditional discharges. A person sentenced to probation under the conditional discharge statute is not considered “convicted” for the felon-in-possession statute.

But What about Being “Under Indictment?” The ICA moved on to consider the other question: whether the same exception extends to those who were “under indictment.” The ICA held that the Ritte exception did not apply. According to the ICA, the fact that Frazer had been serving a conditional discharge sentence and was “under indictment” of a separate felony and that he was within the felon-in-possession scope. The ICA vacated the dismissal order and remanded for further proceedings.

Sometimes “Reasonable Removal” means no Removal at all.

State v. Bowman (HSC May 9, 2016)

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

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

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

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

(a) No vehicle shall be moved on any highway, unless the vehicle is so constructed, covered, or loaded as to prevent any of its load other than clear waters or feathers from live birds from dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom, except that sand may be dropped for the purposes of securing traction, or water or other substance may be sprinkled on a highway in cleaning or maintaining the highway.

. . . .

(c) Vehicles carrying agricultural produce from fields during harvesting shall be exempt from the requirements of this section, but the owner of the vehicle must provide a reasonable removal of all such produce spilled or dropped on the highway.

HRS § 291C-131.

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

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

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

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

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

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

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

Tightening the Reins on Expert Testimony

State v. Kony (HSC May 4, 2016)

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

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

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

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

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

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

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

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

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

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

How to NOT Preserve an Issue on Appeal . . .

The HSC took pains to explain the exact specifics surrounding the lost appellate issue:

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

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

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

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

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

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

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

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

State v. Williams (ICA February 29, 2016)

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

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

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

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

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

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

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

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

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

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

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

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