State v. McKnight
(HSC December 31, 2013)
Background. Robert McKnight was charged with
electronic enticement and promoting child abuse in the third degree. McKnight
communicated with agent Vincente Domingo with the Attorney General’s office on
a chatroom. Domingo pretended to be a teenaged girl living on Oahu. Over
several months, McKnight communicated with Domingo via chatrooms, cellular
telephones, email, and telephone. The chats were intimate in nature and
included discussions of sexual acts. At one point, they discussed meeting in
person. McKnight agreed to purchase a ticket for Domingo from Oahu to Maui and
he would pick “her” up at the airport. On the meeting day, McKnight went to the
Kahului Airport where he was arrested by the police and special agents.
He was taken to the Wailuku Police Station and advised of
his Miranda rights. McKnight said he
wanted to talk to a lawyer. The agents left the room and conferred with another
agent and wondered if they could go back in there and ask for his address and a
description of his residence. The agents needed to get a search warrant for the
house. They convinced themselves that it was permissible and went back inside
the room with McKnight. McKnight asked what was going to happen next and
Domingo told him that they were going to “do a search warrant” of his house.
McKnight then said he changed his mind about giving a statement. They recorded
the interrogation and throughout it, McKnight asked if he could call his
mother. Domingo said he couldn’t promise anything. He continually asked if he
could call his mother. Again, Domingo did not promise anything. He made an
incriminating statement.
The agents then prepared a search warrant for the house and
presented the affidavit and warrant to District Court Judge Simone Polak. Judge
Polak approved the warrant and wrote in the wrong month on the date of issuance
to read: “This warrant may be served and the search made on or before July 16,
2006, a date not to exceed ten (10) days from the issuance of this search
warrant[.]” The warrant stated that the date of issuance was June 6, 2006. The
police searched anyway, confiscated a computer, and later found evidence
underlying the promoting child abuse charge.
McKnight moved to suppress his statement and the evidence
obtained at his house. The circuit court granted the motion and the prosecution
moved to sever the promoting child abuse charge and take that up on appeal
while it proceeded with the electronic enticement charge. At trial, the circuit
court instructed the jury that the offense constituted five elements and it did
not instruct the jury that it had to find beyond a reasonable doubt that
McKnight used a computer or other electronic device to travel to the
agreed-upon meeting place. McKnight was found guilty of the electronic
enticement count. McKnight appealed. Both appeals were consolidated. The ICA
affirmed the conviction, but vacated the suppression order. McKnight sought
certiorari.
A Badly-Divided Court. The HSC divided this case into three
distinct issues. What makes this case different is that for each section there
are divergent majorities and dissenters.
No Evidence of Computer Use
Required for Every Element of Electronic Enticement. McKnight argued that the circuit court
did not properly instruct the jury about the elements of electronic enticement.
Here’s how the statute is written:
Any person who, using a computer or other
electronic device:
(a) Intentionally or knowingly
communicates [with a minor or a person pretending to be a minor] and
(b) With the intent to promote or
facilitate the commission of a felony . . . [t]hat is an offense defined in
section 846E-1 . . . [a]grees to meet with the minor or [purported minor] and
(c) Intentionally or knowingly travels to
the agreed upon meeting place at the agreed upon meeting time; is guilty of
electronic enticement[.]
HRS § 707-756. McKnight argued that the statute clearly and
unambiguously requires proof that the person use a computer or other electronic
device to “travel to the agreed upon meeting place at the agreed upon meeting
time[.]” The HSC disagreed.
The Court’s “foremost obligation [in statutory
interpretation] is to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the language contained in
the statute itself.” State v. Kotis,
91 Hawaii 319, 327, 984 P.2d 78, 86 (1999). The plain language of the statute,
however, “does not preclude an examination of sources other than the language
of the statute itself even when the language appears clear upon perfunctionary
review. Were this not the case, a court may be unable to adequately discern the
underlying policy which the legislature seeks to promulgate and, thus, would be
unable to determine if a literal construction would produce an absurd or unjust
result, inconsistent with the policies of the statute.” Keliipuleole v. Wilson, 85 Hawaii 217, 221, 941 P.2d 300, 304
(1997).
According to the HSC, strictly interpreting the statute so
that some form of computer usage is required to travel to the meeting place at
the meeting time leads to an absurd result. The HSC went into the legislative
history of the criminal statute and found committee reports detailing the kinds
of factual scenarios that this statute was meant to criminalize. Those factual
scenarios did not require computer usage to travel to the meeting place at the
meeting time. Thus, the HSC held that even though the statute “appears to
require that a defendant use a computer or other electronic device to travel .
. ., a literal reading of this paragraph is absurd.” The HSC went even further
and held that computer or electronic use is only required to acts of
communication with the minor or purported minor. The other acts—agreement to
meet and traveling to meet—do not require it. The HSC reasoned that if the
legislature had intended to require a nexus of computer usage for the second
element of electronic enticement, “it could have structured the second
subsection more naturally[.]”
Chief Justice Recktenwald’s
Concurrence and Dissent.
The Chief Justice agreed in part, but also dissented here. He agreed that it is
absurd to require a computer or other electronic device to travel to the
meeting place. However, he disagreed that computer usage is not required for
the second element—agreeing upon a meeting place. There is nothing absurd about
requiring computer usage to set up a meeting place. After all, it is called electronic enticement. He also wrote
that the majority’s reliance on legislative history is misplaced. “It is a
cardinal rule of statutory interpretation that, where the terms of a statute
are plain, unambiguous and explicit, we are not at liberty to look beyond that
language for a different meaning.” State
v. Richie, 88 Hawaii 19, 30, 960 P.2d 1227, 1238 (1998). For the Chief
Justice, the circuit court erred in failing to instruct the jury that computer
usage was required to set up the meeting place and time. That error was not
harmless and a new trial was warranted. Judge Rom Trader joined.
Rejection of the
Plain-Language Rule.
This is certainly a new court when it comes to the plain language rule. For
some time, especially during the later years under the Chief Justice Moon, the
court had become more and more committed to a strict interpretation of
statutes. If the language is plain and unambiguous, then so be it. That’s how
it should be read. Now, it seems that this is not the case—at least not as
much. Determining when the court will stick to the plain language or when it
will depart and delve into legislative history to ascertain some alternative
meaning remains anybody’s guess.
The Statement was Properly
Suppressed. The HSC
unanimously held that the statement was properly suppressed. When the accused
invokes his or her right to counsel, all questioning in the custodial
interrogation must cease “until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or
conversations with the police.” Edwards
v. Arizona, 451 U.S. 477, 484-85 (1981). The accused can also waive his
rights by re-initiating communication with the police. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). Even then, the
questioning can continue only if the accused knowingly, intelligently, and
voluntarily waives his rights. State v.
Hoey, 77 Hawaii 17, 34-36, 881 P.2d 504, 521-23 (1994).
Here, the HSC held that McKnight clearly and unequivocally invoked
his right to counsel in the interrogation room and thus, the agents “were
prohibited from further questioning McKnight until an attorney had been provided
or McKnight voluntarily reinitiated communication.” Domingo respected that
right at first, but he later went back into the room to “obtain information he
hoped to use in a warrant application.” No attempt was made to find an
attorney. When McKnight asked what was going to happen next, Domingo said they’d
search his house with a warrant (even though they didn’t have one). Based on
the totality of these circumstances, McKnight never reinitiated contact and his
subsequent waiver of his Miranda rights
was not voluntarily given. Moreover, Domingo’s conduct and comment about the
search “were reasonably likely to elicit an incriminating response.” The
statement was obtained in violation of his constitutional rights.
The Execution of the Search
Warrant was Valid Despite the “Scrivener’s Error.” The Hawaii Constitution protects persons
from unreasonable searches, seizures, and invasions of privacy. Haw. Const.
Art. I, Sect. 7. A written search warrant must “command the officer to search,
within a specified period of time not to exceed 10 days, the person or place named
for the property to be specified.” HRPP Rule 41(c). Here, the warrant commanded
officers to search McKnight’s home not less than 10 days from the issuance of
the search warrant. The issuance date was wrongly written. The HSC held that
this was nothing more than a scrivener’s error and did not render the search
invalid. The HSC relied on cases from a variety of other jurisdictions in
support of this holding. State v. Dalton,
887 P.2d 379 (Or. Ct. App. 1997); Heard
v. State, 612 S.W.2d 312 (Ark. 1981); State
v. Shupper, 207 S.E.2d 799, 800-01 (S.C. 1974); State v. E.J.F., 999 So.2d 224, 231-32 (La. Ct. App. 2008); People v. Deveaux, 561 N.E.2d 1259, 1263-64
(Ill. App. Ct. 1990); State v. Steffes,
887 P.2d 1196 (Mont. 1994).
The HSC also looked at the underlying purpose of the
exclusionary rule. The exclusion of evidence promotes three purposes: (1)
judicial integrity; (2) the protection of individual privacy; and (3)
deterrence of illegal police misconduct. State
v. Torres, 125 Hawaii 382, 394, 262 P.3d 1006, 1018 (2011). According to
the HSC, the search of an otherwise valid warrant did not offend these
purposes. Thus, the erroneous issuance date did not make a difference in
searching the home.
Justice Acoba’s Dissent. Justice Acoba wrote that the invalid
issuance date rendered the search invalid. For Justice Acoba, this case
radically departs from well-established judicial precedent and introduces a “good
faith” exception to the warrant requirement. Our constitution affords greater
protections than the federal constitution’s Fourth Amendment. State v. Dixon, 83 Hawaii 13, 23, 924
P.2d 181, 191 (1996). Hawaii’s exclusionary rule, he wrote, should not
distinguish between police misconduct and judicial error. The constitution is
designed to protect individuals “against intrusions by the government.” State v. Kahoonei, 83 Hawaii 124, 129,
925 P.2d 294, 299 (1996). Justice Acoba wrote that this error was more than a
mere scrivener’s error. It invites officers executing the warrant to proceed at
their own peril when there are conflicting commands in the warrant itself. He
also wrote that all three of the underlying purposes to Hawaii’s exclusionary
rule were undermined. Judicial integrity is undermined for Justice Acoba. “An
error by the hand of either a police officer or a judge is not excused to the
detriment of privacy rights.” It shows that the government failed to abide by
its own laws. He also believed that the misconduct by the police was the
failure to read the warrant. Allowing the search “entirely exculpates the
police officer or officers who received the warrant from the judge and
proceeded to execute it, even though the discrepancy on the face of the warrant
should have been obvious to the officers.” Justice Acoba would have upheld the
suppression on these grounds. Justice McKenna joined.
Editor’s Note. I represented Mr. McKnight before the
ICA and the HSC.
