Statements that were Never Raised at Trial Cannot be Presented during Argument

State v. McGhee (HSC June 21, 2017)

Background. Jamal McGhee was charged with terroristic threatening in the second degree. HRS § 707-717(1). McGhee waived his right to a jury trial. At trial, Edithe Kearney testified that she owns the Alley Cat club on Oahu. She testified it’s a small place and the club does not get loud. One day, McGhee came in at around 2:00 a.m. He was upset at an Alley Cat employee at the front door. She testified that McGhee was yelling, screaming, and threatening everyone in the bar. He was saying things like he can “kill me, can beat me up, that sort of thing.” Keaney felt threatened by these remarks and called the police because he would not calm down. The police showed up, but by then McGhee was gone. On cross-examination, Kearney testified that she wasn’t actually afraid of McGhee. “I mean, I’m almost 70. I’m not afraid to be—if he wants to kill me, kill me.” The district court denied McGhee’s motion for judgment of acquittal. McGhee testified that he went to the Alley Cat to meet his girlfriend. He stood outside the club and did not see Kearney at first because it was dark. He said that he avoided Kearney because she always called the police on him.

During rebuttal, the prosecutor argued that “although this wasn’t raised as evidence in this case,” it pointed to a written statement adopted by Kearney that verified she was afraid of McGhee. Defense counsel allowed the prosecutor to read it. The trial court found McGhee guilty and sentenced him to one year of probation. He appealed and the ICA affirmed, but Chief Judge Nakamura dissented.

Just to be Clear: this is the Scope of Closing Argument. The HSC took pains to clearly define the scope of closing arguments for the parties. The prosecutor (and defense counsel) may “draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence,” State v. Nofoa, 135 Hawaii 220, 228, 349 P.3d 327, 335 (2015). The parties are also free “to state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence.” State v. Quitog, 85 Hawaii 128, 145, 938 P.2d 559, 576 (1997). However, arguments “must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor's conduct.” State v. Rogan, 91 Hawaii 405, 413, 984 P.2d 1231, 1239 (1999). In other words, “[c]losing arguments are not the place to introduce new evidence outside the safeguards of the Hawaii Rules of Evidence.” State v. Basham, 132 Hawaii 97, 113, 319 P.3d 1105, 1121 (2014).

Presenting the Written Statement at Rebuttal was Improper. The HSC examined the reading of the written statement under this standard and it was apparent that it was not part of the evidence presented at trial. The statement—that Kearney was afraid of McGhee—could not have been inferred from the evidence at trial either.

The ICA Erred in Concluding the Statement was Irrelevant to Terroristic Threatening. The HSC also took on the ICA’s conclusion that the statement of being actually afraid of McGhee was irrelevant. Terroristic threatening means threatening “by words or conduct to cause bodily injury to another in reckless disregard of another.” HRS § 707-715. It also requires the “intent to terrorize or in reckless disregard of the risk of terrorizing, another person.” Id.

“Actual terrorization is not a material element although it is evidence of the occurrence of the material elements.” State v. Nakachi, 7 Haw. App. 28, 32, 742 P.2d 388, 391 (1987). The HSC took issue with the ICA’s conclusion that the written statement was irrelevant. Although it is not a material element, the evidence certainly is relevant to show threats with the intent to terrorize or in reckless disregard of the terrorizing. It could also be used as evidence of a “true threat.” See State v. Valdivia, 95 Hawaii 465, 476, 24 P.3d 661 ,672 (2001). And so, the ICA was wrong to conclude that the statement of fear was irrelevant.

The Improper Statement by the Prosecutor Warranted a new Trial. A prosecutor’s improper statements in a closing argument warrants a new trial when “there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Tuua, 125 Hawaii 10, 16, 250 P.3d 273, 279 (2011). Assessing whether an improper statement is harmless beyond a reasonable doubt hinges on three factors: (1) the nature of the conduct; (2) the promptness or lack of curative instruction; and (3) the strength or weakness of the evidence against defendant. Id. at 15-16, 250 P.3d at 278-279. The HSC applied all three factors.

First, the nature of the conduct weighed in favor of new trial. The prosecutor’s statement referred to evidence that was never presented at trial and during rebuttal argument—when there was no possibility that McGhee could respond. Second, the HSC noted that because this was not a jury trial—the lack of a curative instruction was inapposite. Instead, the HSC inquired if the trial court “disregarded or did not consider” the improper statement. There was no indication on the record if the trial court considered it or not and because it was impossible to determine, it weighs against harmlessness. Finally, the HSC noted that this case hinged on conflicting testimony between Kearney and McGhee. “In close cases involving the credibility of witnesses, particularly where there are no disinterested witnesses or other corroborating evidence, this court has been reluctant to hold improper statements harmless.” State v. Tuua, 125 Hawaii at 17, 250 P.3d at 280. This was such a case. Accordingly, the HSC vacated the judgment and remanded for new trial.

Confrontation Clause Trumps Prohibition of Immigration Status at Trial

State v. Acacio (HSC June 15, 2017)

Background. Rainier Acacio was charged with terroristic threatening in the first degree and abuse of a family or household member. The complainant was his ex-girlfriend. At his jury trial, his ex-girlfriend testified that they were living together for two and a half years before breaking up. She testified that she still lived with him even though they were no longer in a relationship.

She testified that on New Year’s Eve, they hosted a party. After the party, while she was right outside the house, she received a call from Acacio, who was inside the house. They exchanged New Year’s greetings and the call ended. The party ended and the complainant went to her room to get ready for bed. Acacio came into her room, closed the door, and said he wanted to fix the relationship. She said that it was over between them and Acacio got “mad and emotional.” Acacio said he was going to kill himself. The complainant said, “go ahead, it’s not my fault.” Acacio left and came back with a kitchen knife. He said that he “changed his mind,” pointed the knife at her, and said, “I will kill you.” The complainant knocked the knife out of Acacio’s hand. Acacio grabbed her face and punched her in the stomach. The complainant locked herself in the bathroom and called 911.

During the cross-examination of the complainant, Rainier’s attorney tried to bring up her knowledge of Rainier’s immigration status, that she knew he was not a citizen of the United States, and that if arrested, he could “sent back to the Philippines.” The prosecution objected and the circuit court sustained it. At later points in the trial, Rainier moved for a reconsideration of the ruling and asked that the complainant be recalled. The request was denied. Acacio testified. He admitted to bringing the knife into the room “to show her that I will kill myself,” but he never pointed it at her. He was found guilty and sentenced to probation. Acacio appealed and the ICA affirmed.

The Right to Confront your Accuser. “The accused’s right to demonstrate the bias or motive of prosecution witnesses is protected by the sixth amendment to the United States Constitution, which guarantees an accused, inter alia, the right to be confronted with witnesses against him or her.” State v. Balisbisana, 83 Hawaii 109, 115, 924 P.2d 1215, 1221 (1996). The main purpose of the confrontation clause is “to secure for the opponent the opportunity of cross-examination, . . . [and] the exposure of a witness’ motivation in testifying[.]” Id. Moreover, the credibility of any witness may be attacked with evidence of bias, interest, or motive. HRE Rule 609.1(a). Such evidence is always relevant. State v. Levell, 128 Hawaii 34, 40, 282 P.3d 576, 582 (2012).

For the HSC, determining a violation of the right to show bias or motive on the complainant is a two-step analysis. First, the court must determine if “the jury had sufficient information from which to make an informed appraisal of [the complainant’s] motives and bias[.]” State v. Balisbisana, 83 Hawaii at 116, 924 P.2d at 1222. Once that threshold issue is met, the court can consider if its probative value is outweighed by the danger of unfair prejudice. Here, the HSC held that the first step was never taken.

The Threshold Issue: Give ‘em a Chance to Show Bias or Motive. The trier of fact needs sufficient information to make an informed appraisal of the complainant’s motives and biases. The HSC assessed prior cases and held that “in order to satisfy the confrontation clause, a defendant must be given the opportunity to cross-examine a witness as to his or her bias or motive.” Here, the circuit court did not. Acacio wanted to show that the complainant knew or believed that if arrested for abuse or anything, he’d be deported and removed from her life in Hawaii. He’d be sent to the Philippines. Without this knowledge or belief, the jury was unable to make a meaningful appraisal of the complainant’s bias or motive. Accordingly, the first step was not met and Acacio’s confrontation rights were violated.

Even if it Wasn’t Violated, the Rule 403 Analysis is Wrong. To guide lower courts, the HSC took up the second step: even if the jury was afforded enough information to appraise the complainant’s bias or motives, the circuit court erred in its 403 balancing analysis. Relevant evidence may nonetheless be excluded when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” HRE Rule 403.

The HSC examined this issue and noted that although the defendant’s immigration or citizenship status is almost always irrelevant, that’s not the issue here. Acacio’s immigration status was wanted by the defense to show a bias and motive to undermine the credibility of the complainant. The circuit court erred in refusing to allow him present this evidence even though he suggested a limiting instruction. Thus, the circuit court erred in this respect too.

Nor was the Issue Harmless. Finally, the HSC addressed whether this deprivation was harmless beyond a reasonable doubt. Balisbisana, 83 Hawaii at 117, 924 P.2d at 1223. It was not. The HSC held there was a reasonable possibility that undermining the right to confront the complainant about her bias or motive to fabricate her testimony and get Acacio deported was not harmless beyond a reasonable doubt. She was the only eye witness. The case turned on the credibility of Acacio and her. Jurors needed to evaluate her credibility and presenting evidence of a motive to fabricate goes directly to that. Accordingly, it was not harmless. The case was remanded for new trial.

When Building Trust turns to Custodial Interrogation

State v. Trinque (HSC May 25, 2017)

Background. The Kauai Police Department got word of marijuana growing in a pasture in Kilauea. One night the officers were conducting surveillance when they found Rick Trinque and another in a pasture. They were arrested and handcuffed and sat on some rocks while KPD took pictures of them. As one of the officers escorted Trinque out of the pasture, one of them asked him how he got into the filed. He told them “he came over the fence by the banana tree using a ladder that was still located by the fence and that he was caught red handed.” Once out of the pasture, he sat on a bench handcuffed.

One of the vice officers was ordered to watch over Trinque. Lt. Richard Rosa was in plain clothes and had a badge around his neck. He had never met Trinque before. He identified himself to Trinque and told him that he was the officer that worked on his daughter’s case. (Trinque’s daughter went to the police and asked for their help because she believed that people were trying to assault her father.). Lt. Rosa said that if Trinque didn’t’ believe it, he could ask his daughter about it. Lt. Rosa added that “he would not lie to him” and that he was not going to “jerk his chain.” He told Trinque he would be “completely honest with him.” Trinque sat there listening and did not respond. Lt. Rosa told Trinque then said that Trinque should not to say anything until they got back to Lihue at the police station. Trinque responded: “What for? You caught us red handed, there’s nothing left to say, times are hard and we need the money.”

Once in Lihue, Lt. Rosa and other officers took Trinque to an interrogation room and advised him of his rights. Trinque told them that he wanted an attorney. Then they asked if he wanted to make a statement. He said he did not since “he got caught red-handed and was going to jail anyway.”

Trinque was indicted for commercial promotion of marijuana in the first degree and paraphernalia. HRS §§ 712-1249.4(1)(c) and 329-43.5(a). The prosecution filed a motion to determine the voluntariness of Trinque’s three statements: the one in the field; the one on the bench; and the one in Lihue. Trinque filed a motion to suppress the statements. The circuit court suppressed all three. The prosecution appealed and the ICA, in a published opinion, vacated the suppression order. Trinque petitioned for certiorari.

The Hawaii Constitution and Statements to the Police. “No person shall be . . . compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. This provision requires that before a defendant’s statements arising from a “custodial interrogation” are used at trial, Miranda warnings to the suspect must be given first. The unlawfulness in obtaining the first statement in the pasture is undisputed and the HSC examined the remaining two.

The Statement on the Bench: a Trust-Building Tactic is “Interrogation.” A statement made without Miranda warnings and waiver of them is not admissible at trial when the “statement was the result of (1) ‘interrogation’ that occurred while he or she was (2) ‘in custody.’” State v. Kazanas, 138 Hawaii 23, 35, 375 P.3d 1261, 1273 (2016).  There’s no question that when Trinque was cuffed and sitting on the bench being watched over by Lt. Rosa, he was in custody. The question is whether Lt. Rosa engaged in an “interrogation.”

Interrogation includes “not only . . . express questioning, but also . . . any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” State v. Joseph, 109 Hawaii 482, 495, 128 P.3d 795, 808 (2006). And so an “interrogation” is “any practice reasonably likely to invoke an incriminating response without regard to objective evidence of the intent of the police.” Id.

The HSC examined the circumstances surrounding this statement on the bench. Trinque had been arrested and handcuffed in the pasture, ordered to sit on a rock while they took pictures of him. Then they brought him out of the pasture and told him to sit on a bench. Lt. Rosa comes up to him and introduces himself. Then he tells him that he worked on his daughter’s case and that if he didn’t believe him, ask her about it. Lt. Rosa repeatedly offered personal assurances about his trustworthiness—he was going to be “completely honest with him” and that he “wouldn’t jerk his chain”—before telling him not to say anything before they get to Lihue.

According to the HSC, although introducing himself to the suspect would be a “normal procedure that typically attends arrests,” the rest of it was “an attempt to erode Trinque’s guard so that Trinque would freely talk in a manner that would incriminate himself.” There was no other reason to get Trinque to open up. By telling Trinque that he was assisting his daughter, Lt. Rosa appeared to offer Trinque some assistance as an ally in an otherwise adversarial position.

Moreover, at the hearing on the motion, Lt. Rosa testified that his words and conduct were to merely identify himself as a police officer because he was unshaven and in civilian clothes. The HSC noted that Lt. Rosa’s intent is not determinative when determining an “interrogation.”

. . . And he Misled the Suspect by Using the Word “Until.” The HSC additionally noted that Lt. Rosa misinformed Trinque about his constitutional rights. After giving assurances that the could be trusted, Lt. Rosa told Trinque not to say anything “until” they got back to Lihue. This gave Trinque the impression that he might as well talk now on the bench since making a statement was inevitable. After all, Trinque’s response was “what for?,” which suggested to the HSC that Trinque did not fully understand that he had the right to refuse any and all questions.

The Third Statement—the one at the Police Station—is a Fruit of the Poisonous Tree. The fruit of the poisonous tree (FOPT) doctrine “prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.” State v. Fukusaku, 85 Hawaii 462, 475, 946 P.2d 32, 45 (1997). The prosecution has the burden of showing an independent alternative to the illegality in order to use the evidence at trial. “In other words, the ultimate question that the fruit of the poisonous tree doctrine poses is as follows: Disregarding the prior illegality, would the police nevertheless have discovered the evidence?” State v. Poaipuni, 98 Hawaii 387, 393, 49 P.3d 353, 359 (2002).

The “Sufficiently Attenuated” Test? In this case, the question is whether the third statement at the Lihue station would have been said and obtained by the police had the police not violated Trinque’s rights in obtaining the first two. According to the HSC, whether a statement is sufficiently attenuated from the illegality depends on the facts of the case and relevant factors include: “(1) the temporal proximity between the official misconduct and the subsequently procured statement or evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” See State v. Eli, 126 Hawaii 510, 524, 273 P.3d 1196, 1210 (2012); State v. Mariano, 114 Hawaii 271, 281, 160 P.3d 1258, 1268 (App. 2007).

Here, the HSC upheld the circuit court’s ruling and held that the prosecution failed to meet its burden in showing that the subsequent statements were not fruits of the poisonous tree. It specifically failed to show that the third statement would have inevitably been uttered regardless of the first two; the fact that they do not refer to each other is not dispositive of showing attenuation; no intervening circumstances indicated that the taint of the first two statements had dissipated by the time the third one was uttered; the lapse in time and location was not dispositive; and finally, advising Trinque of his constitutional rights did not attenuate the unlawfulness. Thus, the final statement was a fruit.

Statutory Exceptions are Defenses, not Elements but Tachibana Error Warrants new trial

State v. Castillon (ICA May 31, 2017)

Background. Michelle Helen Castillon was charged with driving without a license in violation of HRS § 286-102. At trial, the prosecution proved that Castillon did not have a valid Hawaii driver’s license on the day she was seen driving a car on a public road. There was no evidence that Castillon had been issued a valid driver’s license from Canada or Mexico. The district court convicted her and she appealed.

DWOL and its Exceptions. “No person . . . shall operate any category of motor vehicles . . . without first being appropriately examined and duly licensed as a qualified driver of that category of motor vehicles.” HRS § 286-102(a). There are exceptions for any person possessing a license “that is equivalent to a driver’s license issued in this State but was issued to the person in another state of the United States, the Commonwealth of Puerto Rico, United States Virgin Islands, American Samoa, Guam, a province of the Dominion of Canada, or the Commonwealth of the Northern Marianas” or “a valid commercial motor vehicle driver’s license issued” by any state in the United States, province of Canada, or Mexico. HRS § 286-105(3) and (4).

An Element or a Defense? The ICA rejected Castillon’s argument that these exceptions were essential elements to the offense that had to be proven at trial. Generally, when an exception is “embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case.” State v. Nobriga, 10 Haw. App. 353, 357-358, 873 P.2d 110, 112-113 (1994). But when the exception lies “peculiarly within the knowledge of the defendant, or the evidence concerning them is within the defendant’s private control,” or “when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense.” Id. The HSC applied this framework in State v. Lee, 90 Hawaii 130, 976 P.2d 444 (1999).

Here, the ICA held that the Canadian or Mexican driver’s license exception is not an element and is a defense to be established first by the defendant. The ICA reasoned that the exceptions come in an entirely separate statute and part of the traffic code. It also reasoned that “given the large number of statutory exceptions, and the relatively small number of drivers who would appear to qualify for the exceptions when compared to those who need a valid Hawaii driver’s license to drive, it would be absurd to require the prosecution to disprove all the possible exceptions in every case” of DWOL. The ICA also reasoned that this kind of knowledge—having a license from another country or from another state—is certainly within the knowledge of the defendant. Having established it was a defense and not an element, the ICA examined the record and noted that Castillon did not meet her burden of production in presenting any prima facie case that she would have a license from Canada or Mexico. Thus the burden of proof never shifted over to the prosecution to disprove the exception and “negative” the defense.

The Constitutional Problem with her Waiver of her Right to Testify. Castillon’s case, however, had a constitutional issue. After the State rested its case at trial, the trial court addressed Ms. Castillon and informed her about her right to testify. The colloquy was interrupted by defense counsel who informed the court that she did not want to testify. The district court said, “okay” and ended the inquiry.

The Due Process Clause in the Hawaii Constitution requires the trial court to engage in a true and personal colloquy with the defendant about his or her right to testify. Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293 (1995). The inquiry must be personally addressed to the defendant and the court cannot rely on the representations of counsel for this one. State v. Staley, 91 Hawaii 275, 287, 982 P.2d 904, 916 (1999). Thus, the ICA held that the district court did not obtain a constitutionally-sufficient waiver of Castillon’s right to testify in her own defense. Nor was the error harmless beyond a reasonable doubt. See State v. Hoang, 94 Hawaii 271, 279-280, 12 P.3d 371, 379-380 (App. 2000) (“it is inherently difficult, if not impossible, to divine what effect a violation of the defendant’s constitutional right to testify had on the outcome of any particular case.”). The ICA vacated the judgment and remanded for new trial.

The “Anticipatory” Search Warrant must have a “Triggering Event” (in Hawaii).

State v. Curtis (HSC May 15, 2017)

Background. A FedEx employee in Honolulu opened a package suspected to contain narcotics. The package was addressed to a “Jennifer Robertson” at an address on Kauai. FedEx notified the DEA, which notified the Kauai Police Department. KPD determined that the package contained eight pounds of marijuana. The police, with court approval, installed a tracking device in the package that would inform them where the package was located and when it would be opened. The police also applied for an anticipatory search warrant to search the premises.

In the application for search warrant, the police stated that it planned to conduct a controlled delivery of the package. Once it was determined where the package would be sent, received by persons wanting it, and opened, the police sought authorization to search within 48 hours of delivery of the package that premises—wherever that may be. The anticipatory search warrant was issued. The warrant authorized the police to search the premises “forthwith” and also allowed the police to search “within 10 days of” the date of the authorization.

That same day, KPD conducted a controlled delivery. A police officer posing as a FedEx delivery person delivered it at the address on the package. Jason Curtis received the package. The officer-deliveryman saw Melissa Hall in the house and asked if that was “Jennifer Robertson.” Curtis said it was and signed the package. Five minutes after delivery, the device indicated that the package had been opened. In response, the police went to the house and searched it. They seized the marijuana in the package, some paraphernalia in the house, and $1,000 cash. Curtis, Hall, and another person in the house, Genevieve Walker, were charged with commercial promoting of marijuana in the 2d degree, paraphernalia, and promoting a detrimental drug in the 2d degree.

Curtis and Hall moved to suppress the evidence obtained in the case on the grounds that the anticipatory warrant was unconstitutional. The circuit court denied the motion, but noted that the search warrant itself was “very, very sloppy and apparently hastily put together.” Curtis and Hall entered amended no-contest pleas reserving the right to appeal. They were fined $5,000. The charges against Walker with dismissed. Curtis and Hall appealed. The ICA affirmed. Curtis and Hall petitioned for cert.

The “Anticipatory” Search Warrant is not a Violation of the Fourth Amendment. In United States v. Grubbs, 547 U.S. 90 (2006), the Supreme Court of the United States observed that an anticipatory warrant is “a warrant based on an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” Id. at 94. An anticipatory warrant authorizes a search after a “triggering event,” i.e. after the occurrence of a specific future event, such as the delivery of a package. Id. Thus, it is issued before the necessary events happen and if that event does not happen, the warrant is void. State v. Scott, 87 Hawaii 80, 80 n. 1, 951 P.2d 1243, 1243 n. 1 (1998).

Law enforcement tried anticipatory search warrants in the 1990s in Scott, and even though the ICA initially recognized its constitutionality, the HSC quashed it on statutory grounds. The HSC held that HRS § 803-31 and HRPP Rule 41(a) prohibited anticipatory search warrants because HRS § 803-31 limited search warrants to searches of articles “in the possession of the person whose premises are to be searched.” Id. at 84, 951 P.2d at 1247. HRPP Rule 41 also limited search warrants to authorize intrusions “within the circuit wherein the property sought is located.” Id. In response to Scott, the legislature amended the statute and the rules were also amended to pave the way for anticipatory warrants.

Then came United States v. Grubbs, 547 U.S. 90 (2006). There, the Supreme Court of the United States held that anticipatory search warrants do not violate the Fourth Amendment. Id. at 94. It further held that the “triggering event” or condition need not be included in the warrant itself. Id. at 97.

. . . and, Starting Now, isn’t a Violation of the Hawaii Constitution. With that as a backdrop, the HSC examined if the anticipatory search warrant violated Haw. Const. Art. I, Sec. 7. It doesn’t. The HSC held that “anticipatory search warrants are valid under the Hawaii Constitution when supported by probable cause because they are consistent with the requirements of article I, section 7, and they incentivize police officers to obtain warrants prior to conducting searches.” The HSC first noted that nothing in the constitutional clause prohibits triggering events in the future. The warrant simply must be based on probable cause and have particularity to describe the place to be searched and property to be seized. State v. Woolsey, 71 Haw. 638, 640, 802 P.2d 478, 479 (1990). Second, the anticipatory warrant is no different than a regular-kine warrant conceptually: a neutral judge must determine “(1) that is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Grubbs, 547 U.S. at 96. Finally, an anticipatory warrant incentivizes police officers to get a warrant in the first place rather hope that a warrantless search meets some exception.

But Anticipatory Warrants in Hawaii need a Triggering Event Described in the Warrant Itself. Unlike the Fourth Amendment, the Hawaii Constitution has “a specific provision expressly establishing the right to privacy.”  State v. Mallan, 86 Hawaii 440, 448, 950 P.2d 178, 186 (1998). Moreover, Article 1, Section 7 prohibits unreasonable searches, seizures, and “invasions of privacy.” This means “that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary.” State v. Lopez, 78 Hawaii 443, 446, 896 P.2d 889, 901 (1995). Thus, the HSC held that in order to ensure the governmental intrusion is no greater than absolutely necessary, anticipatory search warrants must identify and contain the triggering event in the text of the search warrant itself.

And so—there being no triggering event in the warrant itself—the HSC vacated the ICA’s decision and remanded it back to Kauai for further proceedings.

A Hypothetical. What if Curtis and Hall signed the package, got super paranoid, drove out to Barking Sands and decided to open the package in their car? What if it was a party package and went out to someone else’s house to open it? Would the warrant be void? Would it authorize the police to search the car? Barking Sands? The party house? Now that anticipatory warrants are part of our legal landscape, you can expect this issue to come up some day.

The (Statutory) Right to Counsel Emerges in the DUI/OUI Investigation.

State v. Scalera (HSC April 21, 2017)

Background. John Scalera was arrested under suspicion for operating a vehicle while under the influence of an intoxicant. He was taken to the police station and the arresting officer read to him the police-issued implied consent form. The form stated that Scalera did not have the right to “an attorney before you submit to any tests or tests to determine your alcohol and/or drug content.” The officer then asked if Scalera would submit to a test. He said he would not take anything. The officer considered that a refusal and moved on to the longer implied consent form. He again said he wasn’t going to take anything. The officer deemed it a refusal.

The officer did not hear Scalera ask for an attorney, but later testified at a hearing that even if he did, he did not recall Scalera asking for one. The officer said that it “wouldn’t have mattered anyways because the forms state that you’re not entitled to an attorney during the implied consent.”

Scalera was charged with OUI. He filed a motion to suppress on the grounds that he was denied access to a lawyer pursuant to the State and federal constitutions and HRS § 803-9. The motion was denied. He was went to trial, was found guilty of OUI and refusing to submit to a test. He appealed to the ICA, and the ICA affirmed. Scalera petitioned to the HSC.

The Pre-Miranda Codification of Miranda? This case does not center around Miranda warnings and the right to counsel flowing from the United States Constitution. Instead, it comes from a statute that has been on the books for decades. In fact, it goes back to the Hawaiian Kingdom. State v. Edwards, 96 Hawaii 224, 233 n. 9, 30 P.3d 238, 247 n. 9 (2001).

“It shall be unlawful in any case of arrest for examination . . . [t]o deny to the person so arrested the right of seeing, at reasonable intervals and for a reasonable time at the place of the person’s detention, counsel or a member of the arrested person’s family[.]” HRS § 803-9(1). The statute also declares it unlawful “to examine the person before the person has had a fair opportunity to see and consult with the attorney or member of the person’s family” when “the person arrested has requested that the person see an attorney or member of the person’s family.” HRS § 803-9(4). Violation of the statute is a misdemeanor. HRS § 803-10.

The purpose of the statute is “to protect an accused’s right to counsel.” State v. Ababa, 101 Hawaii 209, 215, 65 P.3d 156, 162 (2003). This is broader in scope than the Miranda warnings. State v. Edwards, 96 Hawaii at 235, 30 P.3d at 248.

HRS § 803-9 Applies Even when there is no “Interrogation.” The HSC at the outset held that the statute applies even when there is no interrogation that would normally trigger Miranda warnings. The HSC explained that the term “arrest for examination” in the statute is broader than the “custodial interrogation” under the state and federal constitutions. And so, the statute applies in situations like Scalera’s, where he’s arrested and in custody.

“Reasonable Efforts” Requirement. Once the arrestee demands to contact an attorney, the statute requires the police to make “reasonable efforts to contact counsel.” State v. Ababa, 101 Hawaii at 216, 65 P.3d at 163. Although the statute does not require the arrestee to be informed about this right, the police cannot “preempt an invocation of these protections by giving misleading or incorrect information concerning access to counsel.”

The HSC took issue with the forms used in this case. The form stated to Scalera that he did not have the right to an attorney before deciding whether to take a chemical test. This is misleading and inaccurate. The HSC held that this form violated Scalera’s statutory right to counsel under HRS § 803-9.

So What’s the Remedy? The HSC examined whether a violation of the statute would prompt exclusion of evidence instead of another remedy (such as a criminal prosecution pursuant to HRS § 803-10). In order to invoke the exclusionary rule as a remedy to a statutory violation, the HSC noted that there must be a “connection between the statutory violations and the evidence to be suppressed.” State v. Edwards, 96 Hawaii at 237, 30 P.3d at 251. In other words, there must be preponderant evidence from that the statutory violation “ultimately had an adverse impact” on the defendant’s substantive rights. State v. Ababa, 101 Hawaii at 217-218, 65 P.3d at 164-165.

How to Exclude from a Statutory Violation . . . And so the HSC held that in order to suppress evidence, the defendant had to show that the violation of the statute—in this case, blocking access to counsel before submitting to a test—resulted in the obtaining of evidence—the evidence of a refusal in this case. Here, Scalera did not testify and did not provide evidence at the hearing to show a nexus. Because there was no nexus, the district court did not err in denying the motion to suppress. Ultimately, the judgment was affirmed.

Don’t Panic, Prosecutors. Prosecutors and police may be scratching their heads with this one. Does this mean that defense counsel had better get ready to answer some calls from drunk drivers at 2 in the morning? Does it mean that all investigating stops once the arrestee invokes the right to counsel (the statutory one, of course)? Maybe not.

In a footnote, the HSC took pains to point out that HRS § 803-9 affords access to counsel at a reasonable time and in a reasonable manner. If counsel is not available in that time frame, “an arrestee can be required to make a decision regarding testing without the advice of a lawyer when further delay will significantly postpone or materially interfere with alcohol concentration testing.”

But the police still have to give the arrestee the time and opportunity to find counsel. Perhaps it’s time for defense lawyers to start a hotline.

Delay in Determining if Defendant is Indigent or not Excluded from Rule 48

State v. Foo (ICA December 29, 2016)

Background. Quincy Choy Foo was charged with misdemeanors. He appeared in court and had no counsel. The district court referred Foo to the Office of the Public Defender to determine if he qualified for its services and ordered him to return in twenty-one days. Choy Foo appeared again without a lawyer and told the court that he had an appointment set up with the Public Defender’s Office. The case was continued again. He appeared a third time and said that the Public Defender’s Office told him to ask for more time because its deputies were in training. The court continued it again. This time he had a Public Defender who entered a not-guilty plea and demanded a jury trial. The district court remanded the case to the circuit court and set another date. At the next date before the circuit court, Choy Foo again pleaded not guilty and set the matter for trial. The circuit court continued the matter twice over the State’s objection.

Choy Foo filed a motion to dismiss pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 48. Choy Foo’s calculation showed a total of 189 days from his arrest and setting of bail to the trial date. The prosecution filed a memorandum in opposition with its calculation of 168 days. The amount of time in dispute was the twenty-day-day delay from the initial arraignment in the district court to the hearing in which Choy Foo was ordered to meet with the Public Defender. The circuit court granted the motion and included the period of time. The circuit court also dismissed the case with prejudice. The prosecution appealed.

Lawyer Math: The Rule 48 Problem. If trial does not commence within six months “from the date of arrest if bail is set or from the filing of the charge, whichever is sooner,” the case must be dismissed. HRPP Rule 48(b). Six months is 180 days. There are periods that must be excluded from the 180-day calculation.

Delays caused “by collateral or other proceedings concerning the defendant, including but not  limited to penal irresponsibility examinations and periods during which the defendant is incompetent to stand trial, pretrial motions, interlocutory appeals and trials of other charges” are excluded from the 180 days. HRPP Rule 48(c)(1). The rule further explains that certain pretrial motions—from their filing to “prompt disposition” are per se excluded. HRPP Rule 48(d)(1). A motion for withdrawal as counsel and appointment of new counsel is one of those motions.

The ICA held that the 21-day-delay caused by Choy Foo’s initial referral to the Public Defender’s Office should have been excluded under HRPP Rule 48(c)(1). The ICA reasoned that the delay in getting the services of the Public Defender is akin to a motion to withdrawal and appointment of substitute counsel and that the general language of (c)(1) adequately covers this situation. Alternatively, the ICA held that this situation is part of the “good cause” catchall in HRPP Rule 48(c)(8).

To Dismiss With or Without Prejudice . . . that is not in Question. The ICA also took issue with the dismissal with prejudice. The trial court failed to consider and articulate on the record the factors laid out in State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981). Choy Foo agreed.