Monday, December 31, 2007

For Plain/Unambig. Laws, Leave the Legislative History for Historians.

State v. Klie (HSC December 27, 2007)

Background. Klie was charged with soliciting $ex in the Waikiki area in violation of HRS § 712-1207(1) in the district court. Klie pleaded no contest. The district court accepted his plea. Klie then moved for a deferred acceptance of a no-contest plea (DANC) purs. to HRS § 853-1. The court agreed with the State that the statute did not afford the court any discretion in giving a DANC and denied Klie’s motion.

DAG-nabbit!! Generally, courts can grant a DANC or DAG when (1) the defendant pleads no contest or guilty and (2) when the ct. concludes either that the defendant isn’t likely to engage in further criminal conduct and the “ends of justice and welfare of society do not require that the defendant presently suffer the penalty[.]” State v. Sakamoto, 101 Hawai’i 409, 412, 70 P.3d 635, 638 (2003). HRS § 853-4 provides that offenses that are not subject to probation are an exception to the general rule.

HRS § 712-1207 provides specific sentencing options and procedures. Violations of this statute require a mandatory thirty-day term of imprisonment. HRS 712-1207(5), however, allows the court to place a defendant on probation for up to a 6-mo. pd. “[a]s an option to the mandatory term of imprisonment[.]” The HSC therefore rejected the State’s argument that HRS § 712-1207 is a statutory scheme of enhanced sentencing, and concluded that the “option” of probation was one of two alternatives w/in the discretion of the district court. Thus, it was an abuse of discretion for the dist. ct. to conclude that it did not have the power to accept Klie’s DANC.

The error of the district court was not that it failed to accept the DANC, but rather it positively concluded that it had no power to do so. The discretion is left with the court to accept it. It must make findings under the general rule. In this case, the dist. court even stated that Klie had no prior record and but for this unfortunate incident in Waikiki, he was a model citizen. Of course, there are many citizens appearing in the dist. ct. who are far from model ones. For their DANC-ability, we leave that for the discretion of the court.

We Don't Need No Education. The HSC also found the State’s reliance on the legislative history unfounded. The HSC made it crystal clear that courts must not examine legislative intent where the language is plain and unambiguous. This canon of statutory interpretation is certainly not a novel one. Nevertheless, the HSC reaffirmed—one might even argue that it revived—this long-held canon of construction. Legislative intent may be useful, but here the HSC makes it very clear that it can only be used when the language of the statute fails. This certainly limits a lawyer’s ability to look to the committee reports or various testimonies behind a particular law. And rightfully so. Legislative history is a tool for interpreting a statute. When the statute clearly speaks to the particular issue in a case, there is no need for such a tool and it should be disregarded.

Thursday, December 27, 2007

HSC not suspicious on reasonable suspicion.

State v. Spillner (HSC December 24, 2007)

Background. After Spillner was pulled over for having illegally tinted windows, a police officer learned that he had no license or insurance. A week later the same police officer saw that Spillner didn’t fix the tinted windows and stopped him again. This time his girlfriend was driving. The car was still uninsured. About a week later, the same officer saw Spillner driving and stopped him a 3d time. Spillner was cited for driving w/o a license (HRS § 286-102) and being uninsured (HRS § 431:10C-104). Spillner filed a motion to suppress arguing the 3d stop was based on prior contact and that on the 3d stop there were no reasonable grounds for the stop thus it was an illegal seizure; he lost and was found guilty as charged.

Booking Ongoing Criminal Activity w/in “Bookends”. A traffic stop is a seizure for constitutional purposes, and fruits of an illegal stop must be suppressed unless the State shows that the officer had a reasonable suspicion that criminal activity was afoot. State v. Bohannon, 102 Hawai’i 228, 237, 74 P.3d 980, 989 (2003). Reasonable suspicion is an objective standard calling for a person of reasonable caution to believe that criminal activity is afoot. The court must determine a totality of the circumstances. Id.

The HSC recognized that these analyses turn on the slightest facts. Courts must distinguish an officer’s improper reliance on past cases of criminal activity from knowledge of an ongoing criminal activity.

Related to this distinction is the freshness of the officer’s information at the time of the seizure. The HSC established two “bookends” for timeliness. On one end is US v. Sandridge, 385 F.3d 1032 (6th Cir. 2004), where an officer pulled over the driver 22 days after he ran a license check on the driver. This is fine. The other end, the stale end, is US v. Laughrin, 438 F.3d 1245 (10th Cir. 2006), where an officer’s information on the driver was 22-weeks old and that w/o any other knowledge of criminal activity, the info was just too stale to warrant an objective reasonable suspicion. Here, the officer’s knowledge that Spillner had no license was one week old, well w/in the bookends.

The “bookends” analysis allows practitioners to comfortably determine whether the officer’s information was stale or not. The case law supporting these bookends also came from determinations of probable cause too. Perhaps, then, this applies to every kind of search and seizure analysis.

And though we now have some kind of measuring stick for practitioners, it makes the determination of ongoing criminal activity unclear. Perhaps it is quite possible for an officer’s information to be well w/in the bookends, but still have no basis of an ongoing criminal activity. This case does not dispose of the problem b/c the HSC cited cases in other jurisdictions that consider driving w/o a license an ongoing criminal activity. Still yet, the HSC cautions that in addition to these “bookends,” the court must consider the totality of the circumstances.

Weighing the Interests of Parties. The HSC then held that the interests advanced in traffic enforcement outweighed the nature and degree of intrusion by law enforcement. Obviously, the State has a legitimate interest in ensuring highway safety. To do this, it licenses its drivers. This outweighs Spillner’s privacy intrusion b/c driving is a privilege and because Spillner was not picked at random. It seems, then, that even if the officer had a reasonable suspicion or something more, the court must determine if the stop was reasonable by weighing the interests of the State against the protection of an individual’s privacy. Because the HSC did not find that the privacy protections outweighed the interests of the State, the HSC did not explain the remedy.

Justice Acoba’s Dissent. Much of Justice Acoba’s dissent pointed out that the cases relied upon by the majority hinged on suspended licenses rather than driving w/o one. In the suspended license case, an officer who runs a check, sees the suspended status, and observes the driver has concrete knowledge that the license has been suspended. This is different from the case here.

Justice Acoba also criticized the “bookends” b/c it takes away from the fact-intensive analysis. At the end of the day the court looks to the totality of the circumstances. Similarly, the majority’s analysis on the staleness or freshness of the officer’s information, “improperly elevates one factor above all others.” Finally, Justice Acoba opined that the weighing of the interests was “with all due respect, a makeweight effort to buttress [the majority’s] holding” and is unnecessary. The objective standard of reasonableness in the analysis already weighs the interests of the parties. To do it again is redundant.

Saturday, December 22, 2007

Agency's Determination of an Agency Reviewed w/o Deference.

Olelo v. Office of Information Practices (HSC December 21, 2007)

Background. Three people requested from Olelo, a community television programmer on Oahu, a list of the names and contact information of everyone eligible to vote in Olelo’s election to its Board members. This request came after the Office of Info. Practices issued an opinion letter that concluded Olelo was an “agency” as defined by the Uniform Information Practices Act (HRS Ch. 92F) and was thus subject to its disclosure requirements. Olelo refused to divulge, and the OIP demanded disclosure. Olelo filed a complaint for declaratory relief requesting that the circuit court conclude it was not an “agency.” The circuit court reviewed the request de novo and granted Olelo’s summary judgment. OIP appealed.

An Agency is NOT an Appellate Court. If the legislature granted the agency the discretion to make the decision being appealed, then courts review for an abuse of that discretion. However, if no discretion is granted, then the courts review de novo. Paul’s Electrical Service, Inc. v. Befitel, 104 Hawai’i 412, 419-20, 91 P.3d 494, 501-02 (2004).

The HSC examined HRS Ch. 92F, which lays out the duties and purposes of the OIP, and summarized its powers to include (1) providing guidance to the public and agencies as to when records should be available; (2) monitor agency compliance w/ the UIPA; and (3) adopt rules for the disclosure of records. Thus, “a matter balancing the public’s interest in open gov’t records against an individual’s right to privacy under article I section 6 and section 7 of the Hawai’i Constitution is w/in OIP’s designated area of expertise.” The “threshold issues” like the definition of “agency” and “gov’t records” are not. These terms are defined by the Legislature. The OIP’s application of these terms are not w/in its designated area of expertise warranting de novo review.

The OIP is a peculiar agency. The Legislature empowered it to guide the public and the gov’t as to whether it is in compliance with it, but gave it no enforcement powers. Before today, one could imply that official OIP opinion letters applying the UIPA were pursuant to this power. Now, it seems that challengers of an agency decision can pick apart agency opinions to sort out the “threshold issues” from the functions w/in the agency’s expertise. The HSC appears to maintain that the Legislature did not empower the OIP to interpret the UIPA, but rather guide others on its compliance. The OIP, like any one else, does not have authoritative interpretations of the law. Only appellate courts can do that.

But what would happen if the Legislature did create some kind of agency or tribunal with the express power to interpret, but not enforce, the law? Would its interpretations be reviewed with deference by courts? It should. Look no further than the labor appeals board, the family court and the ICA as examples of the Legislature creating tribunals with the express power to review and interpret the law.

And Olelo is NOT an Agency. It is undisputed that Olelo has a contract with the Dept. of Commerce and Consumer Affairs (DCCA). Although the DCCA has a say in who is on the Board of Directors and provides certain services, Olelo is a non-profit organization and the DCCA does not interfere w/ its daily operations. HRS § 92F-3 defines an “agency” for UIPA purposes as a corporation owned, operated, or managed by or on behalf of the State. The HSC examined every word and phrase and concluded that Olelo plainly and unambiguously is not an agency. It is not owned, operated, or managed by or on behalf of (i.e. performs a State function akin to outsourcing) the State.

Tuesday, December 18, 2007

HSC finds many exceptions to mootness, declines legislating from the bench.

Doe v. Doe (HSC December 13, 2007)

A six-year-old child’s parents divorced. Sole custody went to the mother, who lived on the Big Island. Dad lived in California. The grandparents petitioned for visitation rights of the child on the grounds that it would be in the best interests of the child if they had reasonable visitation rights. Mom challenged the petition arguing that the statute allowing grandparental visitation rights, HRS § 571-46.3 was unconstitutional on its face in light of Troxell v. Granville, 530 U.S. 57 (2000). The family court agreed with Mom and dismissed the grandparents’ petition. About five months after the grandparents appealed, Dad took custody and the child moved to California. The State filed a “Notice As To Possible Mootness” arguing that the issue might be, well, moot. The HSC ordered a show cause as to why it should not be moot. Mother did so.

Mootness Was the Case. A case is moot when “events have so affected the relations between the parties that the two conditions for justiciability relevant on appeal—adverse interest and effective remedy—have been compromised.” Okada Trucking Co. Ltd. v. Bd. of Water Supply, 99 Hawai’i 191, 195-96, 53 P.3d 799, 803-04 (2002). In other words, “a case is moot if the reviewing court can no longer grant effective relief.” Kahoohanohano v. State, 114 Hawai’i 302, 332, 162 P.3d 696, 726 (2007). The HSC held that this case was moot when custody went to Dad. The grandparents’ petition sought visitation rights from Mother, who no longer has custody. The fact that Mom doesn’t have custody, according to the HSC, means that there is no effective remedy. If that is the reason why it’s moot, then it begs the question: would it have been different if the petition sought visitation rights regardless of the custody provider? Which leads to another question—are the grandparents being punished for being specific? Probably not. The grandparents expressly stated that they didn’t object to dismissal of the appeal based on mootness.

Not Just One, Not Just Two, But “Several.” In spite of the mootness, the case falls w/in the public-interest exception. The HSC clarified, for the 2d time this year, see Kahoohanohano, that the public-interest exception is “separate and distinct” from the capable-of-evading-review exception. Over the years, these two merged into a two-step analysis. This is inaccurate. In fact, the HSC, w/o naming them, stated there were “several” exceptions to mootness.

When analyzing the public-int. exception, the court looks at (1) the public or private nature of the question; (2) the desirability of an authoritative determination for future guidance of public officers; and (3) the likelihood of future recurrence of the question. The HSC held that b/c the family court invalidated the statute on its face, the fact that so many families could be affected was a public concern. Secondly, the ruling casts a shadow over the legitimacy of the statue thereby calling for an authoritative determination. Finally, the issue could arise where any parent seeks to challenge a petition under HRS § 571-46.3. Thus, the exception was met.

Harm to Rather than Best Interests of. Upon examining the issue, the HSC held that the family court did in fact err in relying on Troxel, a plurality opinion, to invalidate the statute. Nevertheless, Troxel does not address the question of whether there must be a finding of harm to the child for allowing non-parental visitation rights rather than the best interests of the child standard. The HSC determined that a parent’s raising of a child is a “fundamental liberty interest” and a statute that infringes on it calls for strict scrutiny. The HSC adopted those jurisdictions that have held a custom-made formulation of “strict scrutiny”: non-parental petitioner must show that child will suffer “significant harm” w/o visitation before the family court can consider whether the visit is in the best int. of the child. The HSC held that because HRS § 571-46.3 merely states that visitation must be in the best interests of the child and does not require a showing that the child would be significantly harmed w/o the visitation goes beyond interpretation into the taboo of judicial legislation and affirmed the family court.

Add this one to the Legislature’s To-Do List next session.

Thursday, December 13, 2007

ICA gets serious on serious bodily injury

State v. Maddox (ICA December 11, 2007)

Background. Mickey Maddox went over to his ex-girlfriend's house and got into a fight with Dale Mota, his ex's new squeeze. Maddox stabbed Mota in the chest with a utility tool. The blade missed his heart and all vital organs. Mota was taken to the hospital where he was treated by Dr. Nelson. The wound was two-inches long and went between Mota's ribs right next to his heart. There was no need for a surgery or any indication of a severe injury such as a heart laceration, vessel cut, or collapsed lung. Mota's wound was cleaned and bandaged w/o stitches. He was released w/in 24 hours. Maddox was charged with first-degree assault (HRS § 707-710(1)).

At trial, Dr. Nelson testified that Mota's wound created a substantial risk of death because it was a stab wound directly towards his heart. Dr. Nelson also testified that it was a miracle how the blade did not injure any important organs. Maddox testified at trial. He testified that Mota was the first aggressor. The jury found Maddox guilty of first degree assault.

The State moved for extended sentencing for the first degree charge pursuant to HRS § 706-662(1) because he was a "multiple offender." The circuit court granted the motion and sentenced Maddox to 20 years w/ a mand'y min. of 3 years and 4 months. The court also ordered $13,972.13 in restitution with the matter of payment to be determined by the Director of the Dept. of Public Safety.

You're Not "Serious" Are You? The ICA agreed with Maddox that there was insufficient evidence to prove first degree assault. HRS § 707-710(1) requires "serious bodily injury." Serious bodily injury is defined as "bodily injury which creates a substantial risk of death[.]" HRS § 707-700. The ICA held that when an injury is close to penetrating vital organs, but misses them does not create a substantial risk of death. The ICA added that the substantial risk of death must "flow from the bodily injury rather than the defendant's conduct[.]"
In other words, the injury to the victim is viewed objectively and the defendant's intent and motives to seriously injure the victim are irrelevant. The ICA noted that the defendant's conduct becomes relevant when the defendant is charged with attempted first degree assault (a valuable lesson for charging prosecutors everywhere). Maddox was not charged with attempted assault. Thus, there was insufficient evidence to find him guilty of first degree assault. Dr. Nelson's opinion that the wound created a substantial risk of death was based on the defendant's conduct, not an objective examination of the wound.

Not Serious, but Overwhelmingly Substantial. The ICA moved away from first degree and held that there was "ample, indeed overwhelming, evidence" that the wound was a "major avulson, laceration, or penetration of the skin" thereby constituting a "substantial bodily injury," the requirement 2d-degree assault. The ICA therefore held that the first-degree conviction conviction be overturned and the 2d-degree assault be imposed.

First Aggressor Evidence Needs Foundation, the Order of Which Depends on the Trial Ct. Maddox also argued that the trial court erred in precluded him from cross-examining Mota about his violent character. Evidence of Mota's violence generally not admissible. HRE Rule 404(a). However, the defendant may use character evidence that is "of a pertinent trait of character of the victim[.]" Id. When the accused seeks evidence of the victim's violent character as a Rule 404(a)(2) exception, there must be a foundation. The order of which comes first, the foundation or the evidence, is up to the trial court. HRE Rule 611 (trial court given discretion to control the mode of questioning.).

Here, the court precluded Maddox from cross-examining Mota about his violence until the evidence supported a finding that Mota was the initial aggressor. This was well w/in its discretion. In this case, Maddox should have recalled Mota after he testified that Mota attacked him first. Upon being recalled, Mota could've been examined about his violent character.

The ICA, in a footnote, noted that it was equally w/in the court's discretion to allow the cross-examination of Mota about his violent character "subject to striking such questions and testimony if the requisite evidentiary foundation was not subsequently laid[.]" This mode would help the narrative flow for the defense. Then again, had Maddox called Mota afterwards, it would have changed the jury's views on someone who had been already called. That, of course, is left to trial lawyers and their stratagems.

Comments by Prosecutor Imprudent, but not Misconduct. Maddox claimed prosecutorial misconduct based, among other things, on the State's assertion that his original charge was attempted murder at opening statement and that Maddox must be lying about the harm he suffered b/c he didn't tell the police at closing. The ICA noted that even though it "fail[ed] to see any valid reason for disclosing in opening" that Maddox was originally charged w/ attempted murder, and questioned the propriety of the argument at closing that Maddox was lying, it did not arise to misconduct. The remarks were short, they were objected, and the objection was sustained and the statements stricken. Thus, they were harmless BRD. As for the other assertions, they too did not contribute to Maddox's conviction.

Caught in Midstream. Maddox's extended term in sentencing was appealed before State v. Maogaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), in which the HSC held that the extended sentencing statute was unconstitutional. It was also before the legislature attempted to remedy the problem with the new statute, which was signed into law on Oct. 31, 2007. The ICA remanded the case to resolve the disputes about the new scheme of extended sentencing w/o opining how the new extended term sentencing laws would affect this case. The new sentencing laws allow retroactive sentencing at the discretion of the prosecutor. Only time will tell.

Non-Delegation Rule Alive and Well? ICA also found error in the restitution order. The sentencing court must enter into the record findings of fact and conclusions of law that the manner of payment is reasonable and on which the defendant can afford. See State v. Gaylord, 78 Hawai'i 127, 153, 155 P.2d 1167, 1193, 1995 (1995). Furthermore the State conceded that the sentencing court could not, as it did here, delegate the determination of the manner of payment to the Director of Public Safety. Thus, the ICA vacated the order and remanded.

One Lucky Buggah. Maddox seems to be a lucky guy. First, he was lucky he missed any of Mota's organs. Second, he was lucky the State didn't charge him with attempted first-degree assault. Third, he was lucky that his appeal was pending when the Maugaotega II and the legislative fix took place.

Sunday, December 9, 2007

Photo Lineups and Pearl-Handled Baseball Bats

State v. Yamada (ICA December 6, 2007)

On Valentine’s Day two men were robbed at the Diamond Head lookout. One of the robbers clubbed a guy with a baseball bat. Five weeks later, two Japanese tourists were robbed by two men with a baseball bat at the HNL Zoo. Later that day, police arrested Yamada when he and another guy were found rifling through a parked car at UH. Yamada had a baseball bat. Yamada’s mug shot was used in a photo lineup for one of the witnesses from Valentine’s Day; the witness identified Yamada as the man who used the bat. Yamada was charged with two counts of Robbery in the First Degree (HRS § 708-840(1)(b)(i)) and one count of Assault (HRS § 707-710). Yamada later pleaded guilty robberies at the zoo and went to trial for the Valentine’s Day incident.

At trial, Yamada raised an alibi. The State sought, over Yamada’s objection, the admission of his mug shot and the fact that Yamada pleaded guilty to the zoo robberies. The circuit court allowed the mug shot, a photograph of the baseball bat Yamada had w/ him at UH, and a brief account of how the police got the bat. There was no reference to Yamada’s arrest and the zoo robberies. The jury found him guilty as charged.

404(b) Ev. Showing Just Identity Is “Propensity In Sheep’s Clothing.” Evidence of bad acts is not admissible merely to show that a person is bad and has a criminal propensity. Even if it is admissible under HRE Rule 404(b), its probative value must still outweigh any prejudice. HRE Rule 403. For Rule 404(b) evidence to be admitted without error, (1) the evidence must be “probative of any fact of consequence other than character and propensity; and, if so, (2) [the evidence’s] probative value substantially outweighed the danger of unfair prejudice to [the defendant].”

Under the first question, the ICA agreed w/ Prof. Bowman’s comment that because identity of the defendant is always a fact of consequence in a criminal case, the inferential link between the defendant’s bad act and the identity of the criminal is too weak to stand alone and “intermediate inferences” are needed. The ICA found two.

Not Quite As Distinct As Jack the Ripper is Okay. The ICA held that the 404(b) evidence was admissible to establish modus operandi between the Valentine’s Day incident and the HNL zoo robbery: (1) both victims were “initially startled by loud, abusive shouting, and then overpowered with sudden violence, (2) the use of an aluminum baseball bat in commission of the crimes, (3) the similar times and close proximity of the offenses, and (4) the participation of two men in the attacks.” As for any dissimilarities b/t the two, the ICA held that they aren’t strong enough to negate the similarities.

The ICA’s position shows that the modus operandi inference need not be exacting. ICA does not discuss any similarities between the bats other than the fact that they were both aluminum. The other similarities are not as distinctive as the classic “pearl-handled pistol” or trademark serial killers. That violence followed verbal abuse, that there were two robbers, and that the robberies took place within five weeks of ea. other in a major metropolitan area are not uncommon. Then again, if you look at it cumulatively, some pattern emerges. And we cannot forget that the similarities might have been more striking before the trial court to which, under this standard of review (abuse of discretion), appellate courts defer. The ICA also noted that the fact that Yamada had the baseball bat was admissible to show that he had the opportunity to commit the crime on Valentine’s Day.

Probative Value Outweighs Prejudice. The ICA next held that the probative value of the evidence outweighed any prejudice. Relevant factors include (1) strength of the evidence, (2) the similarities between the crimes, (3) the time b/t the crimes, (4) the need for the evidence, (5) the efficacy of alternative proof, and (6) the degree to which the ev. probably will “rouse the jury to overmastering hostility.” State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992). Given the fact that the evidence was used to show modus operandi w/o error, these factors weighed in favor of admission. Moreover, because Yamada had an alibi, the need for the evidence was pressing. Finally, the ICA noted that any prejudice or hostility was weakened by the circuit court’s “concerted effort.” The circuit court limited the actual evidence to a “sharply curtailed version” of the events and a photo of the bat as well as several oral and written instructions.

Speaking A Thousand Words. The ICA moved on to the photo lineup and applied the three-part test in State v. Kutzen, 1 Haw.App. 406, 620 P.2d 258 (1980). First, the gov’t must have a demonstrable need to introduce the photo. The ICA in Kutzen held that there is no gov’tal need when there has been an in-court identification. Id. at 413, 620 P.2d at 263. Second, the photos, if shown to the jury, must not imply that the defendant has a prior criminal record. Third, the manner of intro. at trial must not draw particular attention to the source or implications of the photo.

Under the first prong, Yamada conceded that there was a gov’tal need for the photo because he raised an alibi defense. As for the second prong, the ICA distinguishes itself. In Kutzen, the ICA held that the mug shots used in that case inferred prior records because even though paper was folded and stapled over the bottom of the photo to hide identification numbers, “an inquisitive juror could easily, w/o removing any staples, have seen the police mug shot identification numbers[.]” Id. Here, Yamada’s photos were black n’ white, unmarked frontal shots with handwritten numbers on the top and the words “HONOLULU POLICE.” These photos had no “internal police markings” or “mug shot identification numbers.” Finally, the ICA observed that the purpose of the 3d prong is to prevent the jury from inferring that the defendant has a criminal propensity based on mug shots from other bad acts. It, therefore, fuses into the earlier analysis. It also held that the photos were admissible under the 3d prong b/c the circuit court have a limiting version of how Yamada was arrested at UH.

You Bet it’s Sufficient. The ICA rejected Yamada’s contention that there was insufficient evidence of guilt. His contentions went to the credibility (or rather, incredibility) of the State’s witnesses, the credibility of his own, and a lack of physical evidence. Given the great deference afforded to credibility questions on appeal, see State v. Gabrillo, 10 Haw.App. 448, 457, 877 P.2d 891, 895 (1994), the fact that these issues are viewed in the “strongest light for the prosecution[,]” and the ample evidence supporting the jury’s verdict, the ICA disagreed.

No Mistrial For Failing Court’s Orders. Yamada also argues that his motion for mistrial should have been granted because the prosecutor disobeyed the limiting instructions of the Rule 404(b) evidence by making comments about the UH arrest at closing. The ICA concluded that the prosecutor’s conduct was improper, but it was “unintentional and the result of an ongoing misunderstanding of the court’s ruling.” The circuit court also quickly instructed the jury to disregard the comments. Yamada also had the chance, but declined, to give a specific limiting instruction on the prosecutor’s statements. Thus, the ICA held that there was no error in denying the motion for mistrial.

Saturday, December 1, 2007

Impeaching with what was NOT said.

State v. Plichta (HSC Nov. 30, 2007)

Plichta stripped down a car in a parking lot with a hatchet one morning near Sand Island. After being confronted by the owner of the car, dousing him with pepper spray, trying to flee, and spray the police, he was apprehended. He told the police that they were in big trouble because he was the President of the United States, the chief of police, and part of an international agency.

Plichta’s defense counsel was preparing to go with the insanity defense and filed a motion for a three-doctor panel pursuant to HRS § 704-404. The circuit court granted the motion and three doctors examined Plichta to determine whether he was competent for trial and whether he was legally insane. Three doctors interviewed him and their reports were given to the parties and the court. At no time during the interview did Plichta talk about his belief that he was being chased by extra-terrestrial life.

At trial Plichta’s lawyer argued that at the time of the incident, he was under the belief that the police were humanoids from outer space who wanted to kill him. Over Plichta’s objection, the State cross-examined the doctors about whether Plichta told them about aliens. Plichta testified about his unconventional worldview and again the State cross-examined him about whether he told the doctors about the aliens. Plichta’s counsel then requested a motion to withdraw because she would have to testify that before undergoing the medical examinations, Plichta told her that he believed the police were aliens. Counsel also moved for a mistrial. Both motions were denied. Plichta was found guilty of all, but one, counts and was sentenced for almost 20 years. The ICA affirmed; Plichta appealed.

Statements Are Inadmissible, But Non-Statements are Not Implicated in HRS § 704-416. When doctors are appointed to determine penal responsibility (the new way of saying legally insane), HRS § 704-416 provides that a “[s]tatement made by a person subjected to examination or treatment . . . shall not be admissible in evidence against the person in any penal proceeding on any issue other than that of the person’s physical or mental condition . . . unless such statement constitutes an admission of guilt[.]” The majority of the HSC held that under the plain language of the statute, a person’s omissions are not “statements” and, thus, the statute is not implicated. A “statement,” explained the majority, is an intentional assertion. An omission, or rather, what the defendant does not say, is not an assertion.

This is Not Absurd. The majority further held that the statute does not lead to an absurd result. The purpose of HRS § 704-416 is to protect a defendant’s right against self-incrimination and ensure confidence during the examination. Omissions, since they are not statements, cannot be incriminating.

The Non-Statements Are Admissible. The majority concluded that the non-statements were relevant to whether he was being truthful when he testified that he held these beliefs on direct. Moreover, the probative value for impeachment was not outweighed by prejudice under HRE Rule 403. Thus, there was no error in allowing the cross-examination and no error in denying the motion for mistrial.

Stick It Out, Counsel. The HSC also held that the circuit court did not err in denying the motions to withdraw. The kind of withdrawal here is not mandatory and thus is left to the court’s discretion. The HSC examines factors: the significance of the matters the lawyer may testify, whether alterative witnesses are available, and the timeliness of the motion are some. Here, one of the doctors would have been an alternative witness about the aliens, and that the motion was untimely because counsel was aware of this issue before trial.

Justice Acoba’s Dissent (Justice Duffy Joins). Justice Acoba objected to the majority’s HRS § 704-416 analysis. The defendant has really no choice but to answer the doctors’ questions, and cannot avoid examination. Justice Acoba does not object to the plain language of the statute being silent on the non-statements. That said, “silence as to unmade statements does not invariably sanction admission of the failure to make a particular statement into evidence for impeachment purposes.”

The holding of the majority dramatically changes the medical examination. It “opens up a universe of possible inquiries that [the Defendant] would have had to prepare for and to speculate upon prior to examination.” It turns the medical examination into adversarial questioning. Moreover, to rebut possible impeachment, the Defendant would be pressed to give more information than called upon by the doctors.

HPA Likes The Cure, HSC Prefers New Order.

Coulter v. State (HSC November 30, 3007)

Background. Coulter was sentenced to 10 years for two counts of a criminal offense running concurrently. The Hawaii Paroling Authority (HPA) sent Coulter proper notice of a hearing to determine the minimum term of imprisonment and Coulter submitted materials showing mitigating circumstances such as letters of support and a biography. A hearing was held in March 2003 and the HPA issued its decision soon afterwards. The HPA imposed a min. term of seven years for each count, but never specified the level of punishment and the specific criteria upon which the decision was rendered, as required by Section III of the HPA 1989 Guidelines. Coulter filed a petition under HRPP Rule 40 arguing, inter alia, that the HPA failed to follow its own guidelines. On December 31, 2003, the HPA issued a Notice and Order of Fixing Minimum Term(s). This order set the same min. term of seven years, but included the level of punishment and the criteria. None of the people on the HPA that signed off the December order were on those who signed off on the first order in March. Coulter appealed his way to the HSC.

Same Standard of Review? The HSC reiterated the standard of review used by the ICA in Williamson v. Hawaii Paroling Authority, 97 Hawai’i 156, 34 P.3d 1055 (App. 2000), rev’d on other grounds, 97 Hawai’i 183, 34 P.3d 210 (2001). First, HRPP Rule 40 petitions are “an appropriate means to challenge a minimum term of imprisonment set by the HPA.” Second, b/c the disposition of an HRPP Rule 40 petition are based on findings of fact and conclusions of law, they will be reviewed for clear error and de novo respectively. Third, as for challenges to min. terms by the HPA, the HSC, in Williamson, stated that “judicial intervention is appropriate where the HPA failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner’s constitutional rights.” Williamson, 97 Hawai’i at 195, 34 P.3d at 222.

The HSC then added a fourth component: “With respect to claims of procedural violations, the court will assess whether the HPA conformed with the procedural protections of HRS § 706-669 and complied with its own guidelines, which the HPA was required to establish by statute. HRS § 706-669(8).” Looks like HRPP Rule 40 petitioners can argue the failure to follow mere statutes and rules that do not affect constitutional rights are subject to the Williamson standard.

Unexplained Failure to Follow the Rules is Arbitrary/Capricious. The HSC first held that the HPA order in March violated the HPA Guidelines. HRS § 706-669(8) requires the HPA to establish guidelines to ensure a “uniform determination of minimum sentences.” Pursuant to the statute, the HPA adopted the Guidelines requiring it to specify the criteria on which its decision its based as well as the severity level of the punishment. The HSC held that “[d]eviation from such rules, without explanation, constitutes arbitrary and capricious action that violates a prisoner’s right to uniform determination of his or her min. sentence.”

New Order or The Cure? The State argued that the December order “cured” the earlier one that violated the Guidelines, and that the amended order was all Coulter to which he was legally entitled. The HSC disagreed on the grounds that, b/c the December order was issued by completely different members, “it is unclear whether the Amended Order reflected the same level of punishment and significant criteria upon which the original decision was based.” The HSC also noted that the amended order came on the heels of the HRPP Rule 40 petition. Under these circumstances, this is not a cure for the defective decision.

Coulter argued that the December order was a new order that also failed to follow the notice proceedings. The HSC appears to have dodged this question, but it does cause pause. Was the amended order really an extension of the older one or a new order calling for procedural requisites like notice and submission of briefs and even a hearing? The circumstances and analysis by the HSC suggest the latter.

Who Needs Prejudice? The HSC also rejected the State’s contention that Coulter had to demonstrate how the amended order prejudiced him. The State bases its contention on State v. Monalim, 89 Hawai’i 474, 974 P.3d 1064 (App. 1998), where the ICA required actual prejudice to show a due process violation stemming from a delay in a parole revocation. The HSC distinguished this case from Monalim on the grounds that Monalim speaks only to parole revocations and that the HPA’s violation for Coulter was very different from a mere time delay. Mere delay is one thing, but in this case there was a possibility that a new hearing could have led to a different minimum term. Again, this conclusion suggests that the amended order was a new order and not an amendment to the March decision.

Play It Again, Sam. The HSC rejected the State's assertions that there was no actionable remedy and remanded the case for another min.-sentence hearing. This is a peculiar remedy. It makes sense to reject the State's claims that the amended order was a cure and that Coulter need not show prejudice. At first it may seem odd that the HSC's remedy is remanding for another hearing. It is highly likely that Coulter's gonna get a seven-year min. term for each count. But by making the HPA do it all over again, perhaps it will become clear that these amended orders in an attempt to retroactively fix past decisions and orders simply won't do. The big question is whether this Coulter remedy extends to other tribunals like, say, the family court where a judgment is parced up into a chain of orders, or even the circuit court. Can a lawyer argue that an amended order attempting to fix a prior order that veers from procedural rules and statutes is woefully inadquate and a whole new hearing, with notice and evidence is the only remedy? Wow.

Saturday, November 24, 2007

Stopping SOTP

State v. Holt (ICA November 21, 2007)

Background. Duke Holt was charged with Harassment by Stalking in violation of HRS § 711-1106.5(1). The complaining witness, a 12-yr-old girl, testified at trial. She testified that one morning she was walking to school when she saw that a man, later identified as Holt, was talking to her from his car. He flirted with her. He asked if she had a boyfriend, said that he was a nice guy, and that he wanted to get to know her better. At one point, according to the CW, Holt reached out of the car and grabbed her. They arranged a meeting the next day. The CW went to her school and the police were contacted. The police went to the arranged meeting place nd saw Holt in his car. He was arrested. At trial, Holt's counsel attempted to cross-examine the CW with a written statement she gave to the police in order to show inconsistencies with her testimony on direct. The circuit court did not allow it into evidence. Holt testified in his defense and said that he saw a girl, talked to her, but did not realize that she was so young. Holt was found guilty and the sentencing court ordered that Holt undergo a sex offender treatment program (SOTP). Holt appealed.

Prior Inconsistent Statements Admissible, but Harmless Error. The ICA held that the circuit court erred in refusing Holt to allow into evidence those portions of the CW's written statement that were inconsistent with her testimony on direct. Hawaii Rules of Evidence (HRE) Rule 613 allows extrinsic evidence of a prior inconsistent statement into evidence only when (1) the circumstances of the statement are brought to witness' attention and (2) the witness has been asked whether he or she made the statement. Holt laid proper foundation for its admission under HRE Rule 613(b).

The ICA also held that it was admissible as a hearsay exception under HRE Rule 802.1. The difference is that if admissible under HRE Rule 802.1, the statement may be used as substantive evidence as well as impeachment evidence. To be admissible under the hearsay exception, (1) the witness must testify about the subject mater in the prior statement; (2) the prior statements must be inconsistent with the testimony; (3) the prior inconsistent statement must be reduced to writing; and (4) the prior inconsistent statement must be offered under HRE Rule 613(b). The ICA held that Holt met these requirements. The CW adequately testified about the incident (the subject of her written statement), there were parts in her written statement that were inconsistent w/ her testimony, it was reduced to writing, and Holt met the foundation requirements under HRE Rule 613(b). Thus, it should have been admitted as substantive evidence. Given the weight of the evidence presented against Holt at trial, however, the ICA could not conclude that the error arose to a "reasonable possibility that error might have contributed to conviction." Accordingly, the error in keeping the statement out of evidence was harmless beyond reasonable doubt.

No Plain Error in Instructing the Jury. Holt approved of the jury instructions, but on appeal alleges individual errors in the jury instructions, thus the ICA reviewed the instructions for plain error. The ICA held that the circuit court did not plainly err in failing to include an ignorance-or-mistake-of-fact instruction. The circuit court failed to include the instruction, but stopped the jury deliberation, asked the jurors to hand down a set of instructions, and re-read new instructions, including the ignorance-or-mistake-of-fact instruction. The time lapse did not show plain error. The ICA next concluded that there was no plain error when the circuit court ordered jurors to remove an extraneous jury instruction regarding the defendant's right to refuse to testify. Finally, there was no reversible error in ordering the jury to "deliberate anew" after receiving the 2d set of jury instructions. In comparison to State v. Stanley, 120 Wash. App. 321, 85 P.3d 395 (Wash. App. 2004), a Washington appellate case that found error where the trial court ordered the jury to deliberate anew after a new juror entered the jury, because there was no new juror here and the trial court's duty to "see to it that the case goes to the jury in a clear and intellgient manner," State v. Kupihea, 98 Hawai'i 196, 204, 46 P.3d 498, 506 (2002), was not compromised.

Sentencing for 120 Days Imprisonment OK. The ICA went on to sentencing and upheld the lower court's 120-day prison sentence. There was no abuse of discretion because the statutory max. for a misdemeanor was six months jail. This was w/in the court's discretion because it was not in excess of the max. and the court's rationale reflected the factors laid out in HRS § 706-663.

SOTP, However, is NOT. The ICA held that an abuse of discretion arose in imposing SOTP on Holt because there were no facts showing that he was in need of such treatment. First, harassment by stalking is not one of the sexual offenses defined in HRS Ch. 707, Pt. V or HRS Chapter 846E. As for specific facts around Holt's offense, while the CW may have been 12 years old at the time, there was no evidence before the sentencing court that Holt had "a history of or propensity toward improper sexual behavior." Finally, the sentencing court ordered SOTP without first ordering that Holt be assessed for SOTP.

But Wait! The ICA had one more thing to say: "Although not raised by the parties at trial or on appeal, we also bring to the circuit court's attention HRS § 711-1106.5(2), which provides that '[a] person convicted under this section may be required to undergo a counseling program as ordered by the court.'"

Can I Get a Nexus? The ICA found no reversible error at the trial phase. However, practioners can use this case for the steps needed to use a prior inconsistent statement as substantive evidence. The more interesting analysis came at sentencing. The ICA found the order to undergo an SOTP w/o evidence showing the defendant had a history of or propensity toward improper sexual behavior an abuse of discretion. Just because the CW was a little girl, and just because it was highly suggestive that Holt could have had vile thoughts at the time of the offense, that was not enough to order an SOTP. It might have been enough to order an initial assessment as to whether an SOTP would be appropriate, and, on a related point, it was certainly enough for the sentencing court to order other kinds of counseling. As this case demonstrates, when a defendant is not convicted of a sex offense, SOTP cannot automatically be imposed. There muse be some kind of nexus. Given the facts in this case, it appears that that nexus must be pretty strong.

Thursday, November 22, 2007

HSC Gives No Gratuity for Bad Service (of Bench Warrant)

State v. Owens (HSC November 19, 2007)

Background. On Feb. 20, 2001, Owens was charged with one count of Abuse of a Household/Family Member in violation of HRS § 709-906 on Oahu. He pleaded guilty and was sentenced to one year of probation. He was ordered to go to Adult Service Branch for an interview with intake services. Owens never showed up. The ASB mailed him a letter seeking his presence. The letter was returned to the sender with the words "no longer at this address" stamped on the envelope. The State filed a motion for revocation of probation and resentencing on March 27, 2001. The court issued a bench warrant on the same day. No attempts were made to serve the bench warrant until November 28, 2005, four years and eight months later, on Maui. Owens filed a motion to dismiss for the State's violation of HRPP Rule 9. The motion was denied and the ICA affirmed.

HRPP Rule 9 Applies to Post-Conviction Proceedings, Including Probation Revocation. The HSC rejected the trial court's conclusion that HRPP Rule 9 applies only to post-conviction proceedings. In doing so, the HSC adopted the State's "cogent and correct" analysis. HRPP Rules 1 states that the rules of the HRPP "govern the procedure in the courts of the State in all penal proceedings," w/ exception to the provisions in HRPP Rule 54. Similarly, HRPP Rule 2 states that the "rules are intended to provide for the just determination of every penal proceeding." Finally, HRPP Rule 49 states with ringing clarity that service of a bench warrant and its proof of service "shall be governed by rule 9[.]" Thus, any distinction between pre-conviction and post-conviction proceedings is irrelevant.

So What IS Unnecessary Delay? HRPP Rule 9(c) requires that a "warrant shall be executed without unnecessary delay by the arrest of the defendant." There is no bright-line rule in determining "unnecessary delay." The test in determining whether the service arose to "unnecessary delay" depends on (1) whether the defendant was "amenable to service while the penal summons were outstanding"; and (2) whether there was a reason for the delay in serving the summons. State v. Lei, 95 Hawai'i 278, 285-86, 21 P.3d 880, 887-88 (2001) (discussing State v. Mageo, 78 Hawai'i 33, 889 P.2d 1092 (App. 1995)). This is a balancing test (and that's why the appellate courts review for an abuse of discretion), and, like many balancing acts, there are relevant factors--whether the defendant was available for service while the bench warrants were outstanding; whether there was any indication in the record that the defendant intentionally avoided service; whether the prosecution could adduce evidence that it attempted to serve during that time; and whether the prosecution could establish that any attempt to serve would be futile.

Factors Favor Owens. The HSC found that there was "unnecessary delay" in violation of HRPP Rule 9. First, even though Owens had been living in the jurisdiction all this time thereby making him available for service. Second, the State offers no reason why it took so long to serve the bench warrant. Moreover, there was no evidence showing that Owens tried to intentionally avoid service, no evidence showing that it attempted to serve the bench warrant during the four-year-eight-month period, and no evidence that any attempts during that time would have been futile. The HSC made it clear that the burden is on the State in showing these matters.

HRPP Rule 9 Clock Starts at Issuance, not Failing to Appear. The HSC rejected the ICA's theory that the timing in determining "unnecessary delay" begins when the defendant fails to obey a court order. The true timing for HRPP Rule 9 begins after the bench warrant or summons has been issued. This, after all, makes sense because service before issuance is impossible.

Tuesday, November 20, 2007

County Ordinance Among the Facially-Challenged.

State v. Beltran (HSC November 16, 2007)

Beltran and her friends, Keawemauhili and Lucas, were cited for Camping w/o a permit in violation of Revised Ordinances of HNL, Ord. 10-1-3(a)(2). They appeared in district court and moved to dismiss on the grounds that the ord. was unconstitutionally overbroad and vague. The motions were denied and the parties pleaded no contest w/ the right to appeal the denial of their motions. The ICA vacated on the grounds that it was unclear whether the ord. was prosecuted as a strict liability offense and remanded. The HSC then took it up.

Standing Schmanding. Beltran first argued that the overbroad definition of “camping” infringed on her DP right to privacy and freedom of movement. When alleging that a statute is overbroad, the challenger must be “directly affected by the claimed overbroad aspects” unless the statute affects the freedom of expression. As her expressive conduct is not at issue, she would have no standing to challenge the ord. as overbroad.

Notwithstanding standing, the HSC noted that when criminal laws reach a “substantial amount” of constitutionally-protected conduct, the HSC has examined them for voidness and overbreadth even when it could conceivably have had some valid application. State v. Shigematsu, 52 Haw. 604, 483 P.2d 997 (1971). The HSC found that this was such a case.

Casting an Awfully Wide Net. When facially challenging a statute the court examines whether the ordinance “reaches a substantial amount of constitutionally protected conduct.” A substantial amount is based on the ambiguous as well as ambiguous scope of the law; in other words, “the vagueness of a law affects overbreadth analysis.” The ordinance defined “camping” to include conduct “regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.” According to the HSC, “other activities” easily encompasses well-protected conduct such as walking around and looking up at the sky. Because the ordinance includes activity not specifically regulated by the ordinance, there was a “substantial amount” of constitutionally-protected conduct. The HSC held the void for overbreadth.

A Study In Vagueness. A criminal statute is void for vagueness unless it (1) gives the reader of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he/she may act according; and (2) provides explicit standards for those applying the statute to avoid arbitrary and discriminatory enforcement.

Camping is defined as “the use of public park[s] for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth-breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.”

The HSC noted that “living accommodation” distinguishes this activity from a daytime beachgoer. So far, so good. However, the “reasonably appears” standard in the 2d sentence brings it down. The HSC stated that the standard requires the actor to view his or her self as a third person would instead of informing the actor as to how to avoid a violation. It also gives complete discretion to the police in determining whether a person has violated the regulation. Thus, it would also be void for vagueness.

The County’s Scylla and Charybdis. The City and County of HNL’s camping ordinance is unconstitutional. So what happens now? The C & C has amended this particular definition several times over the years (presumably to combat the ever-growing homeless problem on the Leeward side). Now they’ve got to amend it again. Perhaps they should just strike the 2d sentence. That would take care of the vagueness problem. But then comes the overbreadth problem. Does that long and involved definition infringe on a “substantial amount” of constitutionally-protected conduct? Shigematsu waxes eloquently about the freedom of movement encompassing the “right of men [and women] to move from place to place, . . . to stand under open sky in a public park and enjoy the fresh air, to lie down on a public beach and enjoy a sunbath, . . . and the right to associate with others[.]” Id. at 610, 483 P.2d at 1001. So how does the County do it? How do you define camping without running into either one of these sea monsters? But is sleeping in the park a protected activity? Wouldn’t that be part of a “sunbath”? What about a moonbath? Is that just as constitutionally-protected as a sunbath? If so, then can Beltran and her friends sleep over?

But prosecutors should not get too upset by this. Perhaps Beltran and her friends were trespassing onto public parks and recreational grounds in violation of HRS § 708-814.5.

Saturday, November 17, 2007

Funny Things Happening at the Nonpublic Forum

In re: Casupang (HSC November 13, 2007)

Background. The HGEA, the exclusive union for government workers in Hawai'i, posted on a bulletin board in the fourth-floor office of the Department of Transportation an announcement that was anti-Lingle and urging its members to vote Democrat, esp. for Mayor Mufi Hannemann. A worker saw the announcement and was concerned. The DOT told HGEA to take down the announcement on the grounds that it was prohibited by the State Ethics Commission's "campaign restriction flier." The HGEA brought a prohibited labor practice complaint before the Hawai'i Labor Relations Board and lost. It appealed. The HGEA argued that, among other things, the gov't violated the First Amendment rights of the workers it represents when the State ordered it to take down its political materials.

Undeniable State Action. The HGEA must first show that the act at issue was state action. The ban was imposed by Gov. Lingle as an employer and executed by officials working on behalf of the State. The kind of speech involved is political, which fits squarely in the scope of protected speech. Undoubtedly, the State took action here.

Three Kinds of Gov't Property. The HSC next classified the three kinds of gov't property for First Am. purposes. A public forum is property traditionally designated for assembly and debate (e.g. streets and town squares) and any gov't regulation of them must be supported by a compelling interest. A limited public forum is property opened for public use for expressive activity and is subject to content-netural regulation (e.g. reasonable time, place, and manner); the ltd. public forum can be limited to only certain groups or topics of debate. Finally, there's the nonpublic forum which is subject any "reasonable restriction."

The HSC rejected the HGEA's claim that the board space was a public forum or a limited public forum on the grounds that the boards are not traditional places for debate like streets and plazas and that HGEA offered no evidence/case law showing that the bulletin board space was reserved for a public forum. The HSC also notes that although ltd. public fora may be created for a ltd. purpose such as use by certain groups, HGEA "does not cite to any case law in which a designated public forum was created for use by one group." Thus, the HSC held that the bulletin bd. space reserved for HGEA posting as provided in its collective bargaining agreement is a nonpublic forum subject to any reasonable restrictions.

Nonpublic Fora Allows Mere "Reasonableness." The HSC majority held that HGEA failed to argue that the restriction was unreasonable. Remember, once found nonpublic, the only kinds of unconstitutional restrictions are those that are unreasonable--content-based restrictions that discriminate among the viewpoints presented. Here the prohibition was against any and all campaign materials whether pro Democrat, Republican, Communist, or Libertarian. This, according to the HSC, was content-neutral and reasonable.

Justice Levinson's Concurrence. Justice Levinson concurred and CJ Moon joined. Levinson's concurrence, in this regard, went to the majority's assertion that HGEA did not raise any reasonableness arguments. Justice Levinson disagreed in this regard, but concluded that those argument--that the State's restriction thwarts the purpose of the CBA provision--was not persuasive.

Limited Public Fora Even More Limited? In concluding that the bulletin bd. space is a nonpublic forum, the HSC relied heavily on Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 US 37 (1983), where the US Sup. Ct. found an internal mail delivery system to be a nonpublic forum. In Perry, two unions vied for use of the mail system. One union was the exclusive representative of teachers. Another was an outside union challenging the state's exclusion from the mail system. The US Sup. Ct. concluded that the system was a nonpublic forum because it was not open to the public and upheld the exclusion. The HSC concluded that the DOT bulletin board, like the mail system, is not open to the public. Under Perry's facts, this makes sense. The outside union is part of the public. However, under these facts it's less so. HGEA is not arguing that the bulletin board is open to the public, it argues that the designated bulletin bd. space opens the union, as the exclusive representative of gov't workers, is open to HGEA. The HSC's counter that HGEA failed to cite case law allowing the designation of a public forum created for use by one group becomes relevant here.

But in doing that, has the HSC altered the definition of a limited public forum? When it extolled the three kinds of public property, the HSC, citing Perry, expressly mentioned that gov't property specifically designated for public use by certain groups and for certain topics still counts as ltd. public fora. Then again, if the absence of case law supporting that premise bumps it to a nonpublic forum, has the HSC read that part out of the definition of a ltd. public forum?

Labor Pains. The other issues in this case revolved around the Hawai'i statutes that allow unions to take concerted action on behalf of their members. Much of the discussions in these issues relate to the intricacies and expertise of labor law. Read the opinion to learn more.

No Foresseability Invites an Error that's Not Plain.


Moyle vs. Do Re Mi Karaoke (ICA Nov. 8, 2007)

Background. After a long night of drinking, Moyle went to the Do Re Mi Karaoke Bar in the wee hours to drink some more. As he was leaving the back door, Moyle was beat up and robbed by some other guy. Tupuola was found criminally liable. Moyle sued Do Re Mi claiming negligent failure to provide adequate security and negligently failing to protect its patrons. At trial, Moyle tried to get police reports about the incident into evidence, but the circuit court precluded them. Moyle also challenged the jury instructions. A jury trial entered a verdict in Do Re Mi's favor. Moyle appealed.

Failure to Define Foreseeability Errors Precluded by Invited-Error Doctrine. Moyle challenged two instructions that related to the foreseeability of criminal acts by a 3d party. The ICA held that this was invited-error. The invited-error doctrine prohibits a party who brings about the error at the trial level from raising that error on appeal. Kealoha v. Tanaka, 45 Haw. 457 (1962).

For jury instructions, invited error arises when the party appealing the contents of an instruction was responsible for the instruction; when the party agreed to the contested instruction; and when the party contends the omission of an instruction brought on by that party's own actions (e.g. party withdraws an instruction that the party later argues should've been read). In this case, Moyle withdrew a clear instruction on foreseeability, but failed to offer a substitute. Now, Moyle argues that there should have been an instruction. The ICA held this to be an invited error.

Not Plain Error Either. Invited error can be overlooked if it's plain error. The ICA took a rigorous plain-error analysis and would only recognize it if (1) the issue doesn't involve questions of fact; (2) the issue does not go to the "integrity of the fact-finding process"; and (3) the issue doesn't go involve questions of "great public import." As to the 2d prong, because the jury is the factfinder, the failure to instruct it would affect the integrity of its findings. In Montalvo v. Lapez, 74. Haw. 308 (1994), the HSC found plain error after its invited-error analysis. The error in Montalvo pertained to the failure to clearly defined "legal cause" to the jury. The HSC held that this was an error because "legal cause" is "a concept foreign to most non-lawyers[.]"

The ICA here distinguished Montalvo because, unlike "legal cause," foreseeability is a common term that can be understood by most non-lawyers. The ICA then engages in a nice discussion of forseeability and the duty of business owners, if any, to protect its patrons from criminal acts.
Generally, such criminal acts are so unlikely in any circumstance, that the burden of taking precautions against them almost always exceeds the risk absent a special relationship such as the business-establishment-patron relationship. There was an affirmative duty between Moyle and Do Re Mi. Nevertheless, according to the ICA, "forseeability" is a term that is generally understood by non-lawyer jurors. So while Do Re Mi did indeed have a duty to protect Moyle, and while the circuit court failed to clearly define the term, leaving out an instruction on "foreseeability" did not compromise the integrity of the jury’s findings and wasn't plain error either.

This could take us down a strange path. If plain error hinges on whether the concept that was not clearly defined is familiar to laypersons rather than lawyers, it'll be difficult in the future to determine just where exactly that line is. "Legal cause" may be familiar to lawyers and only lawyers. "Forseeability," is a common enough term. But what about something like, say "punitive damages"? Is that a term known only to lawyers? It is, after all, a term of art that needs to be explained and has been defined by courts. On the other hand, the same can be said about "foreseeability" and the opinons, including this one, that have waxed eloquently on the subject. The arguments from this line of reasoning could be hardly foreseeable.

Other Issues Did Not Warrant Reversal. As with many civil appeals, there were other issues in this case, and none went to a favorable result for Moyle. Thus, a victory for karaoke bars statewide.

Editor's Note-- This opinion was briefed by Kirstin Hamman. Thanks Kirstin!

Monday, November 12, 2007

For Mandatory Min., Priors Presumed Valid Unless Challenged.

State v. Heggland (ICA Nov. 8, 2007)

Discussed and Partly Overruled.

Background. Heggland pleaded guilty to Promoting a Dangerous Drug in the 3d Degree, HRS § 712-1243(1), and committing Prohibited Acts relating to Drug Paraphernalia, HRS § 329-43.5. The State sought a mandatory minimum term under HRS § 706-606.5 on the grounds that Heggland committed his promoting offense while on parole from a Colorado felony conviction. Thus, he was a "repeat offender" who committed the drug offense within the "max. term of imprisonment possible after a prior felony conviction." The State offered documents showing Heggland's prior conviction. Heggland even stipulated to having committed the drug offense in Hawai'i while he was on parole for the Colorado conviction. The circuit court denied the motion, however, because the State failed to show that Heggland had been represented by counsel or waived his right to counsel at the time of his Colorado conviction. The State appealed.

Prior Convictions Must've Been Counseled or the Right to Counsel Must've Been Waived Before They May Be Used at Sentencing. In 1979 the HSC held that before the sentencing court imposes the mand'y min., the defendant must be given reasonable notice, must be given a hearing, and the prior conviction must be est. by satisfactory evidence that he or she was represented by counsel or waived the right to counsel at the time the prior conviction was imposed. State v. Freitas, 61 Haw. 262 (1979), State v. Afong, 61 Haw. 281 (1979), and State v. Caldeira, 61 Haw. 285 (1979). The Afong rule, as it came to be known, came into conflict with the later innovation of presentencing reports, which typically includes a list of prior convictions, but fails to indicate whether the defendant had counsel or waived the right to counsel.

Sentencing in Five Easy Steps? The ICA later ruled that while the defendant does not bear the burden of proof in these matters, he or she must challenge the validity of the prior convictions. In State v. Sinagoga, 81 Hawai'i 421 (App. 1996), the ICA held that in ordinary sentencing situations, including mand'y mins., once the sentencing judge is apprised prior convictions (usu. in the form of a presentencing report), it is up to the defendant to bring a good-faith challenge on the record that the criminal conviction was not counseled or was not against the defendant at all. The Sinagoga court laid out five steps in "ordinary sentencing procedures." The HSC adopted these steps by reference in State v. Mitsuda, 86 Hawai'i 37 (1997).

First, the sentencing court must give copies to the parties of the presentencing report and any other report about the deft's priors.

Second, the deft can then contend that any prior was w/o counsel or was not entered against him by stating on the record why the prior cannot be used. This is the good-faith challenge.

Third, before imposing sentencing, the sentencing court must inform the deft that each prior that is not challenged is presumed to be w/o defect and that good-faith challenges cannot be brought once the sentence has been imposed absent good cause.

Fourth, if a prior is challenged, the court must decide before imposing the sentence, whether the State met its burden of proof to the "reasonable satisfaction" of the court by showing that the prior is w/o defect (i.e. was in fact counseled, deft waived the right to counsel, or the prior was in fact entered against the deft). The Hawaii Rules of Evidence apply.

Fifth, if the sentencing court is aware that the prior was w/o counsel or wrongly entered against the deft, it cannot impose a sentence until stating on the record that the defective sentences were not considered as a basis for the sentence.

Without a Sinagoga Challenge, the Afong Rule is Not Implicated. The ICA held that Heggland failed to challenge the validity of his Colorado conviction. In other words, he did not, after receiving a copy of the presentence report, but before being sentenced, object to the use of those priors listed in the report on the grounds that they fail to show that he had not been counseled, that he waived his right to counsel, or that they had been entered wrongly against him. Because he failed to challenge the validity of the priors listed against him, the State was not obligated to prove show that the priors were from the strictures of Afong. The ICA also noted that Heggland stipulated to the prior conviction and that at the time he committed his Hawai'i offense, he was still on parole from that prior.

Priors for Mand'y Min. Purposes Must be Timely. Heggland also opposed the mand'y min. on the grounds that his Hawai'i conviction was not close enough to fall w/in the time frame of HRS § 706-606.5(f) (to impose the mand'y min., the offense must have been committed "within the maximum term of imprisonment possible after a prior felony offense from another jurisdiction."). In other words, for a prior to go to the imposition of the mand'y min., the new offense must have been committed w/in the maximum prison term carried over by the prior conviction. The ICA examined the statutory maximum under Colorado law, which requires mandatory parole for some offenses even when the defendant serves his or her entire prison sentence. The ICA held that because it was undisputed that Heggland was still serving his mandatory parole under Colorado law and because parole is not a new sentence but an extension of the old one, his Hawai'i offense had been committed w/in the maximum term of imprisonment.

Can A Defendant Challenge, AND Stipulate? The ICA, per curiam, vacated/remanded this case because the State did not have to show the priors were invalid unless the defendant challenged them in the first place. What's curious is none of the prior case law addresses the issue of stipulating to the existence of the prior conviction. Nevertheless, the ICA noted several times that Heggland stipulated to the Colorado conviction. The case law suggests that if Heggland made the good-faith challenge and objected to the validity of the prior, that would be enough under Sinagoga and thus the burden of proof would fall squarely onto the State to show that the prior is adequate. Practically speaking, this could be damaging for the defendant when the State brings out a bunch of nasty facts from the defendant's past. The ideal solution calls for Heggland to stipulate to the existence of the prior conviction, but still make a good-faith challenge that he was not counseled when he was convicted.

It could even be enough to simply say on the record that the defendant is raising a "Sinagoga challenge" on the grounds that the State has not shown he had counsel or that he had waived his right to counsel, but this is still risky business. After all, showing that the defendant was counseled or that he waived the right to counsel could be a piece of cake. It may just take a few phone calls, a court document from another State, or even the telephonic testimony of an unwilling public defender for the State to show to a "reasonable satisfaction" that the prior is just fine. Perhaps the better method of attack for the defendant, at least on appeal, would be alleging error from the third step in Sinagoga--that the sentencing court failed to inform the defendant before imposing sentence that he has to make the good-faith challenge. This seems to put the duty on the sentencing court. A sly prosecutor may also consider reminding the sentencing court about this duty to inform given how easy it may be to drag out bad facts relating to the prior and how it easy it might be to prove that the prior is w/o defect by a "reasonable satisfaction."

Thursday, November 1, 2007

The Triumphant Return of Extended Sentencing

2007 Haw. Session Laws (Special Session) HB No. 2 (October 31, 2007)
The Legislature Strikes Back. Earlier this month, by order of the US Sup. Ct., the HSC, in State v. Maugaotega, held that the extended sentencing statutes violated the Sixth Amendment. The court found the law unconstitutional and refused to order the empanelling of a jury to sentence Miti Maugaotega on the grounds that the legislature intended to keep sentencing matters w/in the discretion of the court. Hmm. Following the heels of the Superferry-Bail-Out bill, the Legislature amended HRS §§ 706-661, -662, and -664 because the HSC "declined to exercise its inherent judicial power to order on remand that a jury be empanelled."

Upping the Ante. Extended sentencing is available only when the defendant has been convicted of a felony. For murder in the 2d, the sentence is upped to life w/o parole; class A felonies are upped to life; class Bs upped to 20 years; and class Cs for 10 years. The sentencing court orders the maximum, and the Hawai'i Paroling Authority sets the minimum, just like before. HRS § 706-661.

Fax fo' da Max. The extended terms in HRS § 706-661 can only be imposed "if it is proven beyond reasonable doubt that an extended term of imprisonment is necessary for the protection of the public and that" the defendant falls under one of six types of really bad persons: (1) the persistent offender (has 2 or more felonies); (2) the "professional criminal"; (3) the "dangerous person"; (4) the "multiple offender"; (5) the offender's certain crime is "against the elderly, handicapped, or a minor"; or (6) the offender committed a hate crime. All six have special meanings defined by HRS § 706-662.

Enter the Jury. First, the defendant has the "right to hear and controvert the evidence against [him/her] and to offer evidence upon the issue before a jury; provided that the defendant may waive the right to a jury determination under this section, in which case the determination shall be made by the court." HRS § 706-664.

This ushers in a slew of yet-to-be-answered questions. How does one instruct a sentencing jury? Is this jury the same one that heard the facts leading to the defendant's conviction? It does not necessarily have to be. Can a defendant waive the right to a jury at trial, but preserve the right to a sentencing jury? What about the other way around? That leads to interesting places. Though the language of the law does not suggest it, the right to have a jury hear extended sentencing matters is the same constitutional right to have a jury trial. Can a defendant waive part of the same right? If the statute bifurcates it, as it did here, then perhaps so. Then again, is the sentencing jury really the constitutional right, or is it the legislative attempt to remedy the constitutional violation stemming from Apprendi?

A New Notice Requirement In Town. A close reading of HRS § 706-664 shows that either the prosecutor upon motion or the court can bring forth extended sentencing. In such a case, notice of the intention to bring extended terms must be brought w/in 30 days of the arraignment. Moreover, only the prosecutor can make a good cause argument for the 30 days (and not the judge, who is bound to the 30-day period). The 30-day pd. can also be waived or stipulated.

Once facts found, discretion goes back to the sentencing court. Finally, as a last surprise, the actual imposition of the extended sentence after the jury found BRD that the defendant should be subjected to the extended sentence is left to the discretion of the sentencing court! HRS § 706-662 provides that the sentencing court "may" impose the harsher term after the factfinder makes its necessary findings. This could be the traditional discretion afforded to sentencing judges after all. This discretion to impose the sentence makes sense. Once the jury has found BRD facts used to go beyond the statutory maximum the constitutional problem is resolved, and the judge is free to determine whether to impose or not. In fact, it is possible that the sentencing process could start all over again once the sentencing jury renders its findings. That would stretch things out quite a bit, huh? This also shows that the Legislature's intention to keep sentencing discretion within the ambit of the judge is consistent with the judicial restraint by the HSC.

Night of the Living Dead Letter. Finally, there's the retroactivity debacle. It is only appropriate to have this law enacted on Halloween 2007. Rising from the graveyard of unconstitutional laws comes now section five of the the extended sentencing law. In addition to having this new law apply to sentences pending during or commencing after the time of enactment--October 31, 2007--prosecutors have discretion to resentence defendants whose extended terms were set aside or deemed invalid based on older, unconstitutional laws. The public defender's office is ready to mount a challenge for this one. For their clients, Oct. 31, 2007 is a scary day indeed.

Wednesday, October 31, 2007

District Ct. May Compel Discovery of Laser Gun Specs

State v. Lo (HSC Oct. 30, 2007)

Background. The defendant, Jack Miller, was cited for excessive speeding in violation of HRS § 291C-105(a)(1) for allegedly driving 76 mph in a 35-mph zone. The police measured the speed of Miller's car with a laser gun. Pursuant to HRPP Rule 16, Miller sought particular items relating to the laser gun: the manufacturer's operation and maintenance manuals; certification documents; police maintenance records; manufacture and acquisition dates; warranty documents; laser readings; firearm qualification test results for the officer who cited Miller; fixed distance used to calibrate the laser gun and the location where the calibration took place; and “delta distance” used to calibrate the laser gun and location. The State refused to disclose, and Miller filed a motion to compel their discovery on the grounds that these items were discoverable when the conviction is based solely on the laser gun reading. The district court ordered the disclosure of only the laser unit calibration distance and calibration distances, but denied everything else. The State filed a petition to the HSC for writ of mandamus requesting a vacation of the district court's order.

Standard of Review. The HSC has original jurisdiction over a writ of mandamus. The writ is an extraordinary one appropriate only when necessary “to confine an inferior tribunal to the lawful exercise of its jurisdiction.” Moreover, the mandamus is not a substitution for an appeal, and the HSC must determine at the outset whether a mandamus petitioner may have a remedy by way of appeal or any other means of relief from the trial court's action. However, even in the absence of appellate remedy, the writ will not be granted—even if there was error—unless the judge exceeded his or her jurisdiction; committed a “flagrant and manifest abuse of discretion;” or refused to act where it was legally obligated to act.

State's Request for a Writ of Mandamus is Improper. HRS § 641-13 authorizes ten circumstances when the prosecution may bring an appeal. The State is not authorized to appeal this discovery order and thus its only available remedy would be a writ of mandamus.

When it comes to compelling a party to disclose material in a criminal case, the trial court is required to do so in felony cases, has some discretion in misdemeanors, and is prohibited from doing so in violations. HRPP Rule 16. For misdemeanors, the district court (and only the district court as they hear all misdemeanors) is afforded this discretion “[u]pon a showing of materiality and if the request is reasonable[.]” Finally, the only those items described in HRPP Rule 16(b) are discoverable.

The State argued that the laser gun calibration distances and locales were beyond the scope of discovery, and thus the judge acted beyond its scope of his authority. The HSC disagreed because information on calibration distances and locations for the laser gun used by the officer is material to challenging the accuracy of the particular laser gun used to determine Miller's speed. Failing to prove Miller's speed could lead to an acquittal of the charged offense or even a conviction of a speeding violation. Therefore, the district court judge did not exceed his authority in granting in part Miller's motion to compel.

Mandamus: a two-step process? The standard of review for a Writ of Mandamus is tricky. It appears that if the order or decision by the “inferior tribunal” (this includes agencies) is not appealable, then the HSC goes on to determine whether the writ is warranted. Of course, if the parties could appeal from the decision, it would seem that there is no original jurisdiction, and the HSC should deny and wait for the issue to come up on appeal. If there is no appellate remedy, then the HSC moves on to the question of whether the “extraordinary” writ of mandamus is appropriate (i. e. the lower court exceeded its authority).

On the merits of this case, the HSC held that district court judge did not exceed their authority in compelling the disclosure of evidence pertaining to calibration and location for speeding prosecutions. This is largely due to the fact that the laser gun is the only way to determine the defendant's speed. At its broadest, one can read this case to indicate that the district court judge does not exceed its authority when compelling the disclosure of the specific mechanics and workings of an instrument used to prove an essential fact or element in a prosecution. This may include those items that were denied by the district court below as well as the specs and calibration for radar guns or even specs about the police vehicle used to “pace” the allegedly speeding defendant.

When Priors An Element, Don't Stip w/o Colloquy

State v. Murray (HSC Oct. 29, 2007)

Background. The State charged Murray with Abuse of a Household or Family Member in violation of HRS § 709-906, which requires the defendant to be charged as a class C felony when the charged offense occurs within two years of the 2d or subsequent conviction. At trial, the defense counsel stipulated to Murray's prior abuse convictions. The stipulation was read into evidence to the jury w/o a limiting instruction. The jury found Murray guilty as charged. The ICA affirmed.

Prior Convictions are “Elements” to the Offense as a Felony. Because HRS § 709-906(7) mandates the State to charge as class C felony based on prior convictions of the same statute made w/in two years, (first-time convictions under this statute are misdemeanors), the HSC held that the prior convictions were essential elements that must be proven by the State beyond a reasonable doubt. See HRS § 702-205; State v. Aiwohi, 109 Hawai'i 115, 123 P.3d 1210 (2005) (essential elements are the conduct, results of the conduct, and the attendant circumstances—that is, “any circumstances defined in the offense that are neither conduct nor the result of conduct[.]”). Thus, the HSC held that it is a defense to the Abuse of Household Member Felony by asserting that the offense was not the defendant's “third of any subsequent offenses . . . occur[ring] within two years of a 2d or subsequent conviction.”

As Proving the Prior-Convictions Element is a Fundamental Right, there must first be a Knowing and Voluntary Waiver by the Deft. To Stipulate. Having held that prior convictions are essential elements in felony prosecutions of HRS § 709-906, the HSC reasoned it too, like all other essential elements, must be proven by the State beyond a reasonable doubt. Nevertheless, the right to having elements proven BRD can be knowingly and voluntarily waived “directly from the defendant.”

The HSC held that based on State v. Ibuos, 75 Haw. 118, 857 P.2d 576 (1993), and State v. Tachibana, 79 Haw. 226, 900 P.2d 1293 (1995), the defendant cannot waive his or her fundamental right unless the trial court “first engage[] in a personal on-the-record colloquy with the defendant to ensure such rights are voluntarily and knowingly waived.” Here, Murray did not waive his right to have the priors proven by the State.

Is Failing to Object is NOT Waiver Here. The HSC rejected the State's contention that Murray's failure to raise the issue and thus waived his fundamental right. The HSC explained that many defendants are unaware of the fact that they have a fundamental right to have all the elements proven BRD by the State or that “an objection with respect to waiver or stipulation of an element by defense counsel must be objected to during trial or the right to object may be lost.” Therefore the only way to truly ensure that the defendant understood that a stipulation to a prior satisfied the State's burden of proof for that element is the Tachibana colloquy.

Upon Stipulation to the Prior and Colloquy, the Ct. Must Issue a Limiting Instruction. Finally, the HSC held that the family court erred in failing to give a limiting instruction to the jury about the stipulation. Thus, when the defendant seeks to stipulate to prior convictions, the trial court must accept them, but only after ensuring that the defendant is knowingly and voluntarily waiving the right to have them proven BRD by engaging in an on-the-record colloquy. Once accepted, the court must instruct the jury that (1) felony convictions for violating HRS § 709-906(7) require the State to prove that the defendant has at least two prior convictions w/in two years of the charged offense (the instruction must not indicate that the two priors were for the same statute); (2) defendant has stipulated to at least two misdemeanor convictions; (3) the stip is evidence of the prior-conviction element; (4) this element of the charged offense must be taken as conclusively proven; (5) the jury cannot speculate about those priors; and (6) the jury cannot consider the priors for any other purpose.

Justice Nakayama's Dissent. Justice Nakayama was the sole dissenter. She believed that Tachibana was misapplied. Specifically, Justice Nakayama believed that the majority erroneously rejected the State's contention that the Defendant's failure to object arose to waiver of his rights. Tachibana and the colloquy was inapplicable to Murray because, unlike Tachibana, there was no evidence that Murray's counsel deprived him of his fundamental right. (Tachibana's defense team, over objection by Tachibana, made the strategic decision to refuse to let him testify in his own defense.) In this case, Justice Nakayama described the stipulation as “a clever show of gamesmanship, which . . . implicated the defendant's constitutional right[.]” Justice Nakayama, however, did agree with the majority that a limiting instruction should have been given.

In Sum: Abuse as a Felony v. Abuse as a Misdemeanor and Waiver of Fund. Rts. The first time a person violates HRS § 709-906, he or she is guilty of a misdemeanor. When there are two or more convictions under the same statute, however, the 3d conviction “shall be charged with a class C felony.” The HSC has held that the prior convictions are an essential element that must be proven BRD, and that, if the defendant stipulates, the family court is required to engage in a Tachibana-like colloquy. If a jury has been empanelled, then the court must give particular limiting instructions. This begs the question: what happens if the state fails to prove this element? The language in HRS § 709-906(7) requires the State to charge it as a class C. The legislature has taken away prosecutorial discretion, and has mandated that it is a felony. This strict language suggests acquittal, and suggests that the option to charge the offense as a misdemeanor as a lesser-included is unavailable.

The HSC has also read Tachibana broadly. The case suggests that the best way to ensure that the waiver of a fundamental right is done by the defendant knowingly and voluntarily, the trial court must engage in an on-the-record colloquy. Justice Nakayama is concerned that this broad interpretation may overcome the well-established rule that the failure to object constitutes waiver. Then again, the HSC's rationale for overcoming the failure-to-object-constitutes-waiver rule is that defendants in some circumstances are unaware that they have certain fundamental rights (such as the right to have the state prove essential elements BRD). Should a circumstance arise where the defendant either is made aware of a fundamental right or it is commonly known that certain rights exist (like the right to have a jury perhaps?), but fails to object anyway, then the rationale here would not fit this holding would be inapplicable.

Further Reading. Reading this case reminded me of the US Sup. Ct's split decision: Alamandarez-Torres v. United States, 523 U.S. 224, (1998). In that case, the issue was whether the prior convictons in a federal criminal statute were factors used by the sentencing court to enhance a sentence or elements of the crime that must be proven by the jury. The plurality held that they were part of the latter and thus, need not be proven BRD by a jury. This conclusion later developed into the prior-convictions exception to Apprendi.

The HSC came to the opposite conclusion and held that prior convictions are elements needed to be proven BRD. Granted, these are different statutes, but similarities in the issue are intriguing. Could this be the start of the much-anticipated erosion of the prior-convictions exception to Apprendi? It's too early to tell.

Sunday, October 21, 2007

Confronting the Confrontation Clause

State v. Fields (HSC Oct. 11, 2007)

Background. Reginald Fields lived with his girlfriend, Staggs, on Kauai. One night their neighbor and landlord heard an argument between Fields, his friend, Richards, and Staggs. The landlord also heard slapping sounds and a hard thud. The landlord testified, without objection, that she heard someone yell, "Reggie, get off her." The landlord called the police. Two officers went to the house and found Staggs all alone. She had scratches on her face and shoulder and her clothes were torn. Staggs told the police that the other night, her mother came with a truck full of men and beat up Fields. This upset Fields and he took it out her by punching her in the face.

Fields was charged with abuse of a family or household member in violation of HRS § 709-906(1). At a bench trial Staggs testified. She did not recall the statements she gave to the police. On cross-examination, Staggs admitted that she had been drinking that night and that she had provoked Fields by threatening to break his surfboard. One of the police officers also testified about what Staggs said to him when he came to the home. The court found Fields guilty as charged based, in part, on the landlord overhearing the statement, "Reggie, get off her," and on the Staggs' statements to the police.

The Confrontation Clause in Hawai'i. The constitutional right to confront witnesses in a criminal proceeding generally bars hearsay statements whenever the declarant is unavailable for cross-examination. However, the trial court may allow into evidence a hearsay statement so long as it meets the two-part test from Ohio v. Roberts, 448 U.S. 56 (1980)--(1) the declarant is unavailable and (2) the hearsay statement bears an "adequate indicia of reliability" (i.e. it falls within a "firmly-rooted hearsay exception" or there is a showing of a particularized guarantee of trustworthiness based on a totality of the circumstances).

Then came Crawford v. Washington, 541 US 36 (2004). In that case, the US Sup. Ct. took a closer look at the Confrontation Clause and the historical milieu from which it came, and held that the Confrontation Cl. precludes the admission of any "testimonial" hearsay statement. Such a statement is admissible only if (1) the declarant is unavailable and (2) the defendant had an opportunity to cross-examine. Nontestimonial statements, however, do not implicate the federal constitution and their admissibility was to be determined by State hearsay law. Crawford did not define a "testimonial" statement, but did note that statements "made under circumstances which would lead an objective witness reasonable to believe that the statement would be available for use at a later trial" are more likely than not "testimonial." Later, in Davis v. Washington, 126 S.Ct. 2266 (2006) the US Sup. Ct. held that a statement made to a police officer under circumstances showing that the purpose of the police questioning is to enable police assistance in an ongoing emergency is NOT testimonial, but if the purpose of the police questioning is to "establish or prove past events potentially relevant to later criminal prosecution[,]" it is testimonial.

The HSC concluded that the Confrontation Cl. precludes any hearsay statement made by an unavailable declarant when the statement is "testimonial." If nontestimonial, HSC held that the two-step Roberts test applies. However, the HSC, based on footnote 9 in Crawford, held that the Confrontation Cl. does not preclude the admission of a hearsay statement when the person who uttered the statement appears at trial and is cross-examined about that out-of-court statement.

Neither test is invoked? The HSC applied neither the testimonial-thus-Crawford nor the nontestimonial-thus-Roberts analysis with regard to Staggs' statements to the police. Instead, it held that the admission of a prior out-of-court statement does not violate the Hawai'i Confrontation Cl. when (1) the declarant appears at trial and (2) the defendant is afforded a meaningful opportunity to cross-examine the declarant about the prior statement. First, Staggs appeared at trial and testified. Second, although Staggs claimed memory loss about her prior statement to the police on direct examination, Fields had a meaningful opportunity for cross-examination. Fields' counsel, on cross, presented evidence showing that Staggs had been drinking and that she may have provoked Fields. This proved to be an adequate opportunity to cross-examine. This, according to the HSC, satisfies the Confrontation Cl. in Hawai'i.

Landlord's Statements Barred by Failing to Raise Issue to ICA. The HSC moved on to determine whether the landlord's statements should have been kept out, but did not get to the merits of this argument because Fields failed to raise the argument in his opening brief to the ICA (he didn't raise it until the ICA ordered the filing of supplemental briefs). The HSC therefore found no "grave error" on the part of the ICA for ignoring the issue. Moreover, the HSC declined to notice plain error at the appellate level. Nonetheless, the HSC, in footnote 15, observed that the statement, "Reggie, get off her[,]" is nontestimonial and its admissibility would have depended on the Roberts test.

Justice Acoba's Dissent. Justice Acoba believed that Staggs' statement to the police was hearsay that failed to meet any exception allowing its admission, and that admitting the statement arose to plain error. This plain error should have been noticed by the ICA because it adversely affected Fields' substantial rights. This alone would have reversed the judgment. Justice Acoba also notes that the standards for taking up certiorari (grave errors by the ICA or obvious inconsistencies in the ICA disposition with other appellate opinions) are not limitations of the HSC's discretion and it can (and in this case) should recognize plain error.

Justice Acoba also weighed in on the Confrontation Cl. analysis. He would have held that Staggs' statement is "testimonial" and, more importantly, Staggs was unavailable for Hawai'i's Confrontation Cl. Just because, argues Justice Acoba, Staggs was physically present at trial and testified does not mean she was "available." Justice Acoba would afford a broader reading of "availability" under the state confrontation clause and equate it with the "availability" requirements under the Hawai'i Rules of Evidence (HRE). Therefore, failing to recall the statements made at trial would render the declarant "unavailable."

In Sum. First, there's the "testimonial/nontestimonial" distinction. When a statement is "testimonial," the federal constitution is implicated and these statements are not admissible if the declarant was unavailable. When it is "nontestimonial" the federal constitution is not implicated and Hawai'i law steps in. Filling the void is the the Roberts test: it can only be admitted if the statement is reliable and if the declarant is unavailable. The tricky part arises with unavailability. Here, the HSC majority did not expressly hold (Justice Acoba points it out) that Staggs' statements were "testimonial." Instead, it found no Confrontation Cl. preclusion because Staggs appeared at trial and testified, as best as she could, about the statement thereby providing an adequate opportunity to cross-examine her. Moreover, there was a meaningful opportunity to cross-examine her in general. This amounted to "availability" and its ultimate admission into evidence. In essence, the HSC majority has read Crawford to mean that "availability" is not the same thing as "availability" under the HRE. For constitutional purposes, it simply means that the declarant appeared at trial and the defendant had a meaningful opportunity to cross-examine the declarant about the statement. Whether the declarant could remember the statement or not is of no concern.

So what happens once the statement is found testimonial and the declarant is available? Just because the Confrontation Cl. has no problem admitting it, does not mean that the rules of evidence are not implicated. The only time there would be a problem would be if the HRE allow it, but the Confrontation Cl. would not. Therefore, the evidentiary arguments would still apply after this analysis. The HSC never got to these points because the defense counsel never raised these arguments at trial, and before the ICA, which leads to Justice Acoba's other big concern. The HSC majority should have found plain error on the part of the ICA.

In any event, the Confrontation Clause question is only the first step. If a statement survives that part, either under the testimonial-thus-Crawford test or the nontestimonial-thus-Roberts test, it still is subject to the rules of evidence (true, the Roberts test incorporates hearsay rules under the HRE, but a hearsay statement though admissible, is nonetheless subject to HRE Rule 403).