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).

Wednesday, October 17, 2007

Unreasonable notice for HRE Rule 404(b), Aganon distinguished, other tidbits

State v. Pond (ICA Oct. 11, 2007)

Vacated and Remanded by Hawai'i Supreme Court

Background. Pond was charged with abuse of a household member in violation of HRS § 709-906 and interference with reporting an emergency or crime in violation of HRS §710-1010.5. Just before trial, Pond's counsel requested to continue the trial in order to file a written notice to present evidence showing bad conduct under Hawaii Rules of Evidence (HRE) Rule 404(b). Counsel explained that he intended to show evidence at trial that two weeks before the incident, the complaining witness attacked Pond. Counsel could not file notice of this HRE Rule 404(b) evidence any sooner than today because Pond was unable to recall the exact date of the prior incident until the morning of trial. The court denied the request to continue.

At trial, the complaining witness testified that Pond, her live-in boyfriend at the time, came home drunk one night and attacked her. She tried calling the police on her cell phone, but he took it from her and threw it against a wall. She walked to the police station. Pond testified that he had dinner with a lady friend and came home. When the complaining witness smelled the perfume of another woman, she flew into a rage and bit him. She also attacked him. Pond testified that he had no choice but to push her back. She fell to the ground and started crying. Pond also denied throwing her cell phone and explained that it fell onto the ground. The jury found Pond guilty as charged.

"Reasonable notice" of HRE 404(b) evidence assessed on a case-by-case basis, reviewed for abuse of discretion. HRE Rule 404(b) requires those who intend on using evidence of other crimes, wrongs, or acts at trial to provide "reasonable notice" in advance of trial. The ICA held that the "reasonableness" of the notice in 404(b) is a case-by-case approach. It follows, then, that a trial court's determination of "reasonableness" involves a "judgment call" and, therefore, is reviewed on appeal for an abuse of discretion, rather than de novo.

The ICA also turned to the twin rationales underlying the federal equivalent of HRE Rule 404(b)--prevention of surprise at trial and the early resolution of admissibility issues--but was careful to recognize that HRE Rule 404(b) differs from the federal one in three significant ways: (1) notice applies to both parties; (2) in addition to providing the date and location of the prior bad act, HRE Rule 404(b) notice calls for a description of the "general nature" of any evidence; and (3) the right to be notified that this evidence is to be used at trial does not depend on a motion or request by the other side (i.e. it's automatic). Despite these differences, the federal rationales are still "relevant in determining the reasonableness of [the] notice provided."

In reviewing the case here, Counsel did not provide notice of the intent to use HRE Rule 404(b) evidence until the final moments before trial. The ICA observed that Counsel never explained why he could not have provided at least an approximate time of the alleged bad act instead of an actual date. The ICA held that the trial court did not abuse its discretion in finding the notice "unreasonable." Finally, the ICA observed that Counsel was wrong to think that written HRE Rule 404(b) notice needed to be filed. The rule does not require the notice to be in writing.

Jury Instruction on Justification Defense Not Erroneous. Under Hawai'i law, the use of force is justified when a person reasonably believes that the force is immediately necessary for protection. It is "error[, however,] to judge the reasonableness of a defendant's viewpoint based on circumstances shown in evidence but of which the defendant is not aware." State v. Augustin, 101 Hawai'i 127, 128, 63 P.3d 1097, 1098 (2002). Pond argued that the trial court erred by not offering an instruction that stresses that determinations of reasonableness are based on the viewpoint of a reasonable person in the defendant's position. The ICA held that the justification instruction ("A person employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be[.]"), is consistent with the justification defense in HRS §703-304(3) ("a person employing protective force may estimate the necessity thereof under circumstances as he believes them to be[.]") and adequately prohibits the jury from assessing those circumstances unknown to the defendant at the time. Thus, there was no error.

Aganon distinguished. The trial court also instructed the jury that the State had to prove beyond a reasonable doubt that Pond (1) intentionally or knowingly engaged in conduct and (2) he intended or knew that the conduct prevented a victim or witness to a criminal act from calling 911. To be criminally liable for violating HRS § 710-1010.5, however, the defendant must (1) engage in conduct (2) resulting in the interference of a 911-call, etc. (3) by a victim to or witness of a criminal act. Pond argues that the jury instruction for HRS § 710-1010.5 combined the attendant-circumstances element with the result-of-conduct element and thus, it misled the jury into thinking that it could convict without finding that Pond knew the complaining witness was a victim of a crime. The State concedes this error, but argued it was harmless beyond a reasonable doubt.

The ICA turned to State v. Aganon, 97 Hawai'i 299, 36 P.3d 1269 (2001). In that case, the Hawai'i Supreme Court noted that the trial court erred in instructing Aganon's jury on murder in the 2d degree by listing of the state of mind as a material element and conflating the conduct with the result-of-conduct element. The trial court also instructed the jury on the definitions of "intentionally" and "knowingly" and its relationship to three elements without identifying these elements in murder in the 2d degree. These instructions, according to the HSC, were not reversible error. What reversed Aganon's conviction was the trial court's response to a jury instruction (the jury inquired whether all of three elements in a crime must be found intentionally or knowingly, and the court responded no, finding the state of mind with one would suffice).

The ICA noted that the instructions here were like those in Aganon: "while technically erroneous, [it was] substantially correct" because they contained all of the elements in the offense. The ICA held that it was "reasonably clear" that the jury would not convict Pond without finding that he knew the complaining witness had been a victim of a criminal act.

No prosecutorial misconduct. The last issue on appeal was Pond's allegation that the prosecutor engaged in misconduct by misstating the elements in the interference offense. The prosecutor at closing argument told the jury that there are two elements to the interference offense--that Pond engaged in conduct and that that conduct prevented the complaining witness from calling 911. The ICA held that this comment did not prejudice Pond because the jurors had been instructed that "[w]hat [the lawyers] say [at closing argument] is not evidence[]" and that they "were not bound by how [the lawyers] interpret or remember the evidence." Thus, there was no prosecutorial misconduct.

Two things: "Reasonable" 404(b) notice and Aganon errors. The ICA has charted new ground with the issue of a "reasonable" 404(b) notice. It appears that at the trial level, notice under HRE Rule 404(b) must state the date, location, and general nature of the evidence sought for admission and be "reasonable." Reasonableness is assessed on appeal for an abuse of discretion. It is determined on a case-by-case basis. But what is "reasonable" for trial courts? Perhaps the twin rationales--prevention of surprise at trial and early resolution of admissibility issues--are some guide. Moreover, the ICA noted that nothing in the rules requires that his notice be written and that the date (or location for that matter) be exacting. Counsel's excuse in this case was that he did not know the actual date of the incident, but he might have had some vague idea as to when it happened.

The ICA also distinguished Aganon. Has the ICA limited Aganon to those cases where the judge instructs (assuming that the best way to characterize a response to a jury communication is an instruction) the jury that it need not find the state of mind to all three elements? Under this distinction, it is not Aganon error when an instruction conflates the elements and the prosecutor at closing arguments misstates the law by commenting on that conflation. The best rationale for this distinction may be based on the fact that Aganon clearly puts the responsibility of clear jury instructions on the trial court. Comments by the lawyers are not instructions. Perhaps, it would have been different if Counsel had objected to the instruction from the start. If denied the objection and the conflated elements were commented upon at closing, Counsel could have objected again. Then the responsibility is back on the trial court.

Friday, October 12, 2007

Extended sentencing: partly extrinsic, partly intrinsic, all unconstitutional.

State v. Maugaotega (HSC Oct. 1, 2007)

Background. Arising from five separate cases, Maugaotega was convicted of 22 counts ranging from attempted murder to robbery to sex assault to promoting drugs. The State filed five separate motions for extended terms of imprisonment pursuant to HRS §§706-662 and 706-661. At a sentencing hearing, the circuit court concluded that Maugaotega was a "multiple offender" and that his "criminal actions were so extensive that the sentence of imprisonment for an extended term is necessary for the protection of the public." The sentencing court granted the State's motions and sentenced Maugaotega to life.

On appeal Maugaotega argued that the sentencing court's findings violated his Sixth Am. rights based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). The HSC rejected his arguments, and affirmed. Maugaotega then petitioned cert. to the US Supreme Court, and in 2007 cert. was granted. The high court vacated the HSC's opinion and remanded the matter back to the HSC for reconsideration in light of Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856 (2007).

Hawai'i's intrinsic/extrinsic-factor analysis is bad law. For years, our jurisdiction justified extended sentences based on a distinction of intrinsic and extrinsic factors. Factors "intrinsic to the offense charged" are "contemporaneous with, and enmeshed in, the statutory elements of the proscribed offense" and thus, had to be proven beyond a reasonable doubt by the trier of fact. "Extrinsic" factors, on the other hand, "are separable from the offense itself and involve consideration of collateral events or information." The various factors laid out in HRS § 706-662 were extrinsic or intrinsic were answered by appellate courts in piecemeal fashion. This scheme did not, according to the HSC, offend Apprendi and progeny (i.e. any fact, not including a prior conviction, may be used by the sentencing court to extend sentence beyond the statutory max. unless proven by the trier of fact beyond a reasonable doubt.) . Now, however, the US Supreme Court in Cunningham v. California has "nailed down the proposition that 'facts' included any findings of fact made by a judge -- even those pertaining to matters within the traditional sphere of judicial sentencing discretion -- that were prerequisites to the imposition of an extended sentence term."

Extended sentencing statute unconstitutional. Because "(1) HRS §706-662, in all of its manifestations, authorizes the sentencing court to extent a defendant's sentence beyond the 'standard term' authorized solely by the jury's verdict[,] (2) by requiring the sentencing court, rather than the trier of fact, to make an additional necessity finding that (3) does not fall under Apprendi's prior-or-concurrent-convictions exception, [the HSC held] that the statute is unconstitutional on its face." The HSC turned to legislative attempts to save extended-term sentencing with Act 230, but concluded that it would not survive in light of Cunningham. The HSC projected that the Cunningham court would "obviously characterize any extended term sentence based upon a sentencing court's necessity finding -- regardless of the particular statutory source of that finding -- as an unconstitutional denigration of the jury's role, because such a system would be deemed to allocate to judges sole authority to find facts permitting the imposition of an upper term sentence, [thus] violating the Sixth Amendment."

No special jury for sentencing. The HSC declined to exercise its inherent power to have a jury empanelled to find any of the facts needed to extend a defendant's sentence beyond the statutory maximum based on the legislative intent behind Act 230, where the legislature sought to preserve the power to extend sentences to the judge, and not a jury. Instead the HSC remanded the case for resentencing.

Justice Acoba's Dissent. Justice Acoba dissented on the grounds that it was improper to rely on United States v. Booker, __ U.S. ___, 125 S.Ct. 738 (2005) because neither party cited it, and, more importantly, because the case does not raise the issues discussed in Booker -- whether the United States Sentencing Guidelines violated the Sixth Amendment; and, if so, whether those guidelines would be inapplicable. Justice Acoba would instead have vacated the extended terms and remand for resentencing based on Apprendi. Justice Duffy joined in this opinion.

The million-dollar question. After the US Sup. Ct. blew the wind from the sails of the intrinsic/extrinsic distinction, it was only a matter of time before extended-term sentencing would be found unconstitutional and, thus, extended-term sentences unlawful. As a result, there have not been too many extended-term sentences these days. As a matter of fact, the prosecution has avoided this mess--whether it be an intrinsic/extrinsic factor or a Six Amendment violation--by recommending consecutive sentences against the defendant who has been convicted of several offenses.

Perhaps the most important question hovering about is whether Maugaotega applies retroactively to those carrying out their extended-term sentences. By now, inmates across the State (and inmates transported to the mainland) are reading up on their favorite Hawai'i Rule of Penal Procedure, Rule 40.

Wednesday, October 10, 2007

ICA finds error in failing to provide written notice of conditions for DAG plea

State v. Shannon (ICA Sept. 28, 2007)

Background. Shannon pleaded guilty to Criminal Trespass in the Second Degree and made an oral motion for a deferred acceptance of guilty (DAG) plea, which was granted by the district court over the State's objection. The district court then imposed special conditions that he remain arrest-and-conviction free, perform 40 hours of community service, and pay a $25 fee. At a proof-of-compliance hearing, the State asserted that Shannon had violated the conditions of his DAG plea based on incidents occurring at least six months after the DAG plea was granted, and made a motion to set aside the DAG plea. The district court granted the State's motion, and filed judgment.

Failure to receive written copy of DAG plea conditions amounts to reversible error. The DAG statute, HRS §853-1, incorporates the enumerated conditions in HRS § 706-624, which allows the courts to attach certain conditions to probation sentences or the suspension of a sentence. HRS § 706-624(3) states that "[t]he defendant shall be given a written copy of any requirements imposed . . . , stated with sufficient specificity to enable the defendant to guide the defendant's self accordingly."

The ICA majority (Judges Foley and Fujise) found "no evidence in the record that Shannon received a written copy of his conditions [to the DAG plea]. Shannon contends that he did not receive a written copy, and the State does not contend otherwise." Instead, the State argued that an actual, oral notice of the conditions when the district court first accepted his motion for a DAG plea sufficed. The ICA rejected this contention. The ICA reasoned that the circumstances here had no significant difference than those in State v. Lee, 10 Haw. App. 192 (1993). In that case, the ICA interpreted the statutory requirement to have written notice provided as an "assurance that a defendant will know the exact terms and conditions of his [or her] probation before his [or her] probation can be revoked for failure to comply[.]" It can be assumed that the same reasoning applies to revocation of a DAG plea because HRS §853-1 incorporates the statute discussed in Lee.

Judge Nakamura's Dissent. Judge Nakamura's dissented because he believed that noncompliance with the written notice requirements does not warrant automatic reversal when Shannon received actual notice given several months before the revocation of the DAG plea took place. Judge Nakamura disagreed with the ICA here, and with the ICA in Lee. "[A] defendant who has actual notice or knowledge of the condition of a DAG plea should not be allowed to avoid punishment for violating those conditions simply because the defendant was not provided with written notice." Instead of the reasoning in Lee, Judge Nakamura prefers the federal approach--that the failure to provide written copies of probation conditions in violation of 18 USC § 3583(f) and 18 USC § 3603(1) still does not invalidate the subsequent revocation of probation when the defendant receives actual notice.

A sticky situation on remand. The ICA vacated the judgment of the district court and remanded "for further proceedings consistent with this opinion." This presents a problem. What happens once Shannon receives the written conditions of his DAG plea? Can the State then move to set aside the DAG plea based on the same misconduct, which took place before Shannon had received the written conditions? Or does this mean that the State is estopped from moving for setting aside the DAG plea based on misconduct done when Shannon had no written condition in violation of Lee and the statute? Judge Nakamura's concerns suggest the latter, which is why he dissented. Then again, why should the State be permitted to bring the same motion for the same misconduct? At the time of the violations six months after hearing the conditions, Shannon had no written conditions in hand. The question, for now, remains open.

Haw. Sup. Ct. finds little trouble in rejecting pot smoking in the name of religion, splits on privacy and plain error.

State v. Sunderland (HSC Sept. 21, 2007)

Background. A Big-Island police officer looking for a missing child went to Sunderland's home, a known hang-out spot of the child. The officer saw in plain view a pipe used to smoke marijuana, and inquired about it. Sunderland told the officer that the pipe was his and that he smokes marijuana for religious purposes. Sunderland even produced his "Cannabis Ministry" identification card to the officer. Sunderland was arrested on the spot. In the district court Sunderland was charged with Promoting a Dangerous Drug in the Third Degree (HRS § 712-1243). Sunderland filed a motion to dismiss on the grounds that smoking marijuana as a member of the Cannabis Ministry was a constitutionally-protected activity related to the First Amendment. The motion was denied and the district court found him guilty as charged, and fined $150.

On appeal, Sunderland argued that the prosecution for possessing drugs in his own home for religious purposes violated his right to the free exercise of religion under the First Amendment and his right to privacy under Art. I, section 6 of the Hawai'i Constitution. There was no mention of plain error.

A Court Divided. The Hawai'i Supreme Court affirmed Sunderland's conviction, but was sharply divided (2-1-1-1). Justice Nakayama wrote the plurality opinion in which Justice Duffy joined. Justice Acoba and Chief Justice Moon filed separate concurring opinions. Justice Levinson dissented.

The Plurality.
The plurality first concluded that Sunderland failed to preserve the argument that the prosecution of his case violated his constitutional right to privacy because he failed to raise that specific argument before the district court. The plurality noted that even though Sunderland cited State v. Ravin, 534 P.2d 494 (Alaska 1975), which held that personal marijuana use in the home is constitutionally protected, before the district court, it was not cited to advance the argument that his marijuana use was protected by his right to privacy. Rather, the citation was used to argue that the State failed to show a compelling state interest presumably under the Sherbert/Yoder analysis. What clinched it for the plurality was that at the hearing for the motion to dismiss the case, Sunderland "expressly disavowed any right to privacy argument[]" and argued only the right to the free exercise of religion. Here's part what Sunderland's attorney said:

"The next question is: Has the state shown a compelling interest? . . . This case is only about the use of marijuana in the home. And the Supreme Court of Alaska, finally, in not addressing the same issue, addressing a slightly different issue, basically said that the privacy rights, okay -- and it's not an issue here. They have done that case in Hawaii. And on a privacy level you're not allowed to have marijuana. They have raised that."

As to the other issue, the plurality held that, pursuant to Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), a generally applicable law (i.e. a law applying to conduct regardless of whether it was conduct religiously motivated or not) is not subject to First Am. Attack unless (1) it interferes with the Free Exercise Clause in conjunction with other constitutional protections or (2) it creates a mechanism that calls for individualized governmental assessment of the reasons for the relevant conduct.

The plurality concluded that the criminal statute is a generally applicable one and that neither exception had been met. With regard to the first exception it noted that the plurality justices held no opinion on what effect "a properly preserved privacy argument may have had on the analysis [because] a privacy argument may present the type of hybrid rights scenario that . . . would merit a strict scrutiny analysis[]" under Sherbert, 374 U.S. 398 (1963) (cited by the Hawai'i Supreme Court in Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai'i 217, 274 (1998)). The judgment, therefore, was affirmed.

Chief Justice Moon's Concurrence. CJ Moon agreed with the plurality's free-exercise analysis. CJ Moon, however, concluded that Sunderland adequately preserved his privacy argument, and that on the merits of the privacy issue, he would affirm the judgment. State v. Mallan, 86 Hawai'i 440 (1998), disposes of Sunderland's privacy arguments. In that case, a divided Hawai'i Supreme Court affirmed a conviction for promoting drugs in the 3d degree stemming from the recreational use of marijuana in a car parked at the Waikiki Shell. CJ Moon agreed with Sunderland that Mallan left open the question of recreational use of marijuana in the home but ultimately concluded that because possession and use of marijuana is not a fundamental right, Mallan extends to Sunderland's case.

Justice Acoba's Concurrence. Justice Acoba, like CJ Moon, also felt that the privacy argument should have been heard on appeal. According to Justice Acoba, Sunderland's counsel, without naming it, referred to the Mallan case at the hearing on the motion to dismiss. Mallan does not foreclose the question of whether smoking marijuana at home is constitutionally protected, as Sunderland's counsel believed at the time. This allusion does not preclude the appellate court's ability to recognize plain error, an analysis the plurality should have underwent. Justice Acoba, however, concurred with the plurality's result in affirming the conviction.

Justice Levinson's Dissent. Justice Levinson, like CJ Moon and Justice Acoba, believed the Court should have heard the privacy argument. According to Justice Levinson, despite Sunderland's failure to raise the issue on appeal in terms of plain error, the issue was nevertheless raised and argued as an error. This amounts to an adequate assertion on appeal that the district court committed plain error. Justice Levinson is the lone dissenter who believes that the conviction should be vacated based on the privacy issue based on his dissenting opinion in Mallan.

Summary. Much of the differences in opinion center around the issue of whether Sunderland adequately raised the privacy argument. The plurality concluded that Sunderland failed to raise the issue before the district court and the argument on appeal was not advanced below. It did not discuss plain error at all.

Justices Acoba and Levinson, and the Chief Justice felt otherwise. It seems that Justices Acoba and Levinson agree that appellate counsel was asserting plain error without calling it "plain error." This should be enough for appellate counsel. Because plain error is recognized at the option of the appellate court and can recognize it sua sponte, counsel's assertion of an argument not raised before the lower court is essentially an assertion of plain error. The Chief Justice offered no explanation why he would have heard the privacy argument. Of course, because the plurality did not mention plain error at all, it is quite possible that the plurality, at its option, declined the invitation to hear the issue as plain error.

Even the three-justices who would have heard the privacy argument are further splintered when they arrive to the merits of the privacy argument. Justice Acoba and CJ Moon would have affirmed the conviction on the privacy rights argument (but for different reasons), while Justice Levinson believed that Sunderland's right to privacy had been violated.

So what's salvageable? For starters, it appears that, at the very least, two justices (Acoba and Levinson) agree that plain error need not be expressly asserted by appellate counsel in order for it to be heard as plain error, and that any other result would be pure semantics. As for the CJ, who gives no reason why he would have heard the issue, or the plurality, which do not mention plain error at all, we cannot be so certain what they would do in the future. Moreover, because CJ Moon expressly agreed with the plurality on the free exercise analysis and result, its First Amendment analysis is supported with a majority. Finally, the divided court leaves the question of whether Hawai'i's constitutional right to privacy protects persons from using drugs in their homes to be answered for yet another day.

Thursday, October 4, 2007

Qualifying drug experts a weighty issue.

State v. Manewa (HSC Sept. 12, 2007).

Background. Manewa was arrested after handing to an undercover officer two packets of a crystalline substance in exchange for $600. After his arrest, police searched a fanny pack that belonged to him and found "paraphernalia" and more bags of a crystalline substance. Manewa was charged with violating both HRS § 712-1241 and HRS § 712-1242. The State at trial offered police criminalist, Hassan Mohammed, as an expert in drug analysis and identification. His testimony helped establish that the substance taken from the fanny pack was crystal methamphetamines weighing at least more than one-eighth of an ounce. Manewa was convicted of the drug offenses. On appeal, Manewa argued that Mohammed's testimony was inadmissible because Mohammed was not qualified as an expert to testify on the identity and weight of the substances.

Schofill distinguished. On appeal, the HSC rejected the State's contention that State v. Schofill controls. In that case, the HSC held that in a grand jury proceeding, an expert witness was qualified to testify about a substance at an unconsummated drug deal that appeared to be cocaine based on training from "[s]everal college courses [dealing] with drugs and cocaine." The qualification in Schofill, according to the HSC, was based on the fact that it was a grand jury proceeding with a lower standard of proof where the officer's expertise in drug identification "need not be as detailed as at trial." In Manewa's case, however, Mohammed's testimony was used at trial, where the standard of proof is significantly higher thereby requiring the State's witness to be "qualified as an expert in the identification and weighing of [drugs].

Qualified for drug identification. The HSC first held that Mohammed was qualified as an expert in drug analysis and identification. Mohammed testified that he subjected the materials to the Gas Chromatograph Mass Spectrometer (GCMS) "to confirm the definitive presence of crystal methamphetamine[.]" Mohammed also testified that the GCMS is checked routinely each and every morning to ensure that its "parameters are within manufacturer specifications."

The HSC found that because there was (1) an established manufacturer's procedure that could be conducted by the user to ensure the machine was in working order according to the manufacturer's specs, and (2) there was evidence that the GCMS was operating within the specs at the time the substance was tested, Mohammed had the "personal knowledge" necessary to establish that the GCMS was in proper working condition and there was no abuse of discretion in allowing him to testify about the identity of the substances.

Not qualified to the weight. Mohammed also testified that after using an electronic balance, he concluded that the drugs were of the weight necessary to convict Manewa. The HSC, however, held that Mohammed was not qualified as an expert to testify on the weight of the substance because the evidence failed to show: (1) that the witness had the training and expertise needed to calibrate the electronic balance; (2) that the balance was properly calibrated by the manufacturer's service representatives; (3) the existence of a procedure for "verifying and validating" that the balance was properly working and, if there was one, that the witness followed it; and (4) that the balance was in proper working order at the time the evidence was weighed.

First, even though Mohammed used the balance routinely, he was ignorant of how the balance functioned or how to service it; personal knowledge that the balance is calibrated semi-annually was insufficient because this was not the same as personal knowledge that the balance had been correctly calibrated. Second, the State never called the manufacturer's service representative to testify to the calibration of the balance nor did the State offer any business records of the manufacturer showing a correct calibration. Finally, Mohammed's assertion that he verifies and validates the balance with his own personal balance on a monthly basis still does not show that the electronic balance was in proper working order. Even the "routine check" done every morning was insufficient. The HSC found this inadequate because "although the record indicate[d] that Mohammed was trained to follow a certain procedure to ensure that the GCMSs were in working order, it fail[ed] to show that there was a manufacturer's accepted procedure for the user of the balance to implement ensure the balance was in working order."

In finding insufficient foundation, Mohammed's testimony was inadmissible hearsay. Without Mohammed's testimony, the State failed to establish the requisite weight to convict Manewa for the drug offenses.

Concurrence and dissent. Justice Levinson agreed with the majority in all respects except for its rationale underlying its distinction of Schofill. Chief Justice Moon joined him. Justice Levinson opined that Schofill was distinguishable not because it was a grand jury proceeding, but because the drug deal in that case was not consummated. Justice Levinson would limit Schofill to those cases where the defendant is charged with "promoting" a controlled substance by way of "distribution" and the facts show that the sale had been "cut short[]" thereby limiting the State's proof to the defendant's officer to sell. That is why Justice Levinson believes Manewa's case does not implicate Schofill--Manewa's sale was consummated.

Summary. It appears that in order to qualify an expert as to the weight of a substance with an electronic balance at trial or at a hearing with a standard of proof higher than probable cause, the proponent of the evidence must lay foundation showing (1) an established manufacturer's procedure that could be conducted by the user to ensure the machine was in working order according to the manufacturer's specs, and (2) there was evidence that the GCMS was operating within the specs at the time the substance was tested, Mohammed had the "personal knowledge" necessary to establish that the GCMS was in proper working condition and there was no abuse of discretion in allowing him to testify about the identity of the substances.

Monday, October 1, 2007

Merging because the legislature says so.

State v. Fagaragan (ICA Sept. 10, 2007)

Background. After a routine traffic stop, the police found from Fagaragan's pockets a bag with methamphetamines in individual plastic packets. Fagaragan was charged with Promoting a Dangerous Drug in the 1st Degree; Attempted Promotion of a Dangerous Drug in the First; and Prohibited Acts Related to Drug Paraphernalia. A jury found him guilty on all three counts, and the circuit court sentenced him on all three counts without merger. On appeal, Fagaragan argued that his promoting-in-the-first count should have merged with the prohibited-acts count thereby amounting to plain error.

Merger based on plain language and legislative intent of the statute, NOT on general principles. The ICA avoided constitutional arguments as well as arguments based on the general rules of merger provided in HRS § 701-109, by determining at the outset that the statute itself called for merged counts. Instead, the ICA held that convictions merge when the plain language and the legislative history demonstrate that the legislature did not intend on the imposition of multiple punishments. This is a threshold question. Therefore, before getting lost in the mire of general merger issues, check the statute itself for a legislative intent to have its offenses merge. This approach is not limited to just drug offenses, but should be considered for nearly all criminal statutes.


Plain language/structure of statute demonstrates merger. HRS § 712-1241 provides different kinds of offenses within the same statute. Promoting a dangerous drug in the first degree can be violated either by (a) possessing a certain quantity, (b) distributing a drug of a quantity lesser than mere possession, or (c) distributing any quantity to a minor. Based on this structure, the ICA held that when the same drugs found at the same point in time are used to support a conviction for the possession under (a) as well as distribution under (b), they merge together into a single punishment.

Legislative history suggests merger. HRS §712-1241 was enacted in 1970. The legislative history expressly stated that its purpose was to "hit hardest at the illegal trafficker" and lightest with the mere user. As a result, there are three tiers: the trafficker or dealer, the intermediary, and the user. From this, the ICA concluded that the legislature intended the possession of one ounce or more--the required weight to convict for distribution under the statute--to "serve as a proxy for the intent to distribute[.]" Put differently, the ICA concluded that when a defendant has on ounce or more of drugs, the "intent to distribute" is presumed, and need not be proven by the prosecution. The logic of the three tiers suggests that a defendant cannot be punished for being both a trafficker and a user for the same quantity of drugs in the same period of time.

Remedy for failing to merge. Once the ICA found error in a failure to merge the two convictions, it had to dismiss one or the other. But which one? Generally, the lesser-included offense should be dismissed unless the "lesser" is of a "higher grade and class." The rationale for the exception is that it'd be manifestly unfair to the prosecution and the public to reverse a more egregious conviction simply because it was an included offense. For example, when use of a firearm during the commission of a felony should have merged with the underlying felony of second-degree murder, it would be manifestly unfair to dismiss the murder conviction. State v. Jumila, 87 Hawai'i 1, 7, 950 P.2d 1201, 1204 (1998).

This case is not as easy and arguably adds a new contour to the phrase "manifestly unfair." Both attempted the distribution and possession offenses carry the same maximum, and so the rationale from Jumila doesn't fit as nicely. It doesn't matter which one should be dismissed. Neither appear to be manifestly unfair. Nevertheless, the State conceded that the distribution conviction was based on erroneous jury instructions. Therefore, the ICA reasoned that it would be "manifestly unfair" to dismiss a conviction with correct instructions, while keeping an erroneously-instructed one.