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)

Background.
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)

Background.
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)

Background.
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.