Sunday, February 24, 2008

Strictly speaking, there's more than one way to bribe a witness.

State v. Gomes (HSC February 20, 2008)

Background. A woman, Zook, saw a fight take place in front of her home one night. Zook told her friend, Schulte, about the fight and how she was going to be called as a witness at a trial. Schulte learned that Nolta, her boyfriend at the time, knew the people in the fight, which included Gomes. One night at a lounge, Gomes told Schulte to tell Zook not to "show up and testify." Nolta later testified that Gomes asked him whether Schulte would urge Zook not to testify and that if Zook would accept money for it. The message eventually got to Zook. In the meantime, Gomes and his co-defendant were charged with assault in the 2d degree. After Gomes' "entreaty," Zook was served with a subpoena to testify at trial. There was no evidence of a prior subpoena. Gomes' motions for acquittal on the grounds that there was insufficient evidence to find him guilty of HRS § 710-1070(1)(b) was denied. Gomes was convicted of bribery of a witness (HRS § 710-1070(1)(b)) in addition to assault.

The three ways to bribe a Witness, the State Picked one. HRS § 710-1070(1) recognizes three different ways to bribe a witness: confer a benefit to a putative witness with the intent to (a) influence the person's testimony; (b) "induce that person to avoid legal process summoning him to testify;" or (c) induce the person to absent him or herself from an official proceeding. Gomes was accused of violating (1)(b)--conferring a benefit to Zook with the intention to induce her to avoid legal process summoning him. Legal process means subpoena.

Reading the many definitions that apply to this statute, see HRS §§ 710-1000(2), (12), & (17), the HSC concluded that the State was required to prove beyond a reasonable doubt that Gomes (1) conferred, offered, or agreed to confer a benefit to Zook or someone Zook cared about; (2) that Gomes believed Zook would be called to testify under oath in a legal proceeding; and (3) Gomes acted with the intent to induce Zook to avoid the "delivery of a writ or summons calling her to appear or respond in court." Rather, there was intent to show that he had the intent to induce Zook's absence from trial, which is HRS § 710-1070(1)(c).

Even Without the Smoking gun, infer away. The HSC rejected Gomes' assertion that the State was required to introduce explicit statements by Gomes that he told Zook to avoid the service of the subpoena. After all, it is well-established that direct evidence of a person's intent is rarely available and seldom found. State v. Pudiquet, 82 Hawai‘i 419, 425, 922 P.2d 1032, 1038 (App. 1996). Thus, circumstantial evidence and reasonable inferences arising from a defendant's conduct are sufficient. State v. Bui, 104 Hawai‘i 462, 467, 92 P.3d 471, 476 (2004). Thus, explicit statements are not required. The intent of Gomes' may be readily inferred from his conduct.

When the facts don’t fit, Acquit. The HSC held that evidence of Gomes' urging of Zook "not show up" or "not show up and testify" cannot allow a factfinder to infer that Gomes intended to have her avoid the subpoena. Such inferences are "untenable in light of the structure of HRS § 710-1070." The HSC concluded that the language of subsection (1)(b) is plain and unambiguous and, thus, it is obligated to give effect to its "plain and obvious meaning." Mikelson v. United Servs. Auto. Ass'n, 108 H. 358, 360, 120 P.3d 257, 259 (2005). Here, there was no evidence of a subpoena ordered for Zook admitted into evidence, discussed in testimonies of the witnesses, or the legal proceeding for which Zook was ordered to appear. The bare assertions that Zook was told "not to come back" or "not to show up and testify" do not determine whether Zook was urged to avoid being served the subpoena. This, concluded the HSC, was insufficient evidence to convict under HRS § 710-1070(1)(b).

A Measured Interpretation. The HSC observed that HRS § 710-1070(1)(b) must not be read so broadly that it would encompass other types of bribery, like inducing a person to absent himself or herself from an official proceeding under subsection (1)(c). Reading the statute this way, concluded the HSC, would render subsection (1)(c) a nullity. City and County of HNL v. Hsiung, 109 Hawai‘i 159, 173, 124 P.3d 434, 448 (2005). Does this mean that prosecutors should be hesitant to allege violations of subsection (1)(b) without facts allowing a jury to infer that the defendant had the intent to avoid the service of the subpoena rather than avoid testifying? Because there are these two different ways to bribe a witness, the legislature must have intended that subsection (1)(b) violations pertain to the avoiding of a service of process and not the effect of avoiding that service, which would be testifying at trial and is within the province of subsection (1)(c). Given this construction, shouldn’t it behoove the prosecutor to allege a violation of both subsections in the absence of clear facts? Perhaps amend the complaint when the facts are clearer. This, fortunately for Gomes, did not happen here.

Justice Nakayama's Dissent. Justice Nakayama did not dispute the plain language interpretation, but she reminded the majority that when a strict reading of a statute results in an “absurd or unjust result and such literal application is clearly inconsistent with the purposes and policies of the statute,” the court must depart from the plain and unambiguous language. State v. Park, 55 Haw. 610, 614, 525 P.2d 586, 589-90 (1974). Justice Nakayama thought this canon of construction applied here. Justice Nakayama turned to the commentary of HRS § 710-1070, which states, among other things, that “substantial interference with any part of the process [of calling a witness] is to be condemned.” Moreover, the standard of review on appeal is viewed in light most favorable to the prosecution. State v. Keawe, 107 Hawai‘i 4, 108 P.3d 304, 307 (2005). Justice Nakayama believed that the evidence would allow the jury to find a violation of subsection (1)(b), and thus, would have affirmed the conviction.

Plain Language/Strict Interpretation Approach reigns Supreme. Both the majority and Justice Nakayama uphold the principle that the first step in interpreting a statute is a strict interpretation of the plain language. They part ways from there. Justice Nakayama believed that the language, though plain, lead to a result inconsistent with the legislative purpose. The majority, however, concluded that the statute was plain and the effect was not absurd. In fact, its interpretation prevented one part of the statute from being a nullity. In any event, the importance of a strict interpretation and the adherence to the plain meaning absent an exception like an ambiguity or an absurd result remain unquestioned. This puts the legislative history and other extrinsic aids in interpreting law in the backseat. See also State v. Klie (HSC Dec. 27, 2007).

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