Wednesday, June 4, 2008

HSC sees just one Episode

State v. Akau (HSC May 30, 2008)

Background. Akau sold crystal meth to undercover police officers on three separate occasions in the vicinity of Keeaumoku Street and Kaheka Street. The drug buys gave the police probable cause to apply for and receive a search warrant of Akau's person and residence. They executed the warrant and found more drugs. The State charged Akau with promotion of a dangerous drug in the 2d degree (HRS § 712-1243) and unlawful use of drug paraphernalia (HRS § 329-43.5) based on the drugs found from the search warrant. Akau pleaded no contest and was sentenced as a first-time offender.

Ten months later Akau was indicted on three counts of promoting a dangerous drug in the 2d degree based on the three drug buys. After the circuit court denied Akau's motion to dismiss the charges based on compulsory joinder and merger, he was sentenced to 10 years imprisonment. This was his second offense so he received a mandatory minimum of six months. HRS § 712-1242(3). The ICA affirmed the denial of the motion.

New Episode or a re-run? Prosecutions that "should have been tried on the first prosecution under [HRS §] 701-109" cannot be brought. HRS § 701-111(1)(b). A "defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode if the offenses are known to the appropriate prosecuting officer[.]" HRS § 701-109(2). Akau argued that the prosecution for the three drug buys arose from the "same episode." According to the HSC, the test for determining whether the crimes arose from the "same episode" depends on "whether the alleged conduct was so closely related in time, place, and circumstances that a complete account of one charge cannot be related without referring to details of the other charges." State v. Carroll, 63 Haw. 345, 351, 627 P.2d 776, 780 (1981). In other words, the inquiry depends on a close relation in time, place, and circumstance. Underlying these statutes is a policy of fairness to the defendant and society's interest in efficient law enforcement.

Measuring Time and Place Without Drawing Lines. The HSC first held that the time was closely related. The lapse of several days between the crimes is not fatal in determining the same episode. State v. Servantes, 72 Haw. 35, 37, 804 P.2d 1347, 1348 (1991). But how many days can pass? The HSC did not draw a definitive line. Instead, it held that even if the clock began with the first drug buy thus separating the offenses by forty-nine days, the time is still "not so disparate as to render" them separate episodes. As for the second factor--place--the HSC also declined to draw definitive lines. It was concerned, however, about defining "place" too broadly. If the "place" were something as broad as, say, the entire City and County of Honolulu, the application and administration of HRS §701-109(2) might become "unduly hamper[ed.]" State v. Keliiheleua, 105 Hawai'i 174, 181, 95 P.3d 605, 612 (2004). Then again, the drug buys happened within three blocks of the execution of the search warrant, which is close enough in geographic proximity for the HSC. So the dividing line is still unclear. It remains something between the entire county and three blocks. This lack of clarity is always good for making arguments that would cut either way.

And Figuring out Circumstances. As for circumstances factor, the HSC held that the circumstances between the two offense are closely related under the Carroll test when the facts and circumstances of the first discovered offense provide sufficient probable cause to suspect that the defendant had committed or would commit the second offense. In this case, the drug buys provided sufficient probable cause to suspect that Akau committed or would commit other drug offenses. The search warrant was based upon the drug buys and the search warrant led police to the drugs for the first offense. These circumstances were closely related, and, according to the HSC, the two prosecutions should have been joined and merged.

Justice Acoba's Concurrence. Justice Acoba concurred because he believed that probable cause is not essential in finding the circumstances between the first and subsequent crimes closely related. According to Justice Acoba, the probable cause is not required by HRS § 701-109(2). Justice Acoba also pointed out that the Carroll test was imported from State v. Boyd, 533 P.2d 795 (Ore. 1975), where that court did not examine or find probable cause in applying that test. Oregon, according to Justice Acoba, still does not call for probable cause leading to the second offense. Justice Acoba believed it would have been impossible to try the offenses resulting from the search warrant without reference to the drug buys. This was enough of close relationship for Justice Acoba to agree with the majority that the offenses merged under HRS §701-109(2) and, therefore, should have been joined into a single prosecution. HRS § 701-111.

Justice Nakayama's Dissent. Justice Nakayama dissented because she believed that the two crimes did not arise from the same episode under the Carroll test. First, she did not agree with the HSC's "time" analysis. See Keliiheleua, 105 Hawai'i at 181, 95 P.3d at 612 (time factor not satisfied even when both offenses occurred on the same day). Justice Nakayama also sees a distinction between multiple prosecutions sharing common characteristics and multiple prosecutions that are "so interrelated that proof of a single prosecution would constitute a substantial portion of the proof of other prosecutions." When the latter happens the crimes share a "substantial factor nexus" and are of the same criminal episode. It is this nexus that determines whether the time, place, and circumstances are close enough to be considered the same episode. Justice Nakayama believed that the time, place, and circumstances of the two prosecutions did not share a substantial factor nexus and, therefore, there was no error.

Twin Policies at Work: Fairness to the Defendant and Efficient law Enforcement. The HSC addressed some of Justice Nakayama's contentions and noted that the twin policies of fairness to the defendant and efficient law enforcement are preserved with its holding. The defendant should not have to face the expense and uncertainty of two separate prosecutions that are essentially the same episode. It also noted that because the prosecutor knew about the drug buys, Akau was being harassed by the second prosecution. As for the interests of efficient law enforcement, the HSC rejected the State's contention that the one of the officers who participated in the drug buys did not "surface" when Akau was first charged because that officer still hadn't "surfaced" when the second prosecution came to the fore. Perhaps the subsequent prosecution is more than just harassment. Had it not been for the subsequent prosecution, Akau would not have been subjected to the mandatory minimum.

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