Tuesday, January 29, 2008
Background. Espiritu and the Complaintant dated for a while, broke up, and still kept in touch. The Complaintant received four alarming text messages from Espiritu’s cel phone. At some point, the Complaintant met a guy at the Fish and Game Bar. Shortly after going back to her place and having $ex, Espiritu showed up at the house. A struggle ensued, Espiritu reached for a gun and shot the Complaintant. She lived. After the incident, investigating police officers copied the text messages to notes which appeared in their reports. Espiritu was charged with attempted murder in the 2d; carrying or using a firearm; and place to keep a firearm. The jury found him guilty as charged. Espiritu was sentenced to life imprisonment.
OMG! Txt mssges r so hrsy! At trial, the State asked the Complaintant if she could recall the content of the text messages. She had a vague recollection of some, but not all, and examined the police reports in order to refresh her memory. Both parties and the HSC agreed that the text messages and testimony about those messages were indeed hearsay. HRE Rule 801. The HSC also held that because (1) the texts were made by a party-opponent that (2) was offered against the party, the hearsay exception was met. HRE Rule 803(a)(1).
It seems fairly straight forward. But what if Espiritu objected not on hearsay, but on the grounds that there was insufficient foundation showing that Espiritu sent the text messages? Perhaps it can be inferred that a text message from a particular person’s phone was sent from that person. Perhaps that such issues would go to the weight rather than the admissibility anways. Still yet, it’s a thought.
The Best Evidence Rule Rules! After Espiritu objected to the testimony about the text messages, the circuit court stated that the Complaintant’s testimony about the evidence was indeed not the best evidence (but allowed it because it went to the weight). The HSC agreed with the circuit court.
HRE Rule 1002 requires that in order to prove the “content of a writing, recording, or photograph,” the original is required. A text message falls squarely within the definition of a “writing.” HRE Rule 1001. Thus, absent an exception, the Complaintant’s testimony about the text messages (instead of the orignal message itself) is insufficient. Without exceptions, the Best Evidence Rule would change litigation significantly. One of the gaping exceptions provides that when the original is not required when all originals have been lost or destroyed unless the propoent lost/destroyed them in bad faith. HRE Rule 1004. The HSC held that the HRE Rule 1004 exception applied because there was no bad faith. The Complaintant didn’t have her phone anymore; she switched to phone carriers; and it’s unclear whether text messages can be published at all.
Just how Refreshed do you have to be? It is a basic rule that police reports are hearsay and do not qualify under the past-recollection-recorded exception. See HRE Rule 802.1(4). Nor do they, for criminal cases, qualify under the public-records-and-reports exception. HRE Rule 803(b)(8). Equally basic is the rule that anything, including police reports, may be used to help a witness refresh his or her memory. HRE Rule 612. Espiritu argued that the Complaintant did not really use the police reports to refresh her memory. Rather, she read the reports into evidence.
After all, the witness’s memory should be the testimonial evidence, not the item that was used to help her refresh her memory. Espiritu challenged this and argued that the Complaintant read the police reports into evidence rather than testify based on the powers of her own memory. The HSC disagreed. The instances where the police report supplanted the Complaintant’s memory were “substantial enough to effectively contravene the conclusion . . . that the Complaintant was testifying about the messages from her refreshed recollection rather than her memory of reading the report.”
Demonstartive Evidence a Push. At trial the State brought in a doctor to demonstrate that during the struggle Espiritu could have been able to reach for the handgun. The HSC examined the record and concluded that it was unclear whether the demonstration had any effect whatsoever on Espiritu’s case.
Misstating the Law at Closing is Prosecutorial Misconduct. At closing, Espiritu’s counsel argued that there was evidence showing he shot the Complaintant under extreme mental or emotional distress (EMED). The State rebutted and told the jury that unlike other cases of EMED, Espiritu did not have a special relationship with the Complaintant and he shot her after a length of time (e.g. a father shoots a drunk driver immediately after killing or harming his child). The HSC held that this statement was a misstatement of the law that improperly shifted the burden of proving a special relationship to Espiritu. A special relationship between the defendant and the victim and immediacy between the criminal act and the extreme distress are not necessary to raise the EMED defense.
And it’s NOT Harmless. The HSC was not convinced that this error was harmless beyond a reasonable doubt. Even if there was insufficient evidence of EMED, the standard is whether there was a reasonable possibility that the error might have contributed to the conviction. State v. Sawyer, 88 Hawai’i 325, 329 n. 6, 966 P.2d 637, 641 n. 6 (1998). After overruling Espiritu’s objection, the jury “would reasonably perceive that the misstatement . . . was not incorrect.” The court did not give the jury a curative instruction right then and there. The HSC stated that the lack of curative instruction was directly related to the EMED defense and thus there was a reasonable possibility that might have contributed to the conviction. The HSC vacated and remanded for new trial.
So a prosecutor has got to be on his or her toes. So does the trial court for that matter. If a misstatement comes up, and that misstatement goes directly to a defense or criminal liability, the circuit court can’t dismiss it as mere argument, as it did here. A curative instruction given right then and there is in order.
Justice Nakayama’s Dissent. Justice Nakayama believed that the prosecutor’s statements were warranted because Espiritu’s closing argument invited the comments. Espiritu argued at closing that he walked in on his not-so-ex-girlfriend having $ex with some guy she met at a bar, which is akin to the classic EMED defense: a husband walking in on his wife having $ex. The State responded to this assertion by bringing up hypotheticals in the rebuttal, which was well-within his ability to do so. Such hypos are not erroneous.
Majority’s Last Word? The penultimate portion of the majority opinion addresses the crux of Justice Nakayama’s dissent. It counters that even though a prosecutor may respond to the defendant’s closing argument which invite or provoke a response, State v. Clark, 83 Hawai’i 289, 305, 926 P.2d 194, 210 (1996), such a response is not license to missapply or misstate the law. The majority also took the position that the defense did not invite these comments in the first place. It appeared that the EMED hypos were brought up by the prosecutor as early as voire dire and throughout trial.
Thursday, January 24, 2008
Background. Kamaka was an attorney at Goodsill, a law firm in HNL, focusing on employment law. The firm suspected Kamaka's honesty when it discovered that she had not completed the work she claimed to have finished. Soon afterwards, another attorney at the firm believed that she had regularly made entries on billing time sheets for incomplete work, and recommended termination. Kamaka's annual report was not favorable so the firm put her on probation pending further investigation. The firm also informed Kamaka that if investigation showed that "continued deficiencies" between the billing and actual work done, she would be fired. Kamaka was eventually terminated, and the firm referred her to the Office of Disciplinary Counsel. The ODC dismissed the claim based on insufficient evidence.
Kamaka sued Goodsill alleging several counts. Kamaka lost every claim one except for a jury awarding her for breach of contract. The trial court, however, granted Goodsill's renewed motion for judgment as a matter of law. Goodsill then requested $364,154.25 in attorney's fees and $65,081.48 in costs and was awarded in full.
RSCH Rule 2.8 bars all Lawsuits--Including this one. Kamaka argued that she was entitled to pursue a claim of malicious prosecution based on Goodsill's referral to the ODC. Rules Supreme Court of Hawai'i (RSCH) Rule 2.8, however, states that those who "complain" to the ODC or give testimony "with respect thereto . . . shall be absolutely privileged and no lawsuit thereon may be instituted." The HSC rejected Kamaka's argument that this privilege did not extend to claims of malicious prosecution. The plain language of the rule, according to the HSC, bars lawsuits stemming from ODC complaints. This includes malicious prosecution claims.
Rule 2.8 bars Evidence too. RSCH Rule 2.8 bars complaints and testimony. A "complaint" for Rule 2.8 purposes is "any communication to the disciplinary counsel alleging attorney misconduct" and "testimony" as statements made under oath. That said, the HSC examined whether the circuit court properly excluded the firm's letters to the the ODC made after the initial complaint. Although the letters constituted neither a "complaint" nor "testimony," the circuit court exercised adequate HRE Rule 403 balancing to exclude w/o abusing discretion.
A "Unique Position." The malicious prosecution argument, noted the HSC, put the court in "the unique position of interpreting its own rule." Can the HSC do that? In addition to being the highest arbiter of state law, the HSC has a limited rulemaking power pursuant to Haw. Const. Art. VI, Section 7. The HSC held that the language was plain and unambiguous. Thus, there was no need to examine the intent of, well, the HSC when it promulgated the rule. In theory, this suggests that if it were ambiguous, the HSC could think aloud and examine its own intent at the time the rule was promulgated. That is unique.
Interpretation is one thing, but constitutionality may be quite another. If the HSC can interpret its own rules, then can it determine whether its own rules are constitutional? Similarly, can it examine whether the rule was made w/in the HSC's constitutional authority? This gets to the very heart of the problem. The HSC's power to interpret with authority runs into its rulemaking power. Should the justices who promulgated the rule recuse themselves? Perhaps not. Everyone agrees that the HSC has the power to overrule its own cases. The HSC's conclusion that a rule it promulgated turned out to be unconstitutional is arguably the same thing as overruling past precedent.
Genuine Issues of MATERIAL fact. Kamaka "argued" on appeal that there were genuine issues of material fact that should've prevented the circuit court from granting summary judgment for the tortuous interference of contractual relations claim. The HSC carefully notes that raising "genuine issues of fact" without explaining how these facts are "material to the elements of the claim" is not argument and was therefore waived pursuant to HRAP Rule 28(b)(7).
Editor's Note: Other Issues Examined. There were plenty of issues in this case. The HSC also examined quite extensively the denial of Kamaka's motions to amend the complaint around the time of trial, the many (but not inconsistent) duties of employer-attorneys, the scope of a renewed judgment as a matter of law, the exacting language needed to alter the common law rule that all employees are at-will, and requests for attorney's fees pursuant to HRS § 607-14. Kamaka prevailed on none of them. This makes a walloping 72-page opinion.
Saturday, January 12, 2008
Overruled by HSC.
Background. E & J Lounge applied for a liquor license w/ the HNL Liquor Commission. After holding a public hearing where neighbors of the lounge opposed the granting of a license, the LC denied the application. E & J Lounge appealed to the circuit ct. on the grounds that the public hearing was a “contested case” and that the other requirements of the Hawaii Administrative Procedures Act (HRS Ch. 91). The circuit court agreed and reversed the denial based on violations in HRS Ch. 91.
Specific Agency Statutes v. the HAPA. HRS Ch. 281 regulates the proceedings of the liquor commission and requires the commission to hold a public hearing to determine the merits of the application for a license. The public hearing comes with procedural requirements like notice to neighbors w/in a proscribed time. The more rigorous procedural requirements under HRS Ch. 91, on the other hand, apply only to the “contested case.” A “contested case” is an agency hearing that (1) is required by law and (2) determines the rights, duties, or privileges of specific parties. HRS § 91-1. A “contested case” is subject to judicial review. HRS § 91-14.
LC not Required to hold two Hearings. The ICA held that the Liquor Commission is not required to hold public hearings under HRS Ch. 281 and a contested case proceeding. First, no statute or law requires the LC to hold both. The ICA distinguished Town v. Land Use Comm’n, 55 Haw. 538, 524 P.2d 84 (1974), where the Hawai’i Supreme Court “determined that a contested-case hearing was required . . . in addition to the statutorily-mandated public hearing.” Unlike Town, according to the ICA, E & J Lounge has no property interest being determined. The ability to sell liquor is a privilege, not a right. Additionally, the Town court looked to legislative intent to see if the agency was exempted from the contested case proceedings. There was none in Town, but the ICA found such intent underlying HRS Ch. 281. Second, a contested case proceeding was not constitutionally required where there is no “property right” being determined. Again, a license is a privilege, and does not constitute a property right.
Contested cases Aren’t the only way to Judicial Review. HRS § 91-14(a) provides judicial review for determinations of contested cases and that “nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or retrial de novo, including the right of trial by jury, provided by law.” Id. The ICA held that the literal language prohibits judicial review from the denial of a liquor license. Nevertheless, the Hawai’i Supreme Court has found public hearings subject to HRS § 91-14 review. See Singleton v. Liquor Comm’n, County of Hawai’i, 111 Hawai’i 234, 140 P.3d 1014 (2006) (granting of liquor license in compliance w/ HRS Ch. 281 subject to review); Mahuiki v. Planning Comm’n, 65 Haw. 506, 654 P.2d 874 (1982); East Diamond Head Ass’n v. Zoning Bd. of Appeals, 52 Haw. 518, 479 P.2d 799 (1971).
Judge Nakamura’s Dissent. According to Judge Nakamura, although there are “cogent” reasons why the LC should not be subject to the procedural requirements of the HAPA, the HSC in Singleton implicitly held that the public hearing purs. to HRS Ch. 281 is a “contested case.” Thus, the hearing held by the HNL LC was the “contested case” hearing and there was no choice but to comply with the proceedings of the HAPA. Judge Nakamura believed there’s simply no way around it: the City and County conceded that there was a right to appeal the decision and the intervenors—E & J Lounge’s neighbors—urged the ICA to simply ignore Singleton. Judge Nakamura also quoted the legislative history of the HAPA back in 1961: “[t]here has been no real showing why the liquor license application should be excluded [from the definition of a contested case].”
Two Approaches. The majority took the approach that the public hearing under HRS Ch. 281 is not a contested case, and that the LC is not required to hold one in addition to the public hearing. This means that HRS Ch. 91 is inapplicable and that only HRS Ch. 281 controls. This leads to the tough spot. HSC precedent shows that there are agency hearings that are not contested cases, but are subject to HRS § 91-14 review. In the future, it could mean that an agency hearing could fall into one of three types: the true contested case, the public hearing subject to HRS § 91-14 review, and the agency hearing where no review is warranted.
Judge Nakamura doesn’t think there are three kinds. The HSC cases don’t create a third type, but hold that when there is judicial review of the agency hearing, then the hearing itself falls w/in the definition of the “contested case.” This means that in addition to judicial review, there are the burdensome procedural requirements of HRS Ch. 91. Of course this approach has its problems too. The contested case must determine a right or privilege. What does it mean to “determine”? Surely if the license is suspended, the privilege has been affected. But if the license is never granted, then no privilege is conferred. Is that a “determination”? The other issue is the friction between specific statutes and Ch. 91. Perhaps the specific statutes in HRS Ch. 281 knock out Ch. 91 provisions speaking to the same subject (e.g. notice of the hearing), much to the chagrin of gov’t agencies.
Thursday, January 3, 2008
Whitaker v. State (ICA December 31, 2007)
Background. Whitaker was indicted for Insurance Fraud (HRS § 431:10C-307.7(a)(1) and (b)(2)) and Attempted Theft in the 2d (HRS § 708-831(1)(b) and HRS § 705-500). According to Whitaker, he called AIG, his insurance carrier, to report that vandals and damaged his car and make a claim. AIG instructed him to call the police first for a report. Whitaker drove the car to the station in Wahiawa, where an officer inspected the damages and reported scratches on the sides, hood, and trunk. He then drove to HNL to AIG for an inspection. Whitaker claimed extensive damage. AIG found it suspicious that there were fragile paint markings on the car after it had been driven from Wahiawa to HNL. AIG suspected that Whitaker was claiming that pre-existing damage was part of the vandalism. Whitaker testified at trial that he had told AIG about the pre-existing damages. Whitaker was found guilty as charged.
No Error for Denying Unanimity Instruction. When several acts are alleged and any one of them can establish the charged offense, the State must pick one of the particular acts for which it will rely upon for conviction, or the court must instruct the jurors that all of them must agree that the same underlying criminal act has been proved beyond reasonable doubt. State v. Shinyama, 101 Hawai’i 389, 399, 69 P.3d 517, 527 (2003). Unanimity is not required when the charged offense is based on a single incident, when the offense is a continuing offense, or when the offense can be committed in more than one way. See State v. Valentine, 93 Hawai’i 199, 208-09, 998 P.2d 479, 488-89 (2000); State v. Rabago, 103 Hawai’i 236, 250, 81 P.3d 1151, 1165 (2003).
Whitaker was charged with Insurance Fraud and Attempted Theft of State Property by Deception. The ICA held that the first offense is based on a single incident—submitting a fraudulent claim to AIG—requiring a single plan or impulse. The 2d offense has already been held by the HSC to be a continuous offense. State. Arceo, 84 Hawai’i 1, 18-19, 928 P.2d 843, 860-61 (1996).
“Assuming” v. “Inferring” is Harmless Error. During deliberation, the jury asked the court whether it could assume that Whitaker knew his claim exceeded $300, the amount necessary to find liability. The circuit court, over objection, failed to clarify that the jury cannot assume such facts. The ICA appears to have agreed that it is more correct for the jury to infer facts circumstantially rather than assume them. Nevertheless, the instructions, when read as a whole, the failure to make this distinction “at most, harmless.”
The Ins. Fraud Instruction. Insurance Fraud arises when a person acts w/ the intent to obtain benefits/recovery for services by knowingly presenting any false information on a claim. HRS § 431:10C-307.7. For it to be a Class C Felony, the claim must exceed $300. Id. Whitaker argued on appeal that the court's instructions on false information and the valuation were erroneous.
No Plain Error for False Info. and the ICA Rewrite. The trial court instructed the jury that one of the elements of Ins. Fraud was that Whitaker “did knowingly present . . . false information on a claim[.]” Whitaker argues that this sentence did not indicate that the jury must find that Whitaker knew the information was false. False information, after all, is an attendant circumstance that must be proven with the requisite state of mind in a criminal case. HRS § 702-204 and 702-205.
Although Whitaker objected to this instruction on other grounds (the valuation element), the ICA reviewed this issue for plain error and found none. This shows that a general objection to a jury instruction is insufficient—at least when the rejected instruction does not reflect the issue raised on appeal. It does raise an interesting question. What if Whitaker’s proposed instruction reflected both the false information error and the valuation error? Would it have been sufficient to then make a general objection on the ground that it misstates the law? Surely a lawyer (and perhaps the trial court) would certainly hope so lest we see an era of involved and specific objections to jury instructions.
In spite of the failure to preserve the issue on appeal, the ICA proposed a better formulation of the first element of the instruction for future guidance: “Whitaker did knowingly present . . . information on a claim to AIG that Whitaker knew was false.”
You Gotta Believe (or Know). The issue that was preserved for appeal went to valuation. The court instructed the jury that it had to find that Whitaker “believed that the value of the benefits exceeded $300.” Whitaker wanted “knows” rather than “believes.” Generally, a person acts intentionally for attendant circumstances elements when the person, inter alia, “believes or hopes [the circumstances] exist.” HRS § 702-206. Moreover, when valuation is an element in an offense, HRS § 708-801(4) and (5) equate “knowing” w/ “believing.” Thus, the ICA found no error. Whitaker made the same argument for the Attempted Theft 2 instruction and got the same result from the ICA.
Common Terms Get No Special Treatment. The ICA curtly rejected Whitaker’s contention that there was error in failing to instruct the jury on the word “defense.” Courts needn’t define “common terms that are readily understandable[.]” According to the ICA, the “legal understanding of the term [‘defense’] is not significantly different from the common understanding of the term.”
Untimely Requests for Lessers Need Rational Basis for Acquittal. It is reversible error to deny a defendant’s timely request for an instruction on lesser-included offenses. State v. Kinnane, 79 Hawai’i 46, 49-50, 897 P.2d 973, 976-77 (1995). For an untimely request, however, the trial court should not give the instruction at all unless there is a “rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him [or her] of the [lesser.]” Id. Where there is a rational basis, it is plain error. The ICA found no basis here.
Tuesday, January 1, 2008
Background. Members of the HNL City Council introduced a resolution seeking to reorganize the Council’s standing committees. The resolution was adopted at a special meeting. Journalists reported that the council members had already discussed the resolution before the meeting was held. The Office of Information Practices (OIP) later questioned the validity of the resolution based on the Hawai’i Sunshine Law (HRS Ch. 92) because Council members had one-on-one chats about the resolution beforehand. Council members countered the OIP with memoranda of their own.
Months later the Council changed the Council Rules to allow the Chair to appoint all committees w/o having to hold a special meeting. Pursuant to these new powers, Donovan Dela Cruz, the Chair at the time, appointed the same members from the older resolution. Various non-profit organizations filed a complaint alleging that the Council violated the Sunshine Laws. The City filed motions to dismiss for mootness grounds, which were denied in part. The circuit court ultimately granted declaratory relief for Plaintiffs and awarded a reduced amount in attorney’s fees because Plaintiffs didn’t succeed in all claims.
May be Moot, but Exceptions Abound. Claims for violations of the Sunshine Law may be brought to the circuit court where a “prohibited act” occurs. HRS § 92-12(c). Claimants can bring the suit for the purposes to (1) require compliance with HRS Ch. 92 or (2) determine the applicability of HRS Ch. 92 to the “discussions or decisions” of public bodies subject to the Sunshine Law. Id. The ICA did not exactly reject the City’s argument that the “prohibited act” had been mooted by the subsequent change in the Council Rules. Rather, the ICA held that there was no error in denying the motion to dismiss because “several exceptions to the mootness doctrine apply here.”
First, there’s the public-interest exception allowing review when the issue affects the public interest. See Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968). Factors to consider include: (1) the public or private nature of the issue; (2) whether it is desirable for an “authoritative determination” for further guidance of public officers; and (3) the likelihood of future recurrence. Id. The Sunshine Law and compliance with it is “obviously a question of a public nature.” Moreover, the ICA held that an authoritative determination would be highly desirable and, given the Council’s opposition to the OIP, the issue could likely come up again.
Second, there’s the capable-of-repetition-yet-evades-review exception. Again, like the last factor in the public-interest exception, it is quite capable of being repeated.
Let the Sunshine In. The alleged violation centered around HRS § 92-2.5, which permits, in most cases, two members on a “board” to speak to one another in order to perform their duties. This is an exception to the general rule that every meeting of all boards shall be open to the public. HRS § 92-3.
While HRS § 92-2.5 does not expressly preclude the serial communications of the Council members, the Plaintiffs asserted that the round robin conversations were improper because it “circumvent[ed] the spirit . . . of [the Sunshine Law.]” HRS § 92-5. The ICA acknowledged that “the phrase ‘circumvent the law’ is far from plain and unambiguous[,]” looked to the policy declarations of the Sunshine Law to glean the Legislature’s intent, and held that “[w]hen Council members engage in a series of one-on-one conversations relating to a particular item of Council business . . ., the spirit of the open meeting requirement was circumvented and the strong policy of having public bodies deliberate and decide its business in view of the public was thwarted and frustrated.”
A Quandary. The ICA also noted that when an agency is charged w/ the responsibility of carrying out a statute of “broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.” Aio v. Hamada, 66 Haw. 401, 407, 664 P.2d 727, 731 (1983). The OIP is an agency responsible for the administration of the Sunshine Law. According to the ICA, its interpretation, which was favored by the circuit court, was not “palpably erroneous.”
This brings up an interesting point. The HSC recently reviewed a letter from the OIP regarding the Uniform Info. Practices Act de novo because its interpretation of the statute was not w/in its agency expertise. See Olelo. The HSC did not, however, make any mention of the old standard in Aio v. Hamada, as the ICA did here. What a quandary. Has Olelo (or perhaps Paul’s Electrical Service, Inc. v. Befitel, 104 Hawai’i 412, 419-20, 91 P.3d 494, 501-02 (2004), which was applied in Olelo) dispensed with this standard? This issue was not before the ICA. The de novo review of opinion letters comes when the agency is brought before the court and when the agency relies on its administrative decision. That was the case in Olelo. Here, we’ve got an intervening plaintiff and the OIP is not a party in this suit. There is no actual review of the agency decision. The answer to this puzzle, friends, will just have to wait.
Fees: If You Can’t Divvy It, Give In Full. Plaintiffs argued w/o preserving the issue for appeal that the circuit court failed to apply the analysis in Schefke v. Reliable Collection Agency, Ltd., 96 Hawai’i 408, 445, 32 P.3d 52, 89 (2001). Because no additional facts were needed, because resolution would not affect the findings of the lower court, and because of the “great public import” in encouraging Sunshine Law complaintants to bring actions and collect fees, the ICA addressed the issue. See State v. Moses, 102 Hawai’i 449, 456-57, 77 P.3d 940, 947-48 (2003). The ICA found that there was a common core of facts, the legal theories were related, and it would have been difficult to divide the hours expended on a claim-by-claim basis. See Schefke, 96 Hawai’i at 444, 32 P.3d at 88.
Note. The issue on standing to bring a Sunshine Law violation purs. to HRS § 92-12 allowed the Plaintiffs to bring forth this action. It was not addressed fully in this entry.