Tuesday, August 12, 2008

Prior Convictions and its Discontents

State v. Heggland (HSC August 8, 2008)

Background. Heggland pleaded guilty to two counts of promoting a dangerous drug in the third degree (HRS § 712-1243(1)) and prohibited acts relating to drug paraphernalia (HRS § 329-43.5(a)), which allegedly took place on August 28, 2003. The State moved for a mandatory minimum sentence on the grounds that Heggland was a repeat offender based on a prior offense in Colorado. The State admitted into evidence a printout from a Colorado government webpage indicating that he was sentenced on November 14, 1997 to a five-year term of imprisonment and was on parole until November 2004. The parties stipulated to the existence of the Colorado conviction. The circuit court, however, concluded that the State did not present sufficient evidence of the prior conviction as there was no evidence showing Heggland was represented by counsel or waived his right to counsel in Colorado. The ICA vacated and remanded.

Strictly Applying the Repeat Offender Statute to non-Hawai'i Priors. Mandatory minimums apply when the "instant felony was committee . . . within the maximum term of imprisonment possible after a prior felony of another jurisdiction." HRS § 706-606.5(2)(f). Hawai'i has indeterminate sentencing, which means that the court sentences a defendant to a maximum term of imprisonment while the Hawai'i Paroling Authority determines when the defendant is parole-eligibile. HRS § 706-669(5); Williamson v. Hawaii Paroling Auth., 97 Hawai'i 183, 191, 35 P.3d 210, 218 (2001). Thus, for indeterminate sentencing the phrase "maximum term of imprisonment possible" means the statutory maximum of imprisonment available for the offense.

But not every jurisdiction has indeterminate sentencing. In Colorado the court is sometimes required to place a defendant on parole at the end of his or her prison term. A violation of the conditions of parole could lead to re-imprisonment. This parole period, according to the HSC, may be part of the defendant's sentence, but it is not part of the "maximum term of imprisonment possible." The HSC cautioned that when applying HRS § 706-606.5(2)(f) to foreign sentencing schemes unlike Hawai'i's indeterminate sentencing, "it behooves this court to strictly apply the words of the statute." Whether the HSC would interpret the statute strictly for indeterminate schemes similar to Hawai'i remains to be seen.

Evidence of a Prior Conviction: Harder than it Looks? This cleared up the meaning of the mandatory minimum statute, but it certainly did not clear up the resolution of this case because, even if the ICA set the maximum imprison term without considering the parole term, the Colorado conviction still carried a maximum prison term of six years, which would still invoke HRS § 706-606.5. Heggland, however, argued that there was insufficient evidence showing the existence of the prior conviction (even though he stipulated to its existence). The HSC rejected this.

The Burden of Proof in Showing a Prior in five easy Steps. The HSC agreed with the ICA that Heggland failed to raise a good-faith challenge to the use of the prior Colorado conviction in the presentence report. Generally, the State has the burden of showing the existence of a prior conviction as well as the fact that the defendant was represented by counsel or waived his right to counsel "[u]nless conceded by the defendant." State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929 (1979). The ICA, in State v. Sinagoga, 81 Hawai'i 421, 918 P.2d 228 (App. 1996), articulated a five-step process in determining whether a defendant conceded. If so, then the burden shifts to the defendant. The HSC agreed with the ICA that Heggland did not challenge the use of the prior convictions. Rather, Heggland argued that the repeat-offender statute did not apply because the Hawai'i offense took place after the maximum term of imprisonment possible from Colorado.

Sufficient Evidence of a Prior. With the burden squarely placed on Heggland, the HSC addressed his challenges to the adequacy of the State's proof of the prior. Prior convictions may be proved by any evidence, "that reasonably satisfies the court that the defendant was convicted." HRS § 706-666(2). Certified copies of the indictment and the judgment and testimony of the probation officer assigned to prepare a presentence report are also sufficient evidence. State v. Frietas, 61 Haw. 262, 278, 602 P.2d 914, 926 (1979). Here, the State presented testimonial evidence of a parole officer with a computer printout from a Colorado database. The date of the prior conviction on the printout was consistent with the State's motion and the date provided in the presentence investigation report. There was no reason, according to the HSC, to question the sentencing date, and, therefore, even though the ICA may have misinterpreted the statute, it did not err in holding that the circuit court abused its discretion in finding insufficient evidence of a prior offense.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority about interpreting HRS § 706-606.5(2)(f). However, he disagreed with the applicability of Sinagoga. According to Justice Acoba, the five-step process in Sinagoga applies only when the defendant challenges the use of the prior conviction on the grounds that he or she was uncounseled during the prior or on the grounds that the prior conviction itself was not rendered against him or her. See State v. Veikoso, 102 Hawai'i 219, 227 n. 8, 74 P.3d 575, 523 n.8 (2003). Heggland did not challenge the use of the prior on either of those grounds so the Sinagoga burden-shift does not apply at all and the burden stayed with the State.

Justice Acoba also would have deferred to the circuit court's conclusion that there was insufficient evidence showing a prior conviction. The record shows no certified judgment or indictment and fails, according to Justice Acoba, to establish the existence of a prior conviction to the circuit court's satisfaction. However, because Heggland stipulated to the prior felony conviction in Colorado, Justice Acoba agreed with the majority that the circuit court abused its discretion in failing to consider the prior conviction.

Chief Justice Moon's Concurrence. Chief Justice Moon concurred in the result only.

Saturday, August 9, 2008

Evidence of Good-Faith Belief Negates Willful, and thus Criminal, Conduct

State v. Souza (ICA August 7, 2008)

Background. In 1999 and 2000 Souza demanded from his employer that nothing from his wages be withheld for federal and state taxes. In his state tax returns for those years, Souza claimed a refund, entered a zero on the line declaring his adjusted gross income, and reported negative taxable income. When Souza was told by an investigator from the Department of Taxation, Souza told him that he would file an amended tax return. He never did.

Souza was indicted for two counts of willfully filing a false tax return (HRS § 231-36(a)) and two counts of second-degree theft by deception (HRS §§ 708-830(2) and 708-831(1)(b)). Souza represented himself at trial. The circuit court refused to admit into evidence a number of Souza's exhibits, including a memorandum he prepared in 1996 setting forth legal research and analysis on which Souza formed the belief that he was exempt from paying his taxes based on his wages. The circuit court did, however, allow Souza to testify about his legal theory and Souza mentioned the memorandum. Souza explained that he sent various agencies copies of the memorandum and demanded that they respond within 30 days. They never did and Souza took this as a "default" on the part of the agencies. The State investigator testified to rebut Souza's claim that he had a good-faith belief that the State was exempted from taxing his wages. The jury found Souza guilty as charged.

The Good-Faith Defense Negates Willful Conduct (in Criminal Prosecutions).
When construing three particular criminal offenses in the Hawai'i tax code, including HRS § 231-36, courts must be "in accordance with judicial interpretation [of] similar provisions of [the federal Internal Revenue Code]; . . . the term 'wilfully' shall mean a voluntary, intentional violation of a known legal duty." HRS § 231-40. In light of the statute, the ICA adopted the good-faith defense in United States v. Cheek, 498 U.S. 192 (1991).

In that case, the Supreme Court of the United States held that a defendant's good-faith belief that he or she had no duty to pay taxes is a defense in a criminal prosecution when it can negate willful action--even when the defense applies even when the good-faith belief or misunderstanding is "plainly wrong" and "objectively unreasonable." Id. at 202. According to the U.S. Supreme Court, a defendant's good-faith belief or misunderstanding negates willful conduct because it would be impossible to intentionally breach a legal duty if noncompliance is based on ignorance or an honest misunderstanding of the law. Id. at 202. However, it is not a good-faith misunderstanding or ignorance when the defendant failed to pay taxes because he or she claimed that they were unconstitutional. Id. at 204-05. The reason for the distinction, according to the Cheek court, is that a constitutional challenge demonstrates an understanding of the legal duty imposed by the law and that noncompliance was based not on ignorance or a misunderstanding, but disagreement with its legitimacy. Id. at 203 n. 8.

So it Should've Come in. In light of Cheek, the ICA held that the circuit court erred in denying Souza's memorandum. First, contrary to the circuit court's conclusion, the memo was relevant because it had a tendency to make a fact of consequence--Souza's good-faith belief that the State could not tax his wages--more probable. See HRE Rule 401. Secondly, the circuit court abused its discretion in denying the memorandum on HRE 403 grounds as it would confuse the jury. See State v. Sale, 110 Hawai'i 386, 392, 133 P.3d 815, 821 (App. 2006) (decisions based on HRE Rule 403 reviewed for abuse of discretion). The ICA explained that the memorandum "went to the heart of Souza's good-faith defense, and the jury should have been permitted to consider the exhibit in deciding the crucial question of willfulness." Nor was the error harmless beyond a reasonable doubt. Even though Souza testified about the document and his good-faith understanding of Hawai'i tax laws as they applied (or rather did not apply) to his wages, the memorandum could have "corroborat[ed] and lend[ed] credibility to [his] testimony." Given that the good-faith belief was "central to his defense," the ICA did not find the error harmless beyond a reasonable doubt.

Getting Cheeky? The ICA applied the same analysis to the theft-by-deception charges. The indictment averred that Souza engaged in conduct with the specific intent to deceive. The ICA appeared to have extended the Cheek defense to these charges too and, thus, the circuit court should have admitted Souza's memo for the jury to consider the other charges too. These charges were not criminal violations of the tax code, but came from the Hawai'i Penal Code. Does this mean that the good-faith misunderstanding or belief that the laws do not apply to a defendant can negate any criminal prosecution alleging willful conduct? How far Cheek goes is anyone's guess.

Forget About Good-Faith for Civil Proceedings? It may not go far outside of criminal prosecutions. The ICA, in dictum and relying exclusively on federal case law, noted that in civil proceedings where the government attempts to collect outstanding taxes, the individual cannot rely on a good-faith belief that he or she had no duty under the law to pay that tax. This strongly suggests that the good-faith defense would not apply when the Department of Taxation initiates civil proceedings. Because it is dictum, however, no crystal clear determination emerges. The ICA relied exclusively on federal case law, and this time, without the mandate from HRS § 231-40, which directs courts to interpret three specific criminal offenses in the tax code in accordance with federal precedent. That particular statute does not speak to civil proceedings. Thus, the reliance by the ICA on federal case law is independent of a statutory mandate.

Other Exhibits and the Nuances of a Sufficiency-of-the-Evidence Claim. The ICA declined ruling on whether the circuit court erred in denying the rest of Souza's exhibits in light of the remand for a new trial. It also disagreed with Souza and held that there was sufficient evidence adduced at trial to support the jury verdict even though the case is going to be retried for the evidentiary errors. And that makes sense. When the appellant challenges the sufficiency of the evidence presented at trial, appellate courts view the evidence in the light most favorable to the prosecution. State v. Smith, 106 Hawai'i 365, 372, 105 P.3d 242, 249 (App. 2004). The question is whether there was sufficient evidence supporting the conclusion of the trier of fact. Id. It is irrelevant whether that conclusion will be different in light of the corrected evidentiary ruling on remand.

Monday, August 4, 2008

Incriminating Answers to non-Incriminating Questions

State v. Rippe (ICA July 31, 2008)

Background. Police learned of a man in Waikiki taking a license plate. When they arrived at the scene, they encountered Rippe leaning over a BMW with a license plate in hand. An officer asked Rippe if the BMW was his, and Rippe said it was. The police suspected the BMW was stolen, and wanted to search the car for the VIN. It turned out that the BMW was in fact registered to him, but the license plate in question was not. Rippe was arrested for theft in the fourth degree. As the police searched the car for the VIN, they found a blue nylon bag underneath the driver's seat. They took it out of the car and asked Rippe if he would consent to a search of the bag. Rippe said it was not his bag. The police then searched it and found methamphetamine and related paraphernalia. They asked follow up questions about the BMW, and Rippe explained that plenty of people put stuff in his car. At the station, Rippe gave a statement after his Miranda warnings. He was charged with promoting a dangerous drug in the 3d (HRS § 712-1243), unlawful use of drug paraphernalia (HRS § 328-43.5), and theft in the 4th (HRS § 708-833(1)). Rippe filed a motion to suppress the evidence in the bag, all of the statements made at the scene, and his statements at the station. The circuit court suppressed the evidence in the blue bag and the statements about the bag at the station. The State appealed.

Request to Search is not an Interrogation Requiring Miranda. The State is required under Article I, § 10 of the Hawai'i Constitution to show that statements made during a custodial interrogation were safeguarded with Miranda warnings before they can be used at trial. State v. Ketchum, 97 Hawai'i 107, 116, 34 P.3d 1006, 1015 (2001). The State argued that although Rippe was in custody when the police asked for his consent to search the bag, that particular question was not an interrogation requiring Miranda warnings. An "interrogation" usually means the "express questioning or its functional equivalent." Id. at 119, 34 P.3d at 1018. Ultimately, the issue is whether, based on a totality of the circumstances, "the police officer should have known that his or her words or action were reasonably likely to elicit an incriminating response from the person in custody." Id. The ICA agreed with the State that request to consent a bag is not an "interrogation" designed to elicit an incriminating response because, according to the ICA, such a request is "not a request for information." State v. Blackshire, 10 Haw. App. 123, 137, 861 P.2d 736, 743 (1993) overruled on other grounds by State v. Ah Loo, 94 Hawai'i 207, 10 P.3d 728 (2000).

But the Follow up Questions Are. The focus here is not on the answer. Rippe responded by saying that the bag was not his. It is clear enough that that answer would certainly be incriminating. However, the officer's question was whether Rippe would allow them to consent to a search. The ICA agreed with the State that that was no reasonably likely to elicit the incriminating response. However, the ICA examined the follow up questions the BMW and held that they were reasonably likely to elicit an incriminating response. After all, even if the officers asked Rippe to explain why the drugs were not his, they were still "incriminating responses." See State v. Joseph, 109 Hawai'i 482, 128 P.3d 795 (2006).

Of Course There's Standing! The ICA rejected the State's contention that Rippe had no standing to challenge the evidence seized from the nylon bag at his own trial because he disclaimed ownership of the bag at the scene of the crime. A criminal defendant "always has standing to challenge the admission of evidence introduced by the State." State v. Taua, 98 Hawai'i 426, 436 n. 19, 49 P.3d 1227, 1237 n. 19 (2002). The ICA relied on cases that explained that the State "cannot charge a person with possession and then deny . . . his remedy at law to object to the search and seizure[.]" State v. Dias, 52 Haw. 100, 105, 470 P.2d 510, 513 (1970).

With Reckless Abandon? The other issue raised by the State centered around the purported abandonment of the bag. A defendant has no privacy interest in abandoned property so a warrantless search and seizure of that property does not violate the Fourth Amendment to the U.S. Constitution or Article I, § 7 of the Hawai'i Constitution. State v. Kolia, 116 Hawai'i 29, 33-34, 169 P.3d 981, 85-86 (App. 2007). The question is whether Rippe abandoned the property. Abandonment centers around the intent of the purported relinquisher. Intent may be inferred from words spoken or acts. State v. Mahone, 67 Haw. 644, 648, 701 P.2d 171, 175 (1985). When a defendant says nothing in response to the question of whether he or she owns the item to be searched, it cannot be inferred that the defendant abandoned the property. State v. Joyner, 66 Haw. 543, 545, 669 P.2d 152, 153 (1983). However, an express denial of ownership does infer the intent to abandon the property. State v. Mahone at 648, 701 P.2d at 175. According to the ICA, Rippe's "unequivocal disclaimer of ownership shows his intent to abandon the bag" and, thus, the warrantless intrusion into the bag did not violate the state and federal constitutions.

A Simple "No" (or no Answer at all) Would Suffice. First, there's the issue of whether the police officer's question about a piece of property arises to a "custodial interrogation" prompting Miranda warnings. In this case, the ICA held that the request to consent is not. Instead of refusing to consent, however, Rippe said that the bag was not his. This leads to the second constitutional question -- whether Rippe abandoned the bag so that the police could search it without a warrant. According to the ICA, this non sequitur response could be used to infer the intent to abandon. However, the ICA, in a footnote, pointed out that when the police ask a person questions that would inculpate him or her if the person claims ownership, a disclaimer of ownership is not an inference of abandonment. This dovetails back into the first issue. If the police were to ask questions of that sort to someone in custody, they are arguably conducting a "custodial interrogation." Any response would be suppressed if they failed to Mirandize the defendant. Not only that, but if the answer was a disclaimer, it cannot be used to infer the intent to abandon property. Rippe's case is different, and the use of the evidence in the bag and his disclaimer all hinged on his inability to answer the officer's simple yes-no request to consent. Perhaps it would have been better for Rippe to say nothing. That way no statement exists in need of suppression; and, pursuant to Joyner, his silence could not have been used to infer abandonment.

But it Could all be moot if . . . Rippe, the appellee, argued that in spite of all of the State's arguments to reverse the suppression, there was ample evidence showing that the search of the BMW was unlawful. The ICA noted that the issue was raised before the circuit court, but it failed to resolve it. The ICA did not resolve it either and remanded the case back to the circuit court. If the initial search was unlawful, then the evidence from the bag must be suppressed on those grounds.