Tuesday, September 30, 2008

Notice Requisites not an Unconstitutional Impediment

State v. Pond (HSC September 29, 2008)

Background.
Pond was charged with abuse of family or household member (HRS § 709-906) and interference with reporting an emergency or crime (HRS § 710-1010.5). Just before trial, Pond asked for a continuance so that he could give reasonable notice to the State pursuant to HRE Rule 404(b). Pond wanted to present evidence that Russell "smacked" Pond about two weeks before the alleged abuse. Pond did not provide notice earlier because he did not have the actual time of the "smack" until the morning of trial. The circuit court denied the continuance and denied the admission of the evidence because the notice was not "reasonable."

At trial, Miae Russell testified that Pond, her boyfriend, came home drunk one night and attacked her. Russell testified that she tried to call the police for help, but Pond grabbed the phone and threw it against the wall. She admitted that she hit him back, but explained that it was in self defense. On cross-examination, Pond's counsel asked Russell if she smoked marijuana that night. The State objected. At a bench conference Pond explained that evidence of her marijuana use could be used to impeach her and undermine her credibility. The court, however, considered it a "prior bad act" for which there was no HRE Rule 404(b) notice. The question was stricken and the jury was instructed to disregard it.

Pond testified that when he came home after eating dinner with another woman he saw that half a bottle of vodka in their home. Pond kissed Russell, but she bit down on his lip. Pond bit on her lip so that she would release him. When she did, she was in a rage because she smelled perfume on him. She started punching him. Pond testified that the punches were fast and hard so he pushed her. She fell onto the bed. Russell grabbed the phone and they started arguing. He admitted to grabbing the phone, but did not know what became of it. Pond testified that he did not know who she was calling. Pond began to testify about being "smacked" about an incident a week before but the State objected and the circuit court sustained, struck the last question, and told the jury to disregard his answer. The jury found him guilty as charged. The ICA affirmed.

"Reasonable" Notice of HRE Rule 404(b) Evidence not Unconstitutional Under the "Legitimate Interest" test. In a criminal case, the proponent offering evidence of crimes, wrongs, or acts must provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown of the date, location, and general nature of any such evidence it intends to introduce at trial." HRE Rule 404(b). This notice requirement, unlike the federal rules of evidence, applies to both the prosecution and the defendant. The HSC rejected Pond's that the notice requirement was an unconstitutional deprivation of his right to confront adverse witnesses under both the Sixth Amendment and Art. I, section 14 of the Hawai'i Constitution.

The HSC explained that the right to present "relevant testimony is not without limitation" and may "bow to accommodate other legitimate interests in the criminal trial process." Rock v. Arkansas, 483 U.S. 44, 55 (1987). Thus, the HSC evaluated "whether the interests served by [this evidentiary rule] justify the limitation imposed on the defendant's constitutional right to testify." Id. at 56. The HSC applied this "legitimate interest" test by examining the policeis underlying the evidentiary rule. See Michigan v. Lucas, 500 U.S. 145 (1991). The HSC examined the policy underlying the notice rule and agreed with the ICA that it is designed to reduce surprise and promote early resolution of cases. These policies, according to the HSC, were not unconstitutional infringements on the right to testify and confront witnesses.

Preclusion of Marijuana Smoking an Abuse of Discretion. Finding no constitutional infirmity, the HSC also held that the circuit court did not abuse its discretion in refusing to admit evidence of the "smack." The circuit court concluded--and both appellate courts agreed--that Pond failed to establish good cause for not giving reasonable notice sooner. The HSC opined that Pond "could have given the prosecution general notice prior to trial to eliminate undue surprise and allow the prosecution the opportunity to prepare for this matter." A "general notice" is perhaps better than no notice. Furthermore, the HSC may have articulated a third purpose for the notice requirement--the "opportunity to prepare."

Cross-Examination about the Sensory Perception Required. The majority and the dissenting Justices agreed that the circuit court erred in refusing to allow Pond to cross-examine Russell about her marijuana use that night. A defendant may cross-examine the witness about his or her "drug use and addiction at or near the time of the incident to the extent that it affected [his or] her perception or recollection of the alleged event." State v. Sabog, 108 Hawai'i 102, 111, 117 P.3d 834, 843 (App. 2005). This is well within the scope of cross-examination as a form of impeachment. See Davis v. Alaska, 415 U.S. 308, 316. Evidence that Russell was smoking marijuana on the night of the alleged abuse was proffered to show that her perception was compromised and she was not credible. Evidence impeaching "a witness' sensory or mental defect does not fall under the purview of HRE Rule 404(b)" and thus did not require Pond to give "reasonable notice."

Nor was this preclusion harmless beyond a reasonable doubt. Had Pond questioned Russell about her marijuana use that night, the jury would have been able to evaluate her perception and judge her credibility. In convicting Pond as charged, the jury found Russell credible over Pond. This all indicated that there was a "reasonable possibility that the errors . . . contributed to Pond's conviction."

The Self-Defense Instruction not Defective. Use of force for self-protection is a defense and "a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering, possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action." HRS § 703-304(3). A jury "must consider the circumstances as the Defendant subjectively believed them to be at the time he tried to defend himself." State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990). Pond's jury was instructed that a person "employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be when the force is used without retreating." Pond argued that the instruction failed to inform the jury that the reasonableness of his belief must be viewed from his perspective. The HSC disagreed and held that the instruction "sufficiently track[ed]" the language in HRS § 703-304(3).

A Clarification on Elements. The HSC clarified the elements of interference with an emergency call. There are three kinds of elements to an offense: (1) the conduct; (2) attendant circumstances; and (3) the results of the conduct. HRS §§ 702-204; 702-205. An "attendant circumstance" is defined as those circumstances that are neither the conduct nor the results thereof. State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005). A person is guilty of interference with an emergency call if he or she intentionally or knowingly "prevents a victim or witness to a criminal act from calling" 911 or an emergency telephone system. HRS § 710-1010.5. The HSC clarified that in that offense, the conduct would be an act and the result of that act would be the prevention of making the call. Thus, there are two attendant circumstance would be that the caller was a victim of or witness to a crime and that the call was to an emergency telephone system.

Justice Acoba's Dissent and Concurrence--HRE Rule 404(b) Notice and the Hawai'i Constitution. Justice Acoba concurred with the majority when it came to vacating and remanding on the circuit court's preclusion of the marijuana smoking. However, Justice Acoba believed that the HRE Rule 404(b) notice requirement cannot be applied with equal force to both the defendant and the State. The federal rules of evidence require only the prosecution to provide reasonable notice to the defendant of FRE 404(b) evidence. This distinction, wrote Justice Acoba, warranted different treatment when the defendant is required to provide notice to the prosecution. Neither the ICA nor the majority adequately balanced the policies underlying the notice rule with the defendant's constitutional right to present evidence at trial.

Justice Acoba turned to State v. Peseti, 101 Hawai'i 172, 65 P.3d 119 (2003), in which the HSC balanced the exclusion of evidence against the defendant's right to present that evidence as provided by the Hawai'i Constitution. According to Justice Acoba, the defendant's right under the Hawai'i Constitution trumps an evidentiary exclusion "when the defendant demonstrates that (1) there is a legitimate need to disclose the protected information; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists." Id. at 182, 65 P.3d at 129 (quoting State v. L.J.P., 270 N.J. Super 429, 637 A.2d 532, 537 1994)). Justice Acoba found this case analogous to Peseti and would have applied the three-part test.

Peseti Distinguished by Majority. The HSC did, however, distinguish Peseti. According to the HSC, Peseti concerned the tension between a defendant's right to confront witnesses and present evidence at trial and a statutory privilege excluding the evidence. The test laid out in Peseti, explained the HSC, is limited only to the statutory privileges. This case, however, addressed the tension between evidentiary notice requirements and the defendant's rights to present evidence at trial. Unlike privileged communications, the notice requirement is not an absolute bar of evidence. It only restricts the use of evidence when it is not in compliance with the notice procedure. Moreover, the HSC stated that "to hold that the Peseti rule applies to the admission of defendants' HRE Rule 404(b) evidence, on the basis of protecting defendants' constitutional rights, would effectively rewrite HRE Rule 404(b) and render the notice requirement per se unconstitutional." Justice Acoba, however, was unconvinced. "The majority's desire to ignore the Peseti precedent cannot be justified because the majority may be unhappy with the result this court's own precedent demands. Whether correct or not, the majority's view that HRE Rule 404(b) evidence 'would always satisfy the Peseti test' is not a basis for rejecting it in any specific case."

Acoba: the Continuance of Trial. Justice Acoba also believed that the circuit court erred in denying the continuance. The circuit court did not consider Pond's constitutional rights to present evidence and effectively cross-examine adverse witnesses. At the very least, the circuit court should have inquired into the feasibility to cure any perceived prejudice suffered by the State. See State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987); State v. Dowsett, 10 Haw. App. 491, 878 P.2d 739 (1994).

Acoba: the Self-Defense Instruction. Justice Acoba also took issue with the self-protection instruction. According to Justice Acoba, an instruction on use of force for self-defense is measured from the viewpoint of a person "in the defendant's position." State v. Pemberton, 71 Haw. at 477, 796 P.2d at 85; State v. Estrada, 69 Haw. at 224-25, 738 P.2d at 826. See also State v. Augustin, 101 Hawai'i 127, 63 P.3d 1097 (2002). This is not the same as viewing the circumstances "as the defendant reasonably believe[d] them to be." The difference is one between the legally correct subjective standard from the erroneous objective one. Thus, that too was error for Justice Acoba.

Justice Duffy's Dissent and Concurrence. Justice Duffy concurred with the majority on everything but one point: the jury instruction on self-defense. Justice Duffy wrote that "the jury instruction given was improper and prejudicial for the reasons stated by Justice Acoba[.]"

Thursday, September 18, 2008

ICA Demands Post-Trial (and Perhaps Post-Conviction) Examination of DNA in "Unusual Circumstances"

State v. Pavich (ICA September 16, 2008)

Background. Dr. Bird was found dead in his Kihei, Maui apartment. Blood was smeared on the walls, soaked on a pillow near his head, and on a bunch of napkins. The cause of death was "manual strangulation." Pavich was Avilla in her Kihei apartment along with Estencion, Granados, and Abraham. Pavich was charged with burglary in the first degree, kidnapping, robbery in the first degree, murder in the second degree, and was separately charged with possession of methamphetamine and possession with the intent to use drug paraphernalia. All seven counts were tried together. The State sent to a private laboratory, Genetic Technologies, the bloody napkins for a DNA analysis. Pavich's hired another laboratory for an independent DNA analysis with Forensic Science. Genetic Technologies reported that the blood on the napkins could belong to Bird, Pavich, or Avilla. During jury selection, the State sent Pavich a supplemental report which concluded that Pavich "could not be excluded as a major contributor to" the blood on the napkins.

According to the testimonies of Avilla, Estencion, and Granados, and Abaraham, Pavich wanted to rob Bird's apartment that night because Bird called the police on their drug use in the past. Avilla drove Pavich to Bird's and waited in the parking lot. When she heard a scuffle, she ran inside and saw Bird and Pavich struggling on the floor. Pavich was hitting Bird several times with a lamp. Avilla gave him a blender cup and he hit him with that too. It appeared to Avilla that Pavich was choking Bird. When they came back to Avilla's apartment, they were hysterical. Pavich told Estencion that Bird bit him and had teeth marks on his hand. Two weeks after the incident, Pavich was spotted by the police carrying a black bag. He dropped the bag and fled. Pavich later turned himself in. The bag had drug paraphernalia in it.

The State also called a lab technician from Genetic Technologies to testify about the results of the supplemental report. The technician testified that Pavich could not be excluded as a "major contributor" to the body fluids found on the napkins and that Pavich's DNA profile occurs in approximately 1 in 66 million Caucasians, 1 in 1 billion African-Americans, and one in 160 million in the Hispanic population. After that, Pavich moved for a mistrial or, in the alternative, to strike the testimony about the findings in the supplemental report. The circuit court struck the State's testimony about the probability, but did not strike the testimony on the matched profile. The circuit court denied the motion, but allowed a one-week continuance so that Pavich's DNA expert at Forensic Science could perform a "peer review" of the supplemental report. When Forensic Science refused, and said it would take two months to complete, the circuit court refused a further continuance. Pavich was found guilty of murder, kidnapping, robbery, burglary, and possession of paraphernalia. He moved for a new trial and sought approval of funds for another DNA expert to perform the peer review. The motion was denied.

No Errors at Trial Mainly Because Pavich Failed to Object. The ICA found no error in admitting the DNA evidence and related testimony at trial. The ICA explained that it did not move to exclude the testimony and findings in a motion in limine and Pavich did not object to the testimony during trial. There being no objection, the ICA refused to find error. As for the refusal to continuance in order to find an expeditious expert, the ICA held that the circuit court did not abuse its discretion. State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279, 1281 (1993) ("motion for continuance is addressed to the sound discretion of the trial court."). The ICA explained that there was no assurance a peer review could be completed within a reasonable time and a lengthy continuance might have detrimentally effect the jury. Nor did the ICA find error in the refusal to strike all of the technician's testimony. According to the ICA, Pavich did not object to the testimony before it was admitted. There was no objection at the time and there was no motion in limine. Moreover, Pavich had sufficient notice of the testimony because the supplemental report was disclosed months before trial. Thus, the ICA concluded that "any disadvantage created by the admission of [the testimony] was the product of Pavich's own inaction."

But Unusual Circumstances Arose to Error at Post-Trial. The ICA, however, held that the circuit court should have granted Pavich's request funds for a post-trial peer review. Aside from the DNA evidence, the State had nothing other than the testimonies of Pavich's roommates. The DNA evidence itself failed to "establish that Pavich's DNA was, in fact, found in the napkin stains." These circumstances, "where a combination of factors resulted in the major-contributor and probability testimony being presented to the jury without the defense having conducted a peer review[,]" were "unusual." According to the ICA, the post-trial peer review is necessary to rebut the testimony from Genetic Technologies. Without the peer review, it is impossible to determine whether "the jury's exposure to this testimony deprived [Pavich] of a fair trial."

Try now, ask Later? The ICA did not expressly fashion a bright-line rule for post-trial DNA tests but it did leave clues for guidance. These circumstances were "unusual" because the evidence presented to the jury was not definitive as to whether the DNA matched Pavich. Moreover, this evidence was not subject to a peer review and it was simply impossible to determine if the evidence deprived Pavich of a fair trial. The ICA has created an unusual situation here. The circuit court did not abuse its discretion in refusing a continuance, but it erred in refusing to allow funds for a post-conviction DNA. This suggests that a trial may proceed with DNA evidence that was not subjected to a peer review and, once a guilty verdict comes down, the defendant may be allowed to examine that DNA evidence used against him or her. Is this a case of try now, ask later?

Probably not. Pavich failed to file a motion in limine and he did not object to the evidence at the time of trial. Thus, the testimonial evidence was properly admitted. The ICA remanded Pavich's case to allow a post-trial peer review. And if the review is consistent with Genetic Technology's testimony, then the failure to conduct the peer review did not affect outcome after all, and a new trial would be unwarranted. Whatever the result, if the circuit court denies Pavich's motion for a new trial, he would be able to appeal that. Had Pavich objected to the admissibility of the evidence before or during trial, he would have been in a better position to argue for a new trial on appeal.

So What's the test? The ICA did not expressly fashion a bright-line rule for post-trial DNA tests. But it did leave clues for guidance in turning to case law outside the jurisdiction. Specifically, "a defendant is entitled to post-trial DNA testing" when the State's "proof's are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt or innocence once and for all." State v. Thomas, 586 A.2d 250, 254, (N.J. Super. Ct. App. Div. 1991); Commonwealth v. Brison, 618 A.2d 420, 425 (Pa. Super. Ct. 1992). The ICA appeared to have applied this standard by explaining that the State's evidence against Pavich "was not especially strong" and that the technician's testimony may have influenced the jury. The last condition from Thomas--a way to establish guilt or innocence once and for all--was not fully explored (it's unclear what that even means). Whether this last factor, or the Thomas standard at all, is crucial for later post-trial DNA questions remains to be seen.

The Footnote: Post-Trial v. Post-Conviction DNA Testing. In footnote 11, the ICA pointed out that HRS §§ 844D-121 to -133 sets out a procedure for post-conviction DNA testing. Those procedures allow a defendant who has been convicted and sentenced to move for DNA analysis of the evidence used against him or her at trial. HRS §§ 844-121 and -123. The statutes here did not apply because the motion for and denial of funds for DNA testing occurred before he was sentenced. Because neither party even mentioned these statutes, the ICA did not address them in deciding the case. And so another question emerges: whether the analysis in this case is limited to cases where a request for DNA funds or DNA testing is brought and decided after trial, but before sentencing.

The Motion to Sever. The ICA rejected Pavich's contention that the circuit court erred in failing to sever the incident with Bird from the drug charges. The ICA first pointed out that because Pavich failed to renew the motion to sever at the close of the State's case or at the close all of the evidence, the claim is waived. State v. Balanza, 93 Hawai'i 279, 288, 1 P.3d 281, 290 (2000). Nevertheless, the ICA considered the merits and still rejected Pavich's claim. Charges are properly joined when they are "based on the same conduct or on a series of acts connected together or constituting parts of a single plan." HRPP Rule 8(a). The circuit court may sever charges if it appears that joinder prejudices the defendant. HRPP Rule 14. In deciding whether severance is appropriate, the court must "weigh the possible prejudice to the defendant against the public interest in judicial economy." State v. Balanza, 93 Hawai'i at 289, 1 P.3d at 289. The ICA first concluded that the drug charges were properly joined because they were based on a series of acts connected together. According to the ICA, Pavich's motive to rob Bird, explained the ICA, was to get money for drugs. The ICA then concluded that Pavich was not prejudiced in trying the charges together. The ICA explained that even if they had been severed, the evidence of the drug possession would have been admissible in the case relating to Bird. There was also ample evidence of drug use among Pavich and his roommates. According to the ICA, there was no prejudice.

Non-Disclosure of Avilla's Plea Bargain. The ICA found no merit in Pavich's claim that the State should have disclosed certain parts of Avilla's plea agreement. The ICA agreed with the circuit court that nothing exculpatory or potentially exculpatory was withheld from Pavich.

No Instruction on EMED Necessary. The ICA also held that there was no error in refusing to instruct the jury on the defense of extreme mental or emotional disturbance. First and second degree murder is reduced to manslaughter when, "at the time [the defendant] caused the death of the other person," (1) the defendant was under the influence of an extreme mental or emotional disturbance (2) for which there is a reasonable explanation. HRS § 707-702(2). Pavich argued that the instruction should have been read because there was sufficient evidence showing that he was panicked and stressed after the death. The ICA rejected this argument. The EMED defense focuses on the defendant's state of mind "at the time" the crime was committed. State v. Moore, 82 Hawai'i 202, 210, 921 P.2d 122, 130 (1996). Evidence that Pavich was in a panic when he returned from Bird's apartment does not support the EMED defense. Nor would evidence that Pavich was highly agitated after Bird bit him. "[I]t is implicit that [EMED] will not reduce murder to manslaughter, if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as involving himself in a crime." State v. Dumlao, 6 Haw. App. 173, 182 n. 13, 715 P.2d 822, 829 n. 13 (1986), overruled on other grounds in State v. Seguritan, 70 Haw. 173, 766 P.2d 128 (1998). The ICA also concluded that even if there had been sufficient evidence supporting the EMED defense, the failure to instruct the jury was harmless beyond a reasonable doubt.

Sunday, September 14, 2008

Parental Discipline not an Affirmative Defense and Measured by "Reasonableness"

State v. Roman (HSC September 11, 2008)

Background. Roman lived with his girlfriend and her 17-year-old son. On Mother's Day Roman was making tacos for dinner and asked the boy to get up off the futon and grate some cheese. Roman told him that he was not doing it right and told him to back off. Roman left the house and when he came back he saw that the boy hadn't moved from his spot on the floor. Roman testified that he "kicked him in his okole." At that point, the boy stood up and stared at him with clenched fists. Roman asked him some questions, but the boy was nonresponsive. Roman slapped him a few times. The mother tried to intervene, but she was hit by Roman. She called the police. After a bench trial, the family court concluded that the parental-discipline defense did not apply. The ICA disagreed and found the family court in error, but that the error was harmless beyond a reasonable doubt. Judge Nakamura dissented.

Once Raised, the Burden to Disprove the Parental-Discipline Defense Shifts to the Prosecution. The State must prove beyond a reasonable doubt that the defendant knowingly or intentionally physically abused a family or household member. HRS § 709-906. Under the parental-discipline defense, however, a parent, guardian, or other person similarly responsible, may use force (1) that is employed with due regard to the age and size of the recipient and reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of misconduct; and (2) the force was not designed to cause, or known to cause a risk of causing, substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage. HRS § 703-309; State v. Crouser, 81 Hawai'i 5, 10-11, 911 P.2d 725, 730-31 (1996).

The defense is available "so long as some evidence was adduced, no matter how weak, inconclusive, or unsatisfactory it might be[.]" State v. Stocker, 90 Hawai'i 85, 95, 976 P.2d 399, 409 (1999). This is not an affirmative defense. Therefore, once the defendant raises the defense, the burden shifts to the State to prove beyond a reasonable doubt that the defendant's conduct fell out of the scope of the parental-discipline doctrine. The ICA held that there was enough evidence to raise the defense, but this error was harmless because there was sufficient evidence to negate the defense. The HSC disagreed.

Evaluating "Reasonableness." The force discipline a child must be reasonable. The HSC explained that the force used must be (1) reasonably proportional to the misconduct being punished; and (2) reasonably believed by the parent as necessary to protect the welfare of the recipient. State v. Matavale, 115 Hawai'i 149, 164-65, 166 P.3d 322, 337-38 (2007). The HSC further explained that the means used to apply the force must also be reasonable, and thus, the factfinder "must consider the child's age, the child's stature, and the nature of the inflicted injuries, i.e., whether the force used was designed to cause or known to create substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage given the child's age and size." Id.

The HSC disagreed with the ICA because in this case, the 17-year old was "hardly a child." Moreover, the HSC concluded that the family court's distinction between a failure to cooperate and defiance "defie[d] logic." The boy stood up angrily with his fists clenched and did not respond to Roman before Roman slapped him. The HSC also pointed out that no medical attention was required. The HSC held that Roman's conduct was a use of force reasonably proportionate to the defiance and was reasonably believed as necessary to discipline the boy. Moreover, it was not designed to cause or known to create a risk of substantial bodily injury.

The Other Discipline Cases. The HSC also compared Roman's conduct to three other cases where the parent's conduct fell within the scope of the parental-discipline defense. See State v. Kaimimoku, 9 Haw. App. 345, 347-48, 841 P.2d 1076, 1077-78 (1992) (defendant slapped daughter's face, punched shoulder, and left scratch and bruises); State v. Deleon, 72 Hawai'i 241, 242-43, 813 P.2d 1382, 1383 (1991) (fourteen-year-old daughter hit above her knees leaving bruises.); State v. Matavale, 115 Hawai'i at 167, 166 P.3d at 340 (after continuously defiant behavior, mother hit her daughter with a plastic backpack, a plastic hanger, and the back of a brush). The HSC contrasted this acceptable conduct from other cases where the use of force was unreasonable. See State v. Tanielu, 82 Hawai'i 373, 922 P.2d 986 (App. 1996) (multiple punches to the face, stomping on the face, and pulling ears left facial bruises and lacerations and did not fall within parental-discipline defense); State v. Crouser, 81 Hawai'i at 8, 911 P.2d at 728 (hitting her across the face, knocking daughter to the floor, throwing her onto the bed, and hitting bare buttocks with a plastic bat left dark bruises and hurt for a few weeks).

Justices Nakayama's and Acoba's Concurrence. Justices Nakayama and Acoba concurred in the result only.

Monday, September 8, 2008

Unnecessary, but not Necessarily Erroneous Instructions

Moyle v. Do Re Mi Karaoke (HSC September 4, 2008)

Background. After a long night of drinking, Moyle went to Do Re Mi Karaoke and drank some more. At Do Re Mi, Moyle ran into Simi Tupuola, who beat him up outside after Do Re Mi closed. Moyle sued Do Re Mi for negligence. Two years into the litigation, Do Re Mi attempted to bring Tupuola into the lawsuit, but the circuit court denied its motion. A jury concluded that Moyle was 5 % liable, Tupuola 95%, and Do Re Mi and the various owners were not liable. The ICA affirmed. Moyle appealed.

The Foreseeability Instructions were Prejudicially Misleading. The HSC first held that the jury instructions on foreseeability so prejudicially misleading that it arose to reversible error. A landowner generally does not have a duty to protect others from the criminal acts of a third party. Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 162, 829 P.2d 512, 515 (1992). However, when the landowner and the injured party have a "special relationship," the landowner has a duty to protect from criminal acts that are "reasonably foreseeable." Id. at 163-65, 829 P.2d at 515-16. For example, a person who "is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land" has a "special relationship." Id. at 164, 829 P.2d 515-16. The HSC explained that the jury instructions correctly explained the rationale underlying general rule, but because Moyle unquestionably had a "special relationship" to the owners of Do Re Mi Karaoke, that rationale had no place here. Thus, according to the HSC, the jury instructions were inconsistent and misleading and, therefore, in error. Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Hawai'i 286, 297, 141 P.3d 459, 470 (2006).

Nothing Wrong in Including Instructions of NON-Liability. The HSC, however, found nothing wrong in instructing the jury on a "dram shop action." Specifically, the circuit court instructed the jury that serving liquor to an already-intoxicated person does not arise to actionable negligence from which the intoxicated person can recover from the establishment. The HSC explained that the circuit court did not abuse its discretion in instructing on theories of "non-liability." These instructions may have been unnecessary, but they were not "prejudicially insufficient, erroneous, inconsistent, or misleading." Id.

And No Error for the Good Samaritan Instructions. The HSC also found no error in instructing the jury that a person in Hawai'i cannot be sued for failing to render aid. See HRS § 663-1.6. The HSC explained that Moyle adduced evidence that the bartenders at Do Re Mi did nothing to help him in the parking lot. Thus, the instructions helped clarify for the jury theories of non-liability and were proper.

Unnecessary, but not Necessarily Erroneous Instructions? It is unclear what the difference between the erroneous inclusion of instructions on foreseeability from the other theories of non-liability. At first, it would appear that the Good Samaritan instructions were proper because Moyle elicited testimony that would confuse the jury on the possible theories of liability. But what about the dram shop instructions? The HSC never indicated that Moyle established evidence pointing toward that theory. The HSC revealed that when it comes to instructing the jury, the circuit court has wide discretion. It is free to instruct the jury on issues that were never raised by the Plaintiff and have no bearing on the claimed action so long as they do not arise to a "prejudicially insufficient, erroneous, inconsistent, or misleading" instruction. Justice Acoba, however, took issue with this. He believed that these instructions were so disconnected that they arose to the level of prejudicially misleading or inconsistency. He would have ordered their omission on remand. It is equally unclear exactly how much the appellate courts will flesh out those instructions that do not address the actual theory of liability presented by the parties and whether they are permissible. Only time will tell.

Mode-of-Operation Rule is Limited to Wal-Mart or Wal-Mart-like Stores. Under the mode-of-operation rule, the plaintiff does not have to show that the defendant had actual notice of the cause of injury so long as the commercial establishment should have been aware that its mode of operation created a potentially hazardous condition. Gump v. Wal-Mart Stores, Inc., 93 Hawai'i 417, 420-21, 5 P.3d 407, 410-11 (2000). Moyle argued that this rule should have been instructed to the jury. The HSC disagreed because the scope of the mode-of-operation rule is limited to situations where the defendant's "marketing strategy" led to the foreseeable risk of danger. Thus, this particular rule is "limited almost entirely" to slip and fall cases in "big box" or "self service" stores like Wal-Mart. In this case, according to the HSC, Do Re Mi did not invite criminals to patronize the bar. The lack of security was not designed or part of Do Re Mi's "marketing strategy" to attract patrons with criminal inclinations.

Other Issues. The HSC also affirmed the ICA's refusal to hear Moyle's evidentiary claim that the circuit court should have admitted various police reports at trial. Furthermore, the HSC took no issue with the circuit court's denial of Moyle's motion for new trial.

When a Tortfeasor is not Joined, it Cannot be Included on the Verdict Form. The HSC held that Tupuola did not belong on the verdict form. Whether non-parties may be included on the verdict form lies within the "sound discretion" of the trial court. Id. at 423, 5 P.3d at 413. The HSC concluded, however, that the trial court's discretion is limited by the Uniform Contribution Among Tortfeasors Act, HRS § 663-11 et seq. Under the UCATA, degrees of fault are determined by pro rata shares only when the issue of fault is litigated between the joint tortfeasors "by pleading in that action." HRS §§ 663-17(c) and 663-12. The HSC held that because Do Re Mi failed to include Tupuola, it was not permitted to have fault determined in pro rata shares and, therefore, it was not within the circuit court's discretion to include Tupuola on the verdict form.

Justice Acoba's Concurrence. Justice Acoba agreed that Tupuola had no place on the verdict form, but not as a matter of law. Justice Acoba believed that because the circuit court denied Do Re Mi's motion to for leave to file a claim against Tupuola and Moyle's reliance on the denial throughout trial, it was an abuse of discretion to reverse itself and place him on the verdict form. According to Justice Acoba, preclusion from the verdict form as a matter of law "deprive[s] the trial courts of their discretion in dealing with varied factual circumstances."

Justice Acoba also took issue with the dram-shop instructions. He believed that they were prejudicially misleading. Dram shop liability is not part of this case. Justice Acoba believed that even if we were to assume that dram shop liability clarified the contours of potential liability, they were nonetheless "so disconnected from [Moyle's] theory of the case and the evidence presented to the jury, that it must be concluded that they were prejudicially misleading." Justice Acoba, therefore, does not see these instructions as merely unnecessary instructions. Interestingly, he did not take issue with the Good Samaritan instructions. Can it be that for Justice Acoba if the party elicited evidence that could confuse the jury on the theory of liability, instructions limiting the theory of liability are proper? Perhaps.

Justice Nakayama's Concurrence and Dissent. Justice Nakayama concurred with the majority on the foresseability instructions, but disagreed with the holding that it was error to include Tupuola on the verdict form. Justice Nakayama believed that the trial court as "complete discretion" in using a special verdict form and its content. See Montalvo v. Lapez, 77 Hawai'i 282, 292, 884 P.2d 345, 355 (1994). It was unclear for Justice Nakayama that the special verdict form was so defective that it warranted reversal. Thus, she believed that it was not reversible error to include Tupuola.

Monday, September 1, 2008

When it Comes to Damages, Jurors rule.

Kato v. Funari (HSC August 25, 2008)

Background. Kato was in a car accident with Funari. Kato sued Funari claiming negligence. After a jury trial, the circuit court granted Kato's motion for directed verdict on the issue of fault. Without objection, the circuit court instructed the jury that any damages awarded were legally caused by Funari's negligence. On the special verdict form there were four questions. The first asked if Funari's negligence legally caused Kato's injuries. The jury answered yes. The second asked for Kato's "total damages." The jury totaled $59,536.55. The third asked if there were any injuries related to a pre-existing condition. Yes, answered the jury. The fourth asked that, if so, what percentage of Kato's injuries came from the pre-existing condition. The jury stated "90%." The circuit court reduced $59,536.55 by 90%. Kato appealed.

Juries are Presumed to Follow Instructions. Determining the proper amount of damages is "within the exclusive province of the jury[.]" Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987). When a special verdict form asks the jury to make special findings and answer specific questions, the circuit court must explain to the jury how the particular law relates to the evidence and ensure that the jury will not be misled. Id. at 384, 742 P.3d at 382-83. Furthermore, "juries are presumed to be reasonable and follow all the trial court's instructions. . . . Therefore, it is not an 'inference' . . . that the jury followed one instruction as opposed to another." Meyers v. South Seas Corp., 76 Hawai'i 161, 165, 871 P.2d 1231, 1235 (1994).

And a Very Strong Presumption at that. The circuit court in this case used the standard jury instruction that the damages awarded must be legally caused by Funari's negligence. See Montalvo v. Lapez, 77 Hawai'i 282, 884 P.2d 345 (1994). It also asked, in the special verdict form, to add up and state the "total damages." The HSC pointed out that the phrase "total damages" is undefined and, as courts on appeal must presume that the jury followed all of its instructions correctly, the "total damages" were the same "damages" legally caused by Funari's negligence. Thus, the "total damages" were presumed apportioned by the pre-existing condition. In other words, the last two questions about a pre-existing condition and apportionment should have never been on the special verdict form.

But is it Irrefutable? The presumption of reasonable jurors following their instructions was not questioned in this case. The HSC, however, never stated that the presumption could be overturned. When Kato tried to get the circuit court to amend the judgment, Funari objected on the grounds that presuming that the jury intended to award $59,536.55 as the "total damages" was illogical. In the end, argument alone did not rebut the presumption. And it begs the question-- what would have happened if Funari presented evidence that the jurors thought the $59,536.55 represented the injuries before apportionment in spite of the contrary instructions and verdict form? Would that be enough to rebut the presumption? For that matter, is it even possible to rebut the presumption at all? These questions lead to a strange place. If it cannot be overcome, then that means the courts will turn a blind eye to what the jury actually did. On the other hand, an irrefutable ensures finality. If evidence can overcome the presumption, then the motion to amend the judgment may follow every jury verdict. We will have to see.

Saving Apportionment. The HSC, in dictum, commented that its holding is not a "blanket prohibition again the inclusion of apportionment questions." However, when the jury has been instructed that the damages awarded are legally caused by the defendant's negligence, then apportionment has no place in the special verdict form. If there must be apportionment questions in the special verdict form, cautioned the HSC, then the jury instructions must be consistent with those questions.

Damages v. Injuries. Or can it be the other way around? Could any change in the language of the special verdict form here be consistent with the standard Montalvo instruction? Perhaps the key lies in the definition of the term "total damages." Had the second question asked the jury to state the "total expenses from injuries" instead of the term of art, "damages," it might have been consistent with the Montalvo instruction. The apportionment instruction is important law to guide the jury in awarding damages. But it is clear that "damages" are not injuries. Only those injuries that can be legally caused constitute a plaintiff's "damages."