Monday, December 21, 2009

Factual Basis Required Before Triggering the Statutory Duty to Confer

Hui Malama I Na Kupuna O Nei v. Wal-Mart (ICA December 16, 2009)

Background. Wal-Mart bought vacant land off of Ke'eaumoku Street in Honolulu. Before the purchase, numerous studies had been done on the land. All suggested no significant archaeological or historical sites were present. Old maps also showed that there was nothing of archaeological or historical interest. Wal-Mart also conducted a private assessment, which concluded nothing present. Wal-Mart applied for building permits from the City and County of Honolulu. The City checked a computer database check, which included information on properties listed on state and federal national historic registers and locations of known burials and sites provided by the Dept. of Land and Natural Resources. The database check showed that the property had been used for commercial purposes for over fifty years. The City issued the building permits without conferring with the State Historic Preservation Division (SHPD) at all.

Construction of the Wal-Mart revealed 42 sets of human remains. All of them were over fifty years old and it was likely that they were pre-contact Native Hawaiian remains. The remains were classified as inadvertent discoveries of human remains and were relocated and reburied on the property upon recommendation by the Oahu Island Burial Council.

Plaintiffs filed a complaint against the City, among others, seeking injunctive relief to stop the construction of Wal-Mart. Plaintiffs filed a motion for preliminary injunction. The motion was denied and Wal-Mart completed the building. The City filed a motion for summary judgment, which was granted. In its findings of fact, the circuit court found that there was no evidence that the City knew or should have known that the property was a burial site of archaeological interest. Plaintiffs appealed.

A Plain and Unambiguous Statute. The entire case came down to the interpretation of HRS § 6E-42:

Before any agency or officer of the State or its political subdivisions approves of any project involving a permit . . . or other entitlement for use, which may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise [DLNR] and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project[.]

According to the ICA, this statute is plain and unambiguous. It does not require review and comment from SHPD on all proposed projects, but only those "which may affect historic property, aviation artifacts, or a burial site[.]" In doing so, the ICA rejected Plaintiffs' interpretation that called for review for any and all proposed projects. Such an interpretation would render the statutory language starting with "which" and modifying the words "project" and "other entitlement for use"superfluous and nugatory. This would not do because courts "are bound to give effect to all parts of a statute and . . . no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute." Keliipuleole v. Wilson, 85 Hawai'i 217, 221, 941 P.2d 300, 304 (1997).

Policies and Spirit are Irrelevant in the face of Plain and Unambiguous Language. In concluding that HRS § 6E-42 was plain and unambiguous, the ICA did not examine the policy underlying HRS chapter 6E. "The general rule of statutory construction is that policy declarations in statutes, while useful in gleaning the purpose of the statute, are not, of themselves, a substantive part of the law which can limit or expand upon the express terms of the operative statutory provisions." Poe v. Hawaii Labor Relations Bd., 97 Hawai'i 528, 540, 40 P.3d 930, 942 (2002).

Failure to Challenge Finding Lead to No Evidence on Appeal. The ICA also rejected Plaintiffs' claim that the City had to do more than simply check a computer database before approving the permits. The ICA agreed that before approving a permit, the agency must advise and allow the SHPD to review and comment when "there is a factual basis to know or reasonably believe that the proposed project 'may affect historic property, aviation artifacts, or a burial site[.]'" Here, however, Plaintiffs failed to challenge the circuit court's finding that there was no evidence that the City knew or should have known that a burial site was on the property. "If a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid." Wisdom v. Pflueger, 4 Haw. App. 445, 459, 667 P.2d 844, 848 (1983). Moreover, the ICA pointed out that the decision to not submit the project to SHPD was also based on prior studies that showed no archaeological significance.

How much of a "Factual Basis" do you need? HRS § 6E-42 does not require government agencies to confer with SHPD for every single project. The agency only has a duty to confer with SHPD when the project may affect on historic or archaeologically significant sites. How is an agency supposed to know the difference? The ICA made it plain that in order to know the difference between those projects that require submission to the SHPD from those that do not, there must be a factual basis that the agency knew or reasonably believed to have known that the project had some affect. But just how much digging--no pun intended-- an agency has to do is unclear. It is unclear whether a mere search on a computer database is enough because Plaintiffs never challenged a finding of no evidence. That question is left for another day.

Friday, December 18, 2009

You Don't Need a Body to Prove a Murder

State v. Torres (ICA December 15, 2009)


Background. Gallegos worked as a cashier at the Pearl Harbor Navy Exchange. He was last seen leaving his post with Torres, a police officer on the base. Earlier that day, Gallegos was given a bag with $80,000. Later that day, Torres was found by federal law enforcement officers in his car on the base. The searched his car and found $78,000, a revolver, a stun gun, and Gallegos' personal belongings like his wallet and driver's license. Gallegos was never seen again.

At trial, Agent Robbins testified that he recovered Torres' revolver. He testified that the gun had been recently fired, "within the same day, probably about eight hours or so." Agent Robbins based his opinion on the moistness of the powder residue and the absence of any indication of rust on the gun.

Davis also testified at trial. Davis testified that years later she became acquainted with Torres, who had by then moved to California. Davis testified that Torres told her that he did something that "he felt really bad about and didn't know how to deal with it[.]" Davis testified that Torres was involved in a bank robbery back in Hawai'i and that something went wrong. According to Davis, Torres said that Torres thought his "buddy" was reaching for a gun in their getaway car and that he was scared. Davis explained that Torres told her he "took care of it" and gestured with his hand a gun making a clicking noise. Davis testified that Torres put his friend out of commission so that he would not be able to function.

Confessions and the Corpus Delicti. When it comes to proving a crime, the prosecution must establish the corpus delicti--the basic injury, the fact that the injury was the result of a criminal cause "rather than a natural or accidental cause[.]" State v. Hale, 45 Haw. 269, 277 n. 1, 367 P.2d 81, 81 n.1 (1961). The State can use the defendant's confession as proof of the corpus delicti so long as "the trustworthiness of the confession appears to be assured by circumstances shown by . . . independent evidence." State v. Yoshida, 44 Haw. 352, 357, 354 P.2d 986, 990 (1960). The corroborating evidence must "support[] the essential facts admitted sufficiently to justify a jury inference of their truth." Id. at 359, 354 P.2d at 991. The ICA held that Torres' confession was adequately corroborated by independent evidence.

Recovering the body is not Required . The ICA rejected Torres' argument that his motion for acquittal should have been granted. As a matter of first impression, the ICA held that "the recovery of a dead body is not a necessary condition for establishing murder." In a murder prosecution, the State must prove that the defendant "cause[d] the death of another person." HRS § 707-701.5. Moreover, "it is elementary that a criminal case may be proven beyond a reasonable doubt on the basis of reasonable inferences drawn from circumstantial evidence." State v. Murphy, 59 Haw. 1, 19, 575 P.2d 448, 460 (1978). Given the law on circumstantial evidence, the ICA concluded that there is "no reason why a different rule should apply in a murder case[.]"

Search of the Vehicle not in Violation of Federal Constitutional (and only Federal). The ICA held that the search of Torres' car by federal officers on a federal base was not in violation of the federal constitution. But before getting into that, the ICA had a choice of law problem--whether the state or federal constitution applies.

Hawai'i has adopted the exclusionary-rule analysis. State v. Bridges, 83 Hawai'i 187, 925 P.2d 357 (1996). Under that analysis, "the court first identifies the principles to be served by the exclusionary rule and then evaluates how the principles would be served by exclusion." Id. at 194-95, 925 P.2d at 364-65. There are three purposes to the exclusionary rule: (1) judicial integrity, (2) individual privacy, and (3) deterrence. Id.

For the judicial integrity purpose, the "courts should not place their imprimatur on evidence that was illegally obtained by allowing it to be admitted into evidence in a criminal prosecution." Id. at 196, 925 P.2d at 366. Whether evidence was illegally obtained is determined by looking to the laws of the situs state--the place where the evidence was obtained--rather than the forum state--the place of the prosecution. Id. In this case, that would be the federal jurisdiction. The individual privacy purpose is tied to an individual's expectation of privacy, which is based on the laws of the jurisdiction where the evidence was obtained. Id. at 198-99, 925 P.2d at 368-69. Finally, the deterrence purpose is based on the expectation that the suppression of evidence in one case will cause the police to refrain from that kind of violating conduct in the future. Applying the law of the forum state would, therefore, have little deterrence. In light of the three purposes, the ICA concluded that the situs state--the federal jurisdiction--should apply over Hawai'i law.

The Open Question? The ICA was careful to note that in Bridges the Hawai'i Supreme Court left for another day the issue of federal-state interplay: "one could argue that evidence obtained in Hawai'i by federal officers in compliance with federal law )and therefore not illegally obtained) but in violation of some more restrictive aspect of Hawai'i law should be suppressed in criminal prosecutions in Hawai'i state courts." Id. at 199 n. 15, 925 P.2d at 369 n. 15.

In this case, according to the ICA, the open question in Bridges need not be addressed because here we had federal law applying "evidence obtained by federal officers pursuant to the searches of Torres's car on PHNB, a closed military base[.]" Turning to federal law, the ICA held that the search was not unconstitutional. See United States v. Jenkins, 986 F.2d 76 (4th Cir. 1993).

How Narrow is it? The ICA stated that its holding on this issue was "narrow". But can it be distinguished from the Bridges footnote? After all, this is a case where federal officers obtained evidence that was used in a state prosecution. Isn't this just the case contemplated by the Bridges footnote. It should be significant to point out that Bridges involved HPD officers obtaining evidence in California and using that evidence in a Hawai'i court. The evidence was not in Hawai'i at all. What becomes of the Bridges footnote now? Is it still an open question?

Inadmissible Lay Opinion. The ICA agreed with Torres that Agent Robbins was incompetent to testify about the time frame in which the gun had been fired. Opinion testimony can either by lay opinion or expert. For lay opinion to be admissible, the witness has to have personal knowledge that forms the basis of the testimony, the testimony must be rationally based on perception, and the opinion must be helpful to the jury. State v. Jenkins, 93 Hawai'i 87, 105, 997 P.2d 13, 31 (2000); HRE Rule 701. Here, according to the ICA, although the State presented evidence that Agent Robbins was experienced with guns, it did not establish that his time-frame testimony was "rationally based on his perception or his personal knowledge." There was simply no foundation for it. In fact, Agent Robbins testified that he had not conducted any test that could tell a person when the gun was fired and he did not know how to determine the age of gunpowder residue.

Inadmissible Expert too . . . The ICA also held that Agent Robbins failed to qualify as an expert too. Experts must testify when the opinion requires "scientific, technical, or other specialized knowledge[.]" HRE Rule 702; Yoneda v. Tom, 110 Hawai'i 367, 385, 133 P.3d 796, 814 (2006). The ICA held that testimony about the time frame in which a gun had been fired requires specialized knowledge. This is not "a process of reasoning familiar in everyday life." Tennessee v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992). Because it required specialized knowledge, Agent Robbins had to have qualified as an expert to testify about the time frame first. HRE Rule 702. There was no such qualification of his expertise. Thus, it was inadmissible.

. . . and not Harmless Beyond a Reasonable Doubt. According to the ICA, the State relied heavily on Agent Robbins' opinion. It was significant to its theory of the murder and used frequently at closing argument. The ICA held that "there is a reasonable possibility that [the circuit court's error] might have contributed" to the conviction, State v. Kassebeer, 118 Hawai'i 493, 505, 193 P.3d 409, 421 (2008), and, thus, it was not harmless beyond a reasonable doubt.

Other Issues. The ICA rejected the rest of Torres' claims, which included errors relating to the circumstantial evidence jury instruction and the admission of a letter noting the declining of prosecution based on insufficient evidence.

Thursday, December 3, 2009

ICA: Search of an Area that Can Possibly Contain Contraband Still Exceeds Scope

State v. Thornton (ICA December 1, 2009)

Background. HPD stopped a car in Waikiki for an expired motor vehicle tax. Thornton was driving and Gipson was in the passenger's seat. Thornton presented his ID, vehicle registration, and insurance card. The police suspected that the insurance card was fraudulent and called the insurance company. In the meantime, another officer, Officer Pistor, saw what he believed to be a bullet-proof vest underneath Thornton's t-shirt. Thornton agreed to allow the police to search the car and signed a written consent form. The form gave Officer Pistor consent to have the "AUTO & CONTENTS, BAGS" searched for "FIREARMS, AMMUNITION." Thornton and Gipson got out of the car and Officer Pistor started to search the car. Officer Pistor found crystal methamphetamine and a scale. Then he found a black wallet lying flat on the driver's seat. Officer Pistor opened the wallet and four identification cards belonging to other people. Thornton and Gipson were arrested and in a search incident to the arrest, police found some methamphetamine, a pipe, and a plastic straw.

Thornton was charged with promoting a dangerous drug in the third degree, unlawful use of drug paraphernalia, and unauthorized possession of confidential personal information (HRS § 708-839.55). Thornton filed a motion to suppress all the evidence. The motion was denied. The jury acquitted Thornton of the drug offenses, but found him guilty of the unauthorized possession of confidential information offense. Thornton appealed.

The Scope of a Consent to Search Hinges on Reasonableness. Warrantless searches are invalid "unless they fall within narrowly drawn exceptions." State v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985). A search conducted "pursuant to voluntary and uncoerced consent by the person being searched" is such an exception. Id. Under the Fourth Amendment, "[t]he standard for measuring the scope of a suspect's consent . . . is that of 'objective' reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). Moreover, "[w]hen an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass." United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990).

The ICA stated that "[a] search for firearms and ammunition pursuant to consent exceeds the scope of consent when either the characteristics of the area to be searched, or the investigating officer's observations[] do not reasonably suggest the presence of firearms or ammunition." See State v. Younger, 702 A.2d 477, 479-80 (N.J. Sup. Ct. App. Div. 1997); Foster v. State, 646 S.E.2d 302, 306 (Ga. Ct. App. 2007); State v. Huether, 453 N.@.3d 778, 782 (N.D. 1990).

Caches that Could Contain Contraband Doesn't cut it. In this case, the circuit court denied the motion to suppress because the black wallet could have contained a round of ammunition. The ICA agreed that the wallet was capable of containing ammunition, but that was the improper standard. Officer Pistor testified at the hearing on the motion that he felt nothing suggesting there was ammunition inside the wallet and that he was not nervous in handling the potentially loaded wallet. It was clear, according to the ICA, that Officer Pistor's reasonable observations did not suggest the presence of the ammunition. Thus, the search of the wallet exceeded the scope of Thornton's consent.

Two Elements to Determining Scope of Consensual Search. The ICA made it clear that the limits of a consensual search depend on two things: the characteristics of the area being searched and the officer's reasonable beliefs. The police need both in order to be within the scope. The area must reasonably suggest the presence of the item AND the officer's observations must also reasonably suggest the presence. Here, the police had the first one--a wallet can reasonably suggest the presence of ammunition. But the officer's testimony made it clear to the ICA that his observations did not suggest there was anything there. It would make sense that both elements are needed. After all, "[s]peculation or curiosity cannot provide the sole basis to legitimize warrantless searches or seizures." State v. Reed, 70 Haw. 107, 114, 762 P.2d 803, 807 (1988).

Tuesday, December 1, 2009

Blurring the Scope of an Interrogation

State v. Strong (ICA November 25, 2009)

Background. Strong was arrested and taken to the Kalihi police station where he was advised of his constitutional rights using a standard police form. Officer McKee attempted to question Strong about a robbery on March 19, 2006. Strong stated that he understood his constitutional rights, but refused to give a statement. Officer McKee told Officer Kiyotoki about it.

Officer Kiyotoki was the lead investigator for four incidents in which Strong was a suspect. Officer Kiyotoki had Strong fill out an understanding-and-waiver-of-rights form. Officer Kiyotoki wrote on the form that he was only going to discuss one of the offenses. Strong indicated that he understood his rights and agreed to talk about the first incident in February. However, during the course of the interrogation, Officer Kiyotoki and Strong talked about the other incidents. Strong was indicted of several counts ranging from theft in the third degree to robbery in the second degree. The counts stem from five different incidents between February and March 2006. Strong filed a motion to suppress. At the hearing, Officer Kiyotoki admitted that he only put one of the four incidents in the form because writing them all down tends to dissuade suspects from talking. The circuit court granted the motion in part. The State appealed.

"You have the Right to Remain Silent . . ." State and federal constitutions require police officers to warn suspects about their constitutional right to remain silent and have an attorney present when the suspect is (1) in custody and (2) being interrogated. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966); State v. Wallace, 105 Hawai'i 131, 137, 94 P.3d 1275, 1281 (2004). Questioning can then only proceed when the suspect knowingly and intelligently waives those rights. Miranda v. Arizona, 384 U.S. at 445.

Multiple Warnings are not Required in the same Interrogation. The ICA rejected Strong's argument that he did not waive his right against self-incrimination for the incidents that omitted from Officer Kiyotoki's form. "[A] suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment" right. Colorado v. Spring, 479 U.S. 564, 577 (1987). Moreover, "[o]nce Miranda warnings are given, they need not be given again in the same interrogation even if other offenses materialize or become more appropriate." State v. Ramones, 69 Haw. 398, 406, 744 P.2d 514, 518 (1987).

The ICA held that Strong knowingly, intelligently, and voluntarily waived his rights and that Officer Kiyotoki's intentional strategy to avoid other suspected offenses had no bearing on the voluntariness of Strong's waiver because "the use of that strategy is not per se constitutionally impermissible so long as the Miranda warnings are contemporaneously given and knowingly, voluntarily, and intelligently waived." The ICA also noted that there is no authority for "the proposition that the police are required to provide a separate, written, Miranda warning for each specific crime addressed within a single interrogation, particularly when a defendant has been advised of the full scope of the interrogation prior to the beginning of the questioning." The ICA vacated the order suppressing evidence and remanded for further proceedings.

Distinguishing Justices Acoba and Levinson. The ICA also distinguished Justice Acoba's concurrence in State v. Poaipuni, 98 Hawai'i 387, 49 P.3d 353 (2002). In that case, the suspect was in custody when three detectives interviewed him about four different offenses. Id. at 398-99, 49 P.3d at 364-65. None of the cases were going to be about offenses pertaining to firearms. Id. Justices Acoba and Levinson believed that the failure to advise the suspect that the scope of the interrogation would involve the firearms prior to the interrogation violated the suspect's constitutional rights. Id. The ICA distinguished Justice Acoba's concurrence on the grounds that unlike Poaipuni, Strong was advised that he was going to be interrogated about the other incidents before the actual questioning about them began. And so, according to the ICA, even if it did adopt the Poaipuni concurrence, there would still be no constitutional violation.

What does "Prior to Questioning" mean? In order to distinguish Justice Acoba's concurrence, the ICA had to examine what it means to advise prior to an interrogation. In Poaipuni, the police did not advise the suspect about the firearms offenses "prior to the questioning." The ICA explained that in this case, Officer Kiyotoki informed Strong about the different offenses in the middle of the interrogation, but prior to the actual questioning. This, according to the ICA, was not like the police in Poaipuni. It means that as long as there is some kind of advisement--even in the middle of the entire interrogation--there is no Poaipuni violation. Does that mean that if the officers in Poaipuni shifted gears in the middle of their interview and advised the suspect that they were moving onto the firearms offenses, Justices Acoba and Levinson would have found no error? According to the ICA today, the answer is yes.

But what About Coercion? According to the ICA, the subject matter during the interrogation is irrelevant so long as the waiver was voluntary. That would mean that it is up to the suspect to determine the scope of the interrogation--even in this case, where the police officer went ahead and indicated on the form that they would only be talking about a single, particular offense. That strategy, according to the ICA, is not prohibited by the state and federal constitutions. But a coerced statement is. State v. Gella, 92 Hawai'i 135, 143, 988 P.2d 200, 208 (1999). So can the intentional omission of other offenses at the start of the interrogation ever arise to coercion? It would seem so especially since it is up to the suspect to delineate the scope of the interrogation. That distinction was not made here, but it may be made down the line.

Saturday, November 28, 2009

Footing the Bill of Particulars

State v. Corder (HSC November 19, 2009)

Background. The family court granted Allison Corder's extension of a protective order against Lawrence Corder. Months later, Corder was charged with two separate counts of violating the order of protection (HRS §§ 586-5.5 and 586-11(a)(1)(A)). In the complaint the counts referred to police report numbers. Those police reports detailed Corder's conduct and noted the allegedly violated section in order of protection. The police reports were provided in discovery. Corder filed a motion to dismiss or, in the alternative, a bill of particulars. The family court denied the motion and a jury found Corder guilty. The ICA concluded that the trial court erred in denying Corder's motion for a bill of particulars.

Requiring a Bill of Particulars. "If the court is of the opinion that the accused . . . has been actually misled and prejudiced in the accused's defense upon the merits of any defect, imperfection, or omission in the indictment, insufficient to warrant the quashing of the indictment, or by any variance, not fatal, between the allegations and the proof, the [State] shall, when so ordered by the court," file and serve the defendant with a bill of particulars "of the matters in regard to which the court finds that the defendant should be informed." HRS § 806-47; see also Hawai'i Rules of Penal Procedure Rule 7(g). Furthermore, "[a] trial court has the discretion to order a bill of particulars, and it must exercise this discretion in consideration of the purpose of a bill of particulars, which is to help the defendant prepare for trial and prevent unfair surprise." State v. Balanza, 93 Hawai'i 279, 286, 1 P.3d 281, 288 (2000). A bill of particulars is not required when the requested information has been provided in some other way. State v. Reed, 77 Hawai'i 72, 78, 881 P.2d 1218, 1224 (1994).

Discovery Did the Trick. Corder argued that the complaint did not specify the alleged acts in violation of the order of protection and did not specify which section in the order had been violated. The HSC, however, agreed with the State that the discovery provided to Corder included detailed police reports that provided the information Corder needed to prepare for trial: the name of the complainant, the time and location of the incidents, and the underlying conduct that constituted the alleged violation of the protection order.

. . . And the Family Court's Analysis was Sound. The HSC also disagreed with the ICA's conclusion that the family court did not consider whether the bill of particulars were necessary for Corder's trial preparation and to prevent unfair surprise. The family court, according to the HSC, was aware of the purpose of the bill of particulars and was aware of the police reports and that they had been disclosed during discovery. The HSC also noted that the family court anticipated unanimity instructions pursuant to State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996). The HSC further examined the jury instructions and concluded that the family court had complied with Arceo "by instructing the jury on the necessity of reaching a unanimous verdict on the same underlying act." Thus, according to the HSC, the family court did not have to require the State to make an election--be it in a bill of particulars or otherwise--of the specific acts that establish the conduct element.

Justice Acoba's Dissent. "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]" Haw. Const. Art. I, Section 14. Moreover, an indictment or bill of particulars must provide that "the nature and cause of the accusation can be understood by a person of common understanding." HRS § 806-31. Justice Acoba wrote that the complaint here failed to designate the conduct and sections of the order of protection were violated. That meant, according to Justice Acoba, that "the nature and cause of the accusation [could not] be understood by a person of common understanding from a reading of the Complaint itself." State v. Israel, 78 Hawai'i 66, 71, 890 P.2d 303, 308 (1995). As for the reference in the complaint to the police reports, Justice Acoba found this inadequate. Justice Acoba explained that the State is not bound to prove "all matters in the police reports or to adhere to the [protection order] sections as cited by the police officers[.]" Thus, the complaint did not fairly permit Corder to prepare for trial and was defective.

Justice Acoba further believed that even if the complaint was sufficient, a bill of particulars should been granted. Justice Acoba acknowledged that a bill of particulars is not required if some "other satisfactory form" has been provided. In this case, however, Justice Acoba believed that there was no way for Corder to adequately prepare for trial. A bill of particulars, he wrote, would have clarified "the conduct covered by the charges and would avoid prejudice." "[I]t is fairer to require a bill of particulars to be filed rather than to leave a defendant uncertain as to the particular conduct he or she is alleged to have committed until trial, and it is more efficient to grant a bill of particulars to avoid appeals regarding questions of the kind raised in this case." Chief Justice Moon joined.

Police v. Prosecutor. This case highlights the difference between a charge from the prosecution--in the form of an indictment, complaint, or information--and the allegations made by police officers. The majority's position was that the complaint in this case made reference to police reports that adequately covered the information underlying the charged offenses. These same police reports were provided to the defendant during discovery. This meant that the complaint was not deficient and that a bill of particulars was not required. Justice Acoba and Chief Justice Moon, however, took the position that a complaint referencing police reports is not enough. The dissent correctly points out that the prosecution is not bound to the allegations in a police report. This is because the prosecution, and only the prosecution, can bring formal charges against a defendant. The police investigate alleged offenses and report what they think should be the proper charge. Justice Acoba and the Chief Justice believe that it is a far fairer thing to specifically allege the instances from the prosecuting attorney--the sole party that has the authority to bring formal charges against a person--than to guess from the police reports what conduct will constitute the underlying offense. On the other hand, the majority recognizes that in almost all cases the offenses suspected in police reports is the underlying offense charged by the prosecution.

Tuesday, November 24, 2009

The Hidden Element in OUI

State v. Wheeler (HSC November 17, 2009)

Background. Wheeler was charged with operating a vehicle under the influence of an intoxicant (HRS § 291E-61(a)(1)). The State's charges went like this:

"on or about May 31st, 2001, in the City and County of Honolulu, State of Hawaii, [Wheeler] did operate or assume actual physical control of a motor vehicle while under the influence of alcohol in amounts sufficient to impair [his] normal mental faculties and [his] ability to care for [him]self and guard against casualty[.]"

Wheeler indicated that he did not understand the charge because the term "operate" was a term of art. The State refused to clarify the charge. Wheeler moved to dismiss on the grounds that the charge failed to state an offense. The motion was denied. Wheeler lost at trial. The ICA vacated and remanded. The State appealed.

The Elements of the DUI Statute Include Where the Conduct took Place. The elements of an offense include conduct, attendant circumstances, and the results of that conduct. HRS § 701-205. "Conduct" means "an act or omission[.]" HRS § 701-118(4). An "act" is "bodily movement whether voluntary or involuntary." HRS § 701-118(2). "Attendant circumstances" are circumstances "that exist independently of the [actor's conduct]." State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005).

The DUI statute requires a person to "operate[]" or "assume[] actual physical control of a vehicle." HRS §291E-61(a). To "operate" means "to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway." HRS § 291E-1. According to the HSC, the act driving or assuming actual physical control of a vehicle is the conduct element of the DUI statute. The HSC then held that this conduct element comes with the attendant circumstance that the conduct occur "upon a public way, street, road, or highway." Thus, the location of the conduct--upon a public way, street, road, or highway--is an essential element of the DUI statute.

A "Potential Ambiguity" Rejected. The HSC acknowledged that the words "assumes physical control of a vehicle" appeared both in the definition of "operate" and in HRS § 291E-61(a) itself. It recognized that the statute could be interpreted so that a person commits the offense if he or she either "operates" a vehicle (thereby driving or assuming physical control of a vehicle on a public way, etc.) or "assumes physical control of a vehicle" no matter where you are. The HSC, nonetheless, rejected this interpretation because such an interpretation would render the words "assumes actual physical control" within the definition of "operate" a nullity, "which is an outcome we must avoid." See Potter v. Hawai'i Newspaper Agency, 89 Hawai'i 411, 422, 974 P.2d 51, 62-63 (1999). Moreover, the requirement that the attendant circumstance of the conduct--be it driving or assuming physical control--be in public is consistent with the legislative history and the rule of lenity. State v. Shimabukuro, 100 Hawai'i 324, 327, 60 P.3d 274, 277 (2002).

Another "Potential Ambiguity"? The rejection of the "potential ambiguity" in the DUI statute is not unlike the prohibitions-involving-minors offense. "No minor shall consume or purchase liquor and no minor shall consume or have liquor in the minor's possession or custody in any public place" etc. HRS § 281-101.5(b). The conduct element appears to be consuming or purchasing of liquor as well as the consuming or possessing of liquor. It also appears to have the attendant circumstance element of the act occurring "in any public place" for at least the consumption and possession of liquor. Applying this case to this statute, it would seem that there is another "potential ambiguity" between the two words "consume." It would imply that consumption has to take place in public in order to prevent one of the "consumes" from becoming a nullity. The rule of lenity would certainly think so.

Tracking the Statutory Language is not Enough. "It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged." State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996). Generally when "the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977). But "where the definition of an offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species . . . [and] descend into particulars." State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995).

The HSC made it clear that the charge must allege the elements of the offense, not necessarily the language of the statute. Here, the State failed to allege that Wheeler operated or assumed physical control of a vehicle on a public way, street, road, or highway. The HSC explained that it was not enough to simply state that Wheeler "operated" because the statutory term "operate" contains a very specific location and is a term of art. This, according to the HSC, went beyond the common understanding of the word "operate."

No Notice of the Element Either. The HSC rejected the State's argument that Wheeler had sufficient notice of the attendant circumstance element. According to the HSC, the charge did not indicate where the alleged conduct took place other than within the City and County of Honolulu. The HSC also rejected the State's claim that Wheeler had notice because his license had been revoked by the Administrative Driver's License Revocation Office (ADLRO), a process which requires proof of operating a vehicle while under the influence.

Appellate Courts can look at all Information Available up until time of the Objection. Generally, in determining whether a defendant has been adequately informed of the charges, the appellate court may consider other information in addition to the charge that may have been provided to the defendant up until the time defendant objected to the sufficiency of the charges. See State v. Sprattling, 99 Hawai'i 312, 318-19, 55 P.3d 276, 282-83 (2002); State v. Treat, 67 Haw. 119, 680 P.2d 150 (1984). In this case, the HSC held that Wheeler immediately objected to the sufficiency of the State's charge and that meant that it could "only consider information supplied to Wheeler priuor to his timely, pre-trial objection[.]" Under that analysis, the record does not establish that Wheeler was fully informed of the nature and cause of the accusation against him--regardless of the ADLRO proceedings.

Don't get too Excited. The HSC affirmed the ICA's conclusion that this particular element needed to be pleaded in the complaint. The remedy provided by the ICA was vacating the judgment of conviction and remanding with instructions to dismiss without prejudice. So in the end it means that the State can always fix its pleadings and start the whole thing all over again.

Saturday, November 21, 2009

Conferences with Standby Counsel, Written Transcripts, and Other Rights

State v. Mundon (HSC November 13, 2009)

Background. Mundon was charged with several counts of sex assault in various degrees, kidnapping, terroristic threatening, and assault. Mundon requested to represent himself at trial and requested appointed standby counsel. The circuit court granted those requests. At trial, the complainant that she encountered Mundon one night at Kapa'a Beach. She testified that she was looking for a cheap hotel room. Mundon allowed her to sleep in the back of his truck. As she slept, Mundon began to putting his hands under her underwear and feeling her outer labia. She also testified that he started to kiss and touch her breasts approximately ten to fifteen times. When she tried to get away, Mundon produced a knife and threatened to kill her if she tried to get away. A struggle ensued on the beach and eventually she got away. Testimony from police officers corroborated the complainant's version. Mundon testified and his version of events is significantly different.

The jury found Mundon guilty of one count of attempted sex assault in the first; one count of terroristic threatening in the first; one count of kidnapping; one count of assault in the third degree; and the lesser-included offense of attempted assault in the second degree. Mundon was acquitted of all remaining charges. The circuit court sentenced Mundon for the offenses, some of which were consecutive.

Unanimity Instructions and when you Need them . "[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, [sections] 5 and 14 of the Hawai'i Constitution." State v. Arceo, 84 Hawai'i 1, 30, 928 P.2d 843, 872 (1996). When separate and distinct culpable acts are within a single count of sexual assault, "the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the 'conduct' element . . . or (2) the trial court gives the jury a specific unanimity instruction[.]" Id. at 32-33, 928 P.2d at 874-75. The requirement of unanimity instructions applies to other offenses too. State v. Valentine, 93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000).

Absent an election by the prosecution a unanimity instruction is required when "(1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that only one offense was committed." State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008). But the unanimity instruction is not required when the offense does not preclude it from being proved as a continuous offense and the prosecution alleges, adduces evidence of, and argues that the defendant's action "constituted a continuous course of conduct." State v. Apao, 95 Hawai'i 440, 447, 24 P.3d 32, 39 (2001).

. . . Not Required for Kidnapping. The HSC first rejected Mundon's argument that a unanimity instruction was required for the kidnapping offense. Kidnapping arises when "the person intentionally or knowingly restrains another person with the intent to . . . [i]nflict bodily injury upon that person or subject that person to a sexual offense[.]" HRS § 707-720(1)(d). According to the HSC, nothing in the kidnapping statute prevents the prosecution from proving that the restraint was "accomplished by a series of acts constituting a continuing course of conduct" and that the prosecution alleged, adduced evidence of, and argued that the defendant's actions were a continuous course of conduct.

. . . But Required for the Attempted Sex Assault in the First. As for the attempted sexual assault in the first degree, the HSC held that the unanimity instruction should have been given. Unlike the kidnapping offense, sexual assault in the first degree cannot be proven with continuous conduct. State v. Arceo, 84 Hawai'i at 21-22, 928 P.2d at 863-64. So even if the prosecution argued that it was a continuing course of conduct, the multiple attempts to penetrate the complainant cannot be a continuing course of conduct, but are separate and distinct acts. It was, according to the HSC, plain error for the trial court to not instruct the jury that they must unanimous in determining the particular conduct for the attempted sexual assault.

. . . And also Required for the Terroristic Threatening. The State argued to the jury that there were "two huge instances" where Mundon threatened the complainant. Mundon was charged with two counts of terroristic threatening in the first degree, but the jury found him guilty of only one. The HSC relied on a line of federal cases. "When it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice" and "the jurors must agree to a particular set of facts." United States v. Echeverry, 719 F.2d 974, 974-75 (9th Cir. 1983). The HSC pointed out that Mundon was charged and tried for two counts of terroristic threatening, but the jury only found him guilty of one count. According to the HSC, there was a genuine possibility that the different jurors agreed to a different set of facts.

A Particular kind of Remedy for the TT1. Double jeopardy protects people from a second prosecution for the same offense after acquittal and a second prosecution for the same offense after a conviction. State v. Higa, 79 Hawai'i 1, 5, 897 P.2d 928, 932 (1995). The HSC concluded that because there was no way to know which specific act served as the basis for the single TT1 conviction, it is possible that a vacation and remand of this offense would be a retrial for an offense of which Mundon had been acquitted. As a result, the HSC reversed the terroristic threatening in the first degree conviction.

Defendant Needn't show Particularized Reason in Exercising the Right to Transcripts of Prior Proceedings for Trial and Appeal. One of Mundon's pretrial motions was a request for written transcripts of prior proceedings. The circuit court denied the request. The ICA concluded that the transcripts should have been provided, but that error was harmless beyond a reasonable doubt.

A criminal defendant has a right to transcripts of prior proceedings. Britt v. North Carolina, 404 U.S. 226, 227 (1971). In Britt, the Supreme Court of the United States examined whether an indigent defendant was entitled to written transcripts even though there was no showing of a specific need for them. Id. Two factors are relevant in resolving this issue: (1) the value of the transcript to the defendant in connection with the appeal or trial" and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

The HSC pointed out that the Britt court held that there is never a need for the defendant to show a specific need for transcripts. They have an "innate value." Id. at 228. The HSC then examined "the availability of alternative devices that would fulfill the same functions as a transcript." Here, Mundon was provided with electronic versions of the transcript, but it was clear from the record that he did not have the means to access those electronic versions until the first day of trial. That meant that Mundon could only review the transcripts during breaks in the trial itself. This, according to the HSC, was not an adequate alternative device. It was not harmless error.

No Access to Trial Materials . . . The State filed various pretrial motions in limine. Four days prior to trial at the hearing on these motions, Mundon informed the circuit court that it could not adequately respond to the motions because his trial materials were left behind on Oahu (the trial was held in Kauai). On appeal, Mundon argued that due process required him access to his trial materials.

Due process "is flexible and calls for such procedural protections as the particular situation demands. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner." State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002).

The HSC noted that in California, the pro se criminal defendant has a constitutional right to adequate time to prepare his or her defense. People v. Maddox, 433 P.2d 163, 168 (Cal. 1967). Moreover, the denial of "a proper request for a continuance to prepare a defense" is a denial of due process. People v. Cruz, 83 Cal. App. 3d 308, 325 (Cal. App. 1978). In this case, Mundon was unexpectedly transported from Halawa on Oahu to the jail on Kauai without his trial materials. The transfer was completely out of his control. The trial court could have continued the trial in order for Mundon to consult his materials. The HSC held that the denial of access to his trial materials constituted a violation of his due process rights.

Getting Around the Abuse-of-Discretion Standard? In a footnote, the HSC pointed out that the ICA erred in applying the standard of review. The ICA applied the abuse-of-discretion standard of review and concluded that there was no such abuse. The abuse of discretion standard defers to the lower court or tribunal. The HSC, however, noted that Mundon asserted a violation of his constitutional rights--which is reviewed de novo. Normally, the denial of a continuance is reviewed for an abuse of a discretion. However, since the denial of a continuance--as argued by Mundon--was characterized as a violation of his due process rights, the HSC reviewed the issue de novo and did not defer to the lower court.

A Right to Standby Counsel. Mundon was cross-examined by the State. During a routine break in the trial, Mundon wanted to speak to his standby counsel. Under the federal constitution, a court's order prohibiting a criminal defendant from conferring with his or her standby counsel during an overnight break violates the Sixth Amendment. Geders v. United States, 425 U.S. 80, 91 (1976). However, in Perry v. Leeke, 488 U.S. 272 (1989), the defendant argued that the trial court's order barring him from conferring with standby counsel during a 15-minute break violated the Sixth Amendment. The SCOTUS distinguished Geders and held that the federal constitution "does not compel every trial judge to allow the defendant to consult with his [or her] lawyer while his [or her] testimony is in progress merely because the judge decides to call a recess during the trial for a few minutes." Perry, 488 U.S. at 284-85. The Perry court emphasized the need for preserving the truth-seeking function at trial and explained that the defendant does not have a right to "regroup and regain a poise and sense of strategy" not available to other witnesses. Id. at 282-83.

Justice Thurgood Marshall dissented in Perry. He was joined by Justices Brennan and Blackmun. The dissent saw no distinction and noted that conferring with counsel "enhances the discovery of truth because it better enables the defendant to put the [prosecution] to its proof." Id. at 291 (emphasis in original). Justice Marshall wrote that "the Sixth Amendment forbids any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial." Id. at 285-86 (emphasis in original).

The HSC held that under the federal constitution, Mundon is in the same situation as Perry and, thus, the Sixth Amendment was not violated by the circuit court's order prohibiting him from conferring with standby counsel.

The Hawai'i Constitution, However, is a Different Matter. The Hawai'i Supreme Court is the "ultimate judicial tribunal with the final, unreviewable authority to interpret and enforce the Hawai'i Constitution" and is "free to give broader protection under the Hawai'i Constitution than that given by the federal constitution." State v. Arceo, 84 Hawai'i at 28, 928 P.2d at 870. HSC adopted Justice Marshall's formulation that "any order barring communication between a defendant and his [or her] attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial," violates the defendant's state constitutional right to counsel. Thus, the HSC held that the circuit court's order prohibiting conference with counsel during the routine break violated the Hawai'i Constitution. Nonetheless, the HSC held that the error was harmless beyond a reasonable doubt because there was no reasonable possibility that the error contributed to the conviction. State v. Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1230 (1996).

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the result, but disagreed on the majority's analysis on the circuit court's order prohibiting conference with standby counsel. In sum, Justice Acoba believed that the circuit court's order violated Mundon's right to counsel, the attorney-client privilege, and Mundon's right against self-incrimination. Justice Duffy joined.

Other Issues. The HSC held that Mundon's right to speedy trial was not violated when more time was permitted to accommodate the withdrawal of one standby counsel and the appointment of another. The HSC also rejected Mundon's contention that the consecutive sentencing violated his right to a jury trial ala Apprendi v. New Jersey, 530 U.S. 466 (2000).

Thursday, November 12, 2009

Abuse of Incompetent Persons Statute Not Unconstitutional

State v. Billam-Walker (ICA August 11, 2009)

Background. Walker was charged with endangering the welfare of an incompetent person. HRS § 709-905. This was initially a summary disposition order. The ICA granted the state's motion for publication. The ICA presented no background facts.

No Abuse of Discretion in Denying Continuance. The ICA rejected Walker's argument that the family court erred in denying his motion to continue trial. "An attorney cannot reasonably expect a court to alter its calendar, and disrupt a scheduled trial to which witnesses have been subpoenaed and to which the adverse party is ready, simply by the filing by counsel of a last minute motion for continuance." State v. Lee, 9 Haw. App. 600, 603-04, 856 P.2d 1279, 1281-82 (1993). Here, the ICA noted that the motion for continuance was requested one week prior to trial. According to the ICA, the defense had adequate time and resources to prepare for trial. The ICA also noted that there was no abuse of discretion because even if certain defense witnesses were not available, those particular witnesses had no "direct bearing on the issue of guilt." See State v. Lee, 9 Haw. App. at 605, 856 P.2d at 1282 (denied continuance not error because testimonies went to complaintant's credibility).

Sufficient Evidence to Support Conviction. In a prosecution for endangering the welfare of an incompetent person, the State must prove beyond a reasonable doubt that the defendant knowingly acted in a way "likely to be injurious to the physical or mental welfare of a person who is unable to care for himself [or herself] because of physical or mental disease, disorder, or defect." HRS § 709-905. The ICA noted that at trial, the State presented expert testimony that the complaintant was unable to care for himself because of permanent mental disabilities and severely limited communication skills. There was further testimony that Walker was aware of the complaintant's disabilities. There was also evidence that Walker grabbed the complaintant and yelled at him. According to the ICA this, viewed in the light most favorable to the State, was sufficient evidence.

Statute not Unconstitutionally Vague. HRS § 709-905 requires conduct that is "likely to be injurious" to an incompetent person. The ICA rejected Walker's argument that this language from HRS § 709-905 is unconstitutionally vague and overbroad. The ICA first held that the statute is not vague because the statute "is reasonable clear and provides sufficient notice to a person of ordinary intelligence that knowingly engaging in conduct that would probably cause harm to an incompetent person's welfare is prohibited." The ICA then held that the statute is not overbroad. It patently rejected Walker's contention that the statute prohibits caregivers from scolding, lecturing, or "verbally redirecting an incompetent person[.]" According to the ICA, HRS § 709-905 requires the defendant to knowingly engage in conduct that would likely cause harm to the incompetent's welfare, "which is the antithesis of an intentional act that may injure but is performed in the [incompetent's] best interest." State v. McKee, 392 N.W.2d 493, 495 (Iowa 1986).

The Caregiver Defense? HRS § 709-905 requires that the defendant knowingly engage in conduct which is likely to be injurious. The ICA--in holding that the statute is not unconstitutionally overbroad--held that the mens rea element distinguishes criminal conduct from a caretaker's conduct that is intended to be for the purpose of providing care. But does the plain language of the statute recognize this distinction? The statute criminalizes conduct that the person knows is "likely to be injurious." Does this mean that when the caregiver engages in conduct that is likely to be injurious, but does so for the purpose of treating a patient, it is not within the ambit of the statute? In other words, is it a defense to show that the conduct was performed in the incompetent's best interest? Perhaps.

Nexus for Probation Conditions met here. The sentencing court may impose conditions of probation at its discretion. HRS § 706-624(2). "In order for there to be a rational exercise of discretion some factual basis for imposing such probationary conditions must inhere in the record." State v. Kahawai, 103 Hawai'i 462, 466, 83 P.3d 725, 729 (2004). According to the ICA, Walker was charged and convicted of endangering the welfare of an incompetent person. The family court imposed as a condition of his probation that he attend domestic violence classes. The ICA held that "the family court had the discretion to sentence Walker to whatever 'correctional treatment' the court deemed most effective" and that it was not an abuse of that discretion to order domestic violence classes.

Other Issues. The ICA affirmed the conviction. It found no merit in Walker's claims of the improper admission of evidence, prosecutorial misconduct, and erroneous jury instructions.

Judge Leonard's Concurrence. Judge Leonard concurred in the result and did not file a separate opinion.