Sunday, August 23, 2009

ICA Examines Cumulative Evidence and Expert Testimony

Udac v. Takata Corp. (ICA August 19, 2009)

Background. Udac was driving a 1981 Nissan Pathfinder on the Big Island. The Pathfinder went off the road at around 55 mph, hit lava rocks, and rolled. Udac and his passenger were ejected. Udac was rendered a paraplegic. Udac sued Takata Corp. and Hawaii Motors alleging negligence, product liability, breach of warranties, negligent/intentional infliction of emotional distress, loss of consortium, and punitive damages. Udac contended that the Pathfinder's driver-side seatbelt designed by Takata failed to restrain Udac.

At trial, Udac called Dr. Renfroe, who testified that he examined the seatbelt in the Pathfinder and opined that Udac was wearing it at the time of the accident. He also opined that the marks showed a defect in the seatbelt. Takata called its own expert, Dr. Banks, who did a separate study on seatbelts in Pathfinders. Udac objected on the grounds that it was cumulative of testimony given by Takata's other expert in seatbelts and was outside the scope of Dr. Bank's expertise. The circuit court sustained the objection. The jury found for Udac and awarded $6.85 million in compensatory damages and $12.5 million in punitive damages. Takata appealed.

Cumulative Evidence Depends on Time. "In order for evidence to be considered 'cumulative' for [Hawai'i Rules of Evidence Rule] 403 purposes, it must be substantially the same as other evidence that has already been received." State v. Pulse, 83 Hawai'i 229, 247, 925 P.2d 797, 815 (1996). For example, when the witnesses have observed much of the same thing, but a few different things, it cannot be considered an abuse of discretion in admitting the testimony over a cumulative objection. State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516 (1992). The ICA also looked to federal jurisdictions for their analysis. Evidence is "cumulative" when "it adds very little to the probative force of the other evidence . . . so that if it were admitted its contribution to the determination of truth would be outweighed by its contribution to the length of trial[.]" United States v. Kizeart, 102 F.3d 320, 325 (7th Cir. 1996). According to the ICA, "when determining whether proffered evidence is cumulative, a trial court must weigh how much time it would take to present such evidence relative to the evidence's probative value."

The ICA concluded that Dr. Banks' testimony was not cumulative under HRE Rule 403. Takata's other expert, a seatbelt expert named Cooper, testified to aspects of the seatbelt that was different from Dr. Banks' proffered testimony. The ICA also concluded that there was no evidence in the record "that the circuit court attempted to ascertain how long it would take Dr. Banks to testify about" his study. The ICA held that the circuit court erred in sustaining on cumulative grounds.

Is Cumulative Evidence Always Going to take too much time at Trial? HRE Rule 403 allows the trial court to exclude evidence "if its probative value is substantially outweighed by the danger of . . . waste of time[] or needless presentation of cumulative evidence." The standards in Pulse and the example in Klafta do not seem to be concerned with whether it would take more time out of trial to present the evidence. So isn't the danger of wasted time distinct from the danger of cumulative evidence? For example, a document reflecting testimony can easily be considered "substantially the same as other evidence [like testimonial evidence] that has already been received" ala Pulse even though presenting the document would take very little time at trial. Apparently not. The ICA has incorporated from the federal courts the timing element into the HRE Rule 403 danger of cumulative evidence. The ICA noted that the circuit court failed to examine how much time it would take the proffered evidence to be presented. It seems that the danger of a waste of time has become part of the analysis in the danger of needless cumulative evidence.

Scope of Expert Testimony. The ICA examined the scope of Dr. Banks' qualifications to testify about the bruises and marks on Udac. "[A] witness may qualify as an expert if he or she possess a background in any one of the five areas listed under HRE Rule 702: knowledge, skill, experience, training, or education." Nielsen v. Am. Honda Motor Co., 92 Hawai'i 180, 188, 989 P.2d 264, 272 (App. 1999). "Once the basic requisite qualifications are established, the extent of an expert's knowledge of subject matter goes to the weight rather than the admissibility of the testimony." Estate of Klink ex rel. Klink v. State, 113 Hawai'i 332, 352, 152 P.3d 504,524 (2007).

The ICA held that Dr. Banks was qualified to testify about the results of the tests he took even though he was not a seatbelt expert. Any lack of expertise on that matter goes to the weight of his testimony, not his admissibility. Moreover, Dr. Banks should have been allowed to testify about the marks and bruises on Udac's body. Udac had his own expert testify that the marks and bruises were caused by a defect. According to the ICA, Dr. Banks' report rebutted this testimony. And because Dr. Banks was qualified to testify about his report and its result, it was within the scope of his expertise to touch upon these matters as a rebuttal. According to the ICA, the "[u]se of an expert to comment on or rebut other testimony presented at trial is allowable and expected." See Porter v. Hu, 116 Hawai'i 42, 62, 169 P.3d 994, 1016 (App. 2007).

Other Points. The ICA addressed the admissibility of certain reports offered by Udac, jury instructions on product liability theories, and punitive damages. It is interesting to note that the ICA quickly addressed whether evidence was improperly entered on the grounds that it was cumulative under HRE Rule 403. The ICA concluded that the circuit court did not abuse its discretion in admitting the evidence without mentioning the length of time it took at trial.

Thursday, August 20, 2009

Hindering-Prosecution Prosecution not Hindered by Unlawful Police Conduct

State v. Line (HSC August 11, 2009)

Background. The police caught Dean Line with a crystal methamphetamine pipe and tiny plastic bags. Dean told the police that he would arrange a buy with his dealer. They agreed. Dean went to his house and never came out. The police went to the house to get him, but a woman's voice from the house indicated that he was not home. The police went away. The next day Officer Perreira and Sergeant Kikuchi went back to the house to arrest Dean. Again, a woman's voice told them that he was not home. The police left again.

Two days later, the police returned. They had no warrant for the house. When they pulled up they saw Dean, who ran back into the house. The police chased him to the house in the back. Officer Perreira and Sergeant Kikuchi were not in uniform, but they announced that they were the police, ordered Dean to stop, and flashed their guns, badges, and taser guns. Dean ran into the house through a sliding glass door.

Officer Perreira got to the door, but Line was "brac[ing] herself into the sliding glass door's opening with her hands on the slider and her back against the door frame." She was blocking entry and told the police to "Get the f--- out of here." The police told them that they had to arrest Dean and Line told them to get out and that they needed a search warrant. Sergeant Kikuchi yelled, "police, get out of the way." Line refused to move and Sergeant Kikuchi pushed Officer Perreira through the doorway, who knocked down Line. They went into the house. Line grabbed Sergeant Kikuchi's shirt and yelled at him to get out. They never found Dean. Later, Officer Perreira noticed a scratch on his arm and attributed it to a struggle with Line. Sergeant Kikuchi's shirt was torn.

Line was charged with one count of hindering prosecution in the first degree (HRS § 710-1029(1)) and assault of a law enforcement officer in the 2d degree (HRS § 707-712.6). A jury found Line guilty of hindering prosecution and acquitted her of assault of a law enforcement officer. She appealed and the ICA affirmed.

Hindering Prosecution not Precluded by Unlawful Police Conduct. A person hinders prosecution in the first degree "if, with the intent to hinder the apprehension . . . of another for a class A, B or C felony or murder in any degree, the person renders assistance to the other person." HRS § 710-1029(1). The HSC rejected Line's argument that by standing in the doorway and requesting the plain-clothes officers to show a warrant before going into her home, she was not "render[ing] assistance to the other person." The HSC concluded that the police officers' entry into Line's house was unlawful because no exigent circumstances were present. Mapp v. Ohio, 367 U.S. 643, 659 (1961).

But even though the police unlawfully entered into Line's house, the HSC still applied the hindering prosecution statute against Line. According to the HSC, there are other jurisdictions holding that an illegal search and seizure does not bar convictions for "an unlawful response committed by the person subjected to an illegal police action." See New Jersey v. Casimono, 593 A.2d 827 (N.J. App. 1991); United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971). The HSC also relied on United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978). According to the HSC, the 9th Circuit held that when Ms. Prescott refused to let federal agents enter her home without a warrant, she was "passive" and did not "forcibly resist[] the entry into her apartment." Id. at 1351.

The HSC distinguished Prescott. According to the HSC, Line's "conduct exceeded a mere passive assertion of a right against a warrantless search of her home." Unlike Prescott, Line obstructed the police by placing herself in the sliding glass door opening. She also cussed at the police and "struggled" with Officer Perreira. According to the HSC, Line "did not just passively refuse to open the door to her home; she intentionally used physical force to obstruct the officers." Thus, held the HSC, the hindering prosecution conviction was not barred.

Drawing the Line line. The HSC distinguished Line's case from Prescott because Line was not passively refusing to open the door for the officers. In Prescott, the defendant was charged with hindering prosecution because when the agents came to her apartment she refused to unlock her door. She also lied to the agents when she said that the suspect they were looking for was not in her apartment. She also asked if the police had a warrant, which they did not. Eventually, the police broke down the door. But here, according to the HSC, we have a different situation. Line physically stood in the door opening and refused to allow the police to go inside. She, like Prescott, demanded to see a warrant. But unlike Prescott she "struggled" with one of the officers.

Try this at home! What if there was no struggle? Does it matter that she physically stood in the sliding glass door and did not allow them in? The staff at Hawai'i Legal News experimented. I stood in the doorway onto the lanai at my house and "braced [myself] into the sliding glass door's opening with [my] hands on the slider and [my] back against the door frame." I told an imaginary officer to stay out and asked to see a warrant. Then I imagined the officer being pushed into me and knocking me down. Would that be considered "physical force to obstruct" officers? Where do we draw the line? These questions remain unanswered for the time being and refining the Line line will take time.

Insufficient Evidence for Hindering Prosecution in the First Degree. Although Line could be prosecuted for hindering prosecution in the first degree, it does not mean that there was sufficient evidence for it. Hindering prosecution in the first degree requires the State to prove beyond a reasonable doubt that the defendant was aware that the police were trying to apprehend a person "for a class A, B or C felony[.]" HRS § 702-206. According to the HSC, there was no evidence that Line was aware of any crime committed by Dean. All the record had was that Line was aware the police wanted to arrest him.

But the Lesser-Included Offense is Sufficient. A defendant can be "convicted of an offense included in an offense charged in the indictment or the information." HRS § 701-103(4)(a). An offense is included when it "is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" Id. Unlike hindering prosecution in the first degree, hindering prosecution in the 2d degree requires that the defendant be aware that the police were attempting to apprehend another "for a crime." HRS § 710-1030(1). According to the HSC, the two offenses "differ only in that the first degree offense requires that the 'crime' be a felony or murder" and that hindering prosecution in the 2d degree is a misdemeanor. The HSC held that the misdemeanor is a lesser-included offense and that there was sufficient evidence for it. Thus, the HSC vacated the case and remanded it for entry of judgment of conviction for the lesser-included offense. See State v. Malufau, 80 Hawai'i 126, 136, 906 P.2d 612, 622 (1995); State v. Mattiello, 90 Hawai'i 255, 262, 978 P.2d 693, 700 (1999).

A Procedural Point. On appeal, the State admitted that it was error to not include the lesser-included offense of hindering prosecution in the 2d degree and that the ICA plainly erred in failing to address that point. "[W]here the prosecution admits to error, [the HSC] has stated that, even when the prosecutor concedes error, before a conviction is reversed, it is incumbent on the appellate court to first ascertain . . . that the confession of error is supported by the record and well-founded in law and second to determine that such error is properly preserved and prejudicial." State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000). That is why the HSC addressed the issues.

Sunday, August 16, 2009

Redefining "Original Judgment"

Roxas v. Marcos (HSC August 10, 2009)

Background. In 1971, Roxas found the famed "Yamashita Treasure," a gold bullion buried by Japanese soldiers in the Philippines during World War Two. Ferdinand Marcos' men stole the treasure, arrested Roxas, and tortured him. Roxas transferred his interest in the treasure to the Golden Budha Corporation. In 1988, Roxas and Golden Budha sued Ferdinand for false imprisonment and battery. After Ferdinand died, the parties stipulated to substitute Imelda Marcos, his wife. The jury found against Ferdinand on all counts, but not against Imelda in her personal capacity.

The circuit court entered judgment on August 28, 1996. The judgment was amended on October 21, 1996 and both parties appealed. The HSC reversed and vacated part of the amended judgment in 1998, but "[i]n all other respects, the circuit court's amended judgment is affirmed." Roxas v. Marcos, 89 Hawai'i 91, 157, 969 P.2d 1209, 1275 (1998). On remand, the circuit court entered a 2d amended judgment and ordered the judgment to be entered nunc pro tunc as of October 21, 1996. For various reasons, the circuit court had to enter a 3d amended judgment in 2000 and again entered it nunc pro tunc as of October 21, 1996. The 4th amended judgment was entered on September 6, 2001 and it was entered nunc pro tunc as of October 21, 1996. Roxas' estate (Roxas had been dead already) filed motions to extend the 2d and 4th amended judgments for another ten years. This extension was contested and was the only point on appeal.

What is an "Original Judgment"? Unless extended, judgments and decrees are presumed paid and discharged ten years after the judgment was rendered, but "[n]o extension of a judgment or decree shall be granted unless the extension is sought within ten years of the date of the original judgment or decree was rendered. HRS § 675-5. Furthermore, the court cannot extend a judgment "beyond twenty years from the date of the original judgment or decree." Id. The HSC first turned to the plain language of HRS § 657-5. Carlisle v. One Boat, 119 Hawai'i 245, 256, 195 P.3d 1177, 1188 (2008). According to the HSC, it is unclear what "original judgment" means and when a "term is not statutorily defined, this court may resort to legal or other well accepted dictionaries as one way to determine its ordinary meaning." Gillian v. Gov't Employees Ins. Co., 119 Hawai'i 109, 115, 194 P.3d 1071, 1077 (2008).

The Plain Language Renders an Absurd and Unjust Result and it's Ambiguous. The HSC noted that the plain and literal language of the term "original judgment" meant the first judgment rendered by the court. Unlike the ICA, however, the HSC concluded that the literal application of the statute lead to absurd and unjust results. See State v. Lagat, 97 Hawai'i 492, 499, 40 P.3d 894, 901 (2002). According to the HSC, it would be absurd because the statute of limitations would apply to simply the first judgment, even if that first judgment did not resolve any claims ruled upon by a later judgment. Thus, it would arbitrarily confer more rights on the party who obtained that first judgment than other parties. Moreover, the HSC noted that a "judgment" must be construed as a valid one. That means that when the first judgment has been vacated or reversed, which happened here, it cannot be considered valid and should not be considered the "original judgment."

"Original Judgment" is not the first one, but the first one that Creates Rights and Responsibilities. The HSC rejected the ICA's conclusion that the term "original judgment" was clear and unambiguous. Gillian v. Gov't Employees Ins. Co., 119 Hawai'i at 117, 194 P.3d at 1079 ("statute is ambiguous if it is capable of being understood by reasonably well-informed people in two or more different senses."). When a statute is ambiguous, the court can turn to extrinsic aids, like legislative history and the law may be construed in pari materia. In re Water Application Permits, 94 Hawai'i 97, 144, 9 P.3d 409, 456 (2000).

The HSC examined the legislative history and concluded that the purpose of HRS § 657-5 is to prevent a party from trying to extend a judgment more than 10 years after the judgment was entered. According to the HSC, a judgment is rendered when the parties (1) are aware of their rights and responsibilities created by the judgment and (2) the parties can enforce these rights. This brought it back to the initial problem: what does "original judgment" mean? The HSC held that based on the construction of similar statutes of limitations in HRS chapter 657, the "original judgment" is "the judgment that creates the rights and responsibilities that the moving party is seeking to enforce and extend."

A new Frontier of Problems. Whether a judgment is the "original" one depends entirely on the party seeking the extension under HRS § 657-5. It means that, as the HSC recognized in a footnote, that there can be more than one "original judgment." It also means that an amended judgment may be the "original" one depending on the kind of amendment. When the amendment is "material and substantial" so that it creates the rights that the party wants to extend, the ten-year clock under HRS § 657-5 begins at the time of the amendment because the rights did not exist before it. See, e.g., Poe v. Hawai'i Labor Relations Bd., 98 Hawai'i 416, 418, 49 P.3d 382, 384 (2002).

Nunc pro tunc Orders may be "Original Judgments" too. The HSC held that a judgment entered nunc pro tunc may be the "original judgment" as long as it changed a prior order in a material or substantial way. It does not otherwise change the date of the "original judgment." Rather, if the nunc pro tunc order created rights or responsibilities that were not there before, then it becomes the "original judgment." In this case, the 4th amended judgment added a simple paragraph: "the court expressly determines that there is no just reason for delay and expressly directs for the entry of judgment." This, according to the HSC, is not a material or substantial change, so the "original judgment" for Roxas was the 3d amended judgment.

The circuit court, however, extended 2d amended judgment until October 19, 2019 and the 4th amended judgment to September 5, 2021. The first, according to the HSC, was fine. The other extension, however, was improper. The date the "original judgment" was entered for the 4th amended judgment was on June 26, 2000. A judgment cannot be extended beyond twenty years. HRS § 657-5 and so the circuit court erred in extending the judgment beyond June 25, 2020.