Wednesday, September 16, 2009

District Court Abused Discretion in Limiting Criminal Defendant's Evidence at Trial.

State v. Inman (ICA September 15, 2009)

Background. Inman was charged with several counts of violating an injunction against harassment (HRS § 604-10.5). An injunction was imposed against Inman. He was not permitted to contact or threaten Klein. The charges allege that Inman made various phone calls, glared, lunged, and made an obscene gesture at Klein. Inman failed to timely file a witness list and moved the district court for leave to file a witness list. Inman proffered three witnesses: Gifford, his fiancĂ© who would testify that he was at another place when one of the incidents took place, Parks, who would testify that she never saw Inman lunge at Klein, and Padamada, who would testify that he never saw Inman drive by and make the obscene gesture.

Over the State's objection, the district court ruled that Gifford, as an alibi witness, would allowed to testify, and that Parks and Padamada would be allowed to testify only if Inman submitted a witness list including their names, addresses, phone numbers, and birth dates. Inman submitted a list, but did not include Padamada's birth date and phone number. The State argued that because Inman failed to strictly comply, all three witnesses should be excluded from testifying. The district court ruled that Parks and Padamada could not testify and that Gifford could only testify about a particular incident and not others. After a bench trial, Inman was found guilty of all but one count.

Discovery Sanctions Based on Four Factors. In misdemeanor prosecutions, the trial court has the discretion to require discovery provided in Hawai'i Rules of Penal Procedure Rule 16. HRPP Rule 16(d). According to the ICA, the district court's preclusion of Inman's witnesses was a discovery sanction for its failure to comply with the pretrial conference order. "[T]he imposition of sanctions should not encroach on a fair trial. In particular, the exclusion of defense evidence in criminal cases as a means of sanction is a drastic measure for the right of a defendant to adduce evidence in his [or her] behalf is one of the fundamental inherent in the due process guarantee of a fair trial." State v. Ahlo, 79 Hawai'i 385, 399, 903 P.2d 690, 704 (App. 1995). In fashioning discovery sanctions under HRPP Rule 16, the trial court must consider these factors: (1) whether the defendant acted maliciously or in bad faith; (2) the extent of prejudice to the prosecution caused by the violation; (3) whether the prejudice could have been cured by less severe measures than the exclusion of evidence; and (4) any other relevant circumstances. Id. at 400, 903 P.2d at 705.

District Court Abused Discretion in Imposing Severe Discovery Sanctions on Defendant. The ICA held that the district court abused its discretion in precluding testimony of Parks and Padamada. The sanctions were based on Inman's failure to include Padamada's birth date. According to the ICA, there was no evidence that Inman acted maliciously or in bad faith and, "more importantly," there is no evidence that the State suffered any prejudice.

Other Available Sanctions. The ICA noted that there were other appropriate sanctions available to the district court. "Willful violation by counsel of an applicable discovery rule or an order" allowed the district court to order money payments, refer the attorney to disciplinary action, or use its contempt power. HRPP Rule 16(e)(9)(ii); State v. Fukusaku, 85 Hawai'i 462, 492, 946 P.2d 32, 62 (1997); State v. Dowsett, 10 Haw. App. 491, 499-500, 878 P.2d 739, 743-44 (1994).

Not Harmless Beyond a Reasonable Doubt. According to the ICA, evidence of Inman's guilt was "not overwhelming" and there was "conflicting evidence" at trial. The testimonies of Parks and Padamada certainly could have changed the outcome of Iman's trial. And so, the errors were not harmless beyond a reasonable doubt. State v. Vinuya, 96 Hawai'i 472, 481, 32 P.3d 116, 125 (App. 2001).

Sanction Powers v. Defendant's Right to Present Evidence. In this case, and in Ahlo, the ICA reviewed the discretion of the trial court and looked to four factors in determining if there was an abuse of discretion. There seemed to be little deference here. Would the same analysis apply if the State has violated discovery orders? Maybe. The Ahlo factors are not unique to violations by the defendant. They could just as easily apply to the State. Did the State act in bad faith? Did the Defendant suffer prejudice? Are there less severe sanctions available? What are the other circumstances? And besides, if there was a different analysis, what would it look like?

On the other hand, both this case and Ahlo emphasize the due process guarantee of a fair trial. A person's right to present evidence in his or her defense should not be easily curtailed with discovery violations. That may call for a less-stringent application of the factors when the State violates discovery rules and orders. In other words, there should be more deference to the trial court's exclusion of State's evidence. The due process concerns in such a case are out of the equation when the State violates a discovery rule or court order.

Saturday, September 12, 2009

Nexus to Loss Necessary Before Imposing Restitution

State v. Domingo (ICA September 11, 2009)

Background. Domingo was indicted for one count of Accidents Involving Death or Serious Bodily Injury (HRS § 291C-12); specifically, that Domingo failed to stop his car at the scene of the accident and breached his duty to remain on the scene pursuant to HRS § 291C-14. Domingo and Tomlin were driving in separate cars on the H-1 freeway. Tomlin crossed his line and sideswiped Domingo, which caused both cars to crash into the guard rail. Tomlin's car flipped on its side and Tomlin died. Domingo's car flipped onto its roof. Domingo got out of the car, walked to the side of the freeway, and took off into the bushes. Approximately 30 minutes later, he returned to the scene.

Domingo pleaded no contest and moved for a deferred acceptance of no contest plea, which was not opposed. The circuit court sentenced Domingo to five years probation and denied the motion for DANC. The circuit court ordered restitution in the amount of $13,225.94 in restitution, which included funeral expenses, a gravestone, and ambulance fee, as requested by Mrs. Tomlin.

Criminal Conduct must have Nexus to Victim's Losses in Order to Impose Restitution. The ICA agreed with Domingo that the circuit court erred in imposing restitution. "The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim . . . as a result of the defendant's offense[.]" HRS § 706-646(2). According to the ICA, the restitution statute plainly states "a defendant cannot be ordered to pay restitution unless he [or she] caused a victim's losses." In this case, the criminal conduct was not linked to the amount requested by Mrs. Tomlin. Criminal liability for HRS § 291C-12(a) "does not require proof that the driver of a vehicle caused injury to or death of a person, but only that the accident the driver was involved in resulted in injury to or death of any person." State v. Chen, 77 Hawai'i 329, 226, 884 P.2d 392, 399 (1994). The ICA concluded that there was "no evidence in the record that Domingo's criminal misconduct caused Tomlin's injuries or death. . . . No nexus between Domingo's conduct and Tomlin's injuries and death has been demonstrated." The ICA reversed the restitution order.

The "Criminal Misconduct" v. just Plain 'Ol Conduct: a Hypothetical. In this case, the ICA held that there was no nexus between Domingo's conduct and the "victim's" injuries and death. Here, it was apparent that Tomlin caused the collision with Domingo, which resulted in his own death. But what if Domingo had caused the accident? That would provide a nexus between Domingo's conduct and the loss (the death). So would it mean that he would have to pay restitution? Perhaps not. The defendant must make restitution only for losses suffered "as a result of the defendant's offense[.]" HRS § 706-646(2). What is an "offense"? The statute never elaborates on the term so now it seems that for this question, the statute isn't so plain. One hint may lie in the ICA's opinion today. The ICA described a necessary nexus between Domingo's "criminal misconduct" and the loss. This could imply that an "offense" under HRS § 706-646(2) is the criminal conduct, i.e. the conduct element of the offense itself.

And if that is so, then even if Domingo did cause the accident resulting in Tomlin's death, he would still not have to pay restitution. He was charged with fleeing the scene of an accident in which a person died, The criminal conduct in that particular crime is the flight and dereliction of duty to stay and render aid, not the attendant circumstance of the death. But this distinction needn't be made here. Perhaps later.

Tuesday, September 1, 2009

Four Instances of Prosecutorial Misconduct

State v. Suan (ICA August 26, 2009)

Background. Suan was charged with unauthorized control of a propelled vehicle (HRS § 708-836). At trial, the woman whose car was stolen and two police officers testified against Suan. Suan called two alibi witnesses and he himself testified. At closing, the prosecutor made several comments without objection.

Bolstering Witnesses was Prosecutorial Misconduct. "Prosecutors are bound to refrain from expressing their personal views as to a defendant's guilt or credibility of witnesses." State v. Sanchez, 82 Hawai'i 517, 534, 923 P.2d 934, 951 (App. 1996). During her closing argument, the prosecutor told the jury that the officers who testified against Suan "have integrity" and that "their testimony really is a testament to the fact that the system does work. They were telling the truth. They have integrity. They could have come in here no reports, told you anything. They didn't." The ICA held her comment was improper because even though she did not refer to herself, she nonetheless expressed her personal view of the police officers' credibility.

Shifting the Burden to the Defendant to Show an Alibi was Prosecutorial Misconduct. At closing "the prosecution may invoke the adverse inference against the defendant for his [or her] failure to call a witness when it would be natural under the circumstances for the defendant to call that witness and when the comments do not suggest to the jury that it was the defendant's burden to produce proof by explaining the absence of witnesses or evidence." State v. Mainaaupo, 117 Hawai'i 235, 257, 178 P.3d 1, 23 (2008). Here, the prosecutor told the jury that "[w]hen you are bringing up an alibi defense, it's highly likely you're going to bring everybody and their brother's mother's neighbor to say yes, I was someplace else." The ICA held that this comment was improper because it "suggested to the jury that it was Suan's burden to explain the absence of witnesses." The ICA also noted that it was not "natural under the circumstances" for Suan to call the people mentioned by the prosecutor.

Injection of Personal Views was Prosecutorial Misconduct. Prosecutors cannot suggest to the jury that the State would have never brought the case if the defendant was not guilty. State v. Morris, 72 Haw. 527, 529, 825 P.2d 1051, 1052 (1992); State v. Palisbo, 93 Hawai'i 344, 360, 3 P.3d 510, 526 (App. 2000) (statement "We do not prosecute innocent people" was "obviously improper"). Here, the prosecutor told the jurors that the "purpose of the State today in this case is not to convict an innocent person." According to the ICA, this statement may not have referred to the prosecutor directly, but it certainly had the "effect of the telling the jury that the Prosecutor would not have prosecuted the case unless Suan was guilty." The ICA held that her statement was improper and that the circuit court plainly erred in allowing the statement.

Diverting the Jury from its duty to Decide the case Based on Evidence was Prosecutorial Misconduct. The prosecutor told the jury that "[r]esources, time, and dollars of the taxpares are spent to seek justice in this case for" the complaining witness. The ICA, citing State v. Sanchez and the ABA Standards for Criminal Justice, The Prosecution Function, Standard 3-5.8(d), held that this statement was improper because "it injected issues broader than Suan's guilt or innocence under the controlling law into the case and, in effect, diverted the jury from its duty to decide the case based on evidence."

The Cumulative Effect was not Harmless Error. ICA held that the four comments had a cumulative effect and it could not "conclude beyond a reasonable doubt that the Prosecutor's conduct did not contribute to Suan's contribution" and vacated the judgment. See State v. Sanchez, 82 Hawai'i at 534, 923 P.2d at 951 ("the cumulative effect of the prosecutor's misconduct was to deny Defendant a fair trial."); State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986) ("prosecutor's comments, taken as a whole, substantially prejudiced [defendant's] right to a fair trial.").

Plain Error too? It is noteworthy here that the defense in this case did not object to any of the four comments. Thus, the ICA reviewed this case for plain error. Hawai'i Rules of Penal Procedure Rule 52(b). The appellate court will recognize plain error "when the error committed affects substantial rights of the defendant." State v. Staley, 91 Hawai'i 275, 282,982 P.2d 904, 911 (1999). Moreover, plain error is "to be exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system[.]" State v. Nichols, 111 Hawai'i 327, 335, 141 P.3d 974, 982 (2006).

Plain v. Harmless Error: the Perennial Problem. The ICA reviewed all four comments and held that they were indeed improper prosecutorial misconduct. The ICA also held that the cumulative effect harmful and constituted a reasonable possibility to the conviction. HRPP Rule 52(a). But on top of that it seems that this was all plain error affecting the substantial rights of the defendant. After all, the defense counsel never objected. What would have happened if the prosecutor only made one comment? Would there have been a cumulative effect warranting reversal? Perhaps not. To determine if reversal based on prosecutorial misconduct is warranted, the error must not be harmless beyond reasonable doubt. State v. Espiritu, 117 Hawai'i 127, 140-41, 176 P.3d 885, 898-99 (2008).

So it seems that if the prosecutor only made one of these improper comments, it could have withstood appellate review. But what if defense counsel objected? Would that mean that plain error is out of the equation (it's unclear where the plain error analysis was in this case anyway)? Does that put the single comment at issue again? Could it have still withstood review? This is the perennial problem of harmless error running up against plain error.

A Procedural Note. This case was originally issued as an unpublished disposition, but the ICA granted Suan's motion for publication and now it is precedent. This is the 2d time the ICA granted a motion for publication in 2009.