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)

OVERRULED IN PART BY HSC.

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.