Thursday, January 28, 2010

ICA: Circuit Court Cannot Ignore the Inevitable Discovery Doctrine, Remands in Absence of Findings

State v. Rodrigues (HSC January 25, 2010)

Background. Officer Williamson discovered that Rodrigues had outstanding bench warrants and placed him under arrest. Officer Williamson conducted a search incident to the arrest, but instead of doing a pat-down, he pulled out items from Rodrigues' pockets, including clear plastic baggies containing crystal methamphetamine. Rodrigues was put in the Kauai Police Dept. cell block. Officer Williamson admitted that he did not believe Rodrigues concealed weapons, drugs, needles, or any other contraband.

Rodrigues was charged with promoting a dangerous drug in the 3d (HRS § 712-1243). Rorigues filed a motion to suppress. The State argued that the evidence was still admissible because it would have been inevitably discovered during an inventory search that take place in the police cellblock. At the hearing, Sergeant Kaui testified that arresting officers are responsible for conducing searches of the arrestee, including pockets. The circuit court rejected the State's argument and granted the motion. The circuit court made no findings or conclusions with regard to the inevitable discovery argument. The State appealed.

True, the Search was Unconstitutional . . . On appeal, the State conceded that the search of Rodrigues' pockets was unconstitutional. See State v. Enos, 68 Haw. 509, 720 P.2d 1012 (1986). A search incident to an arrest must be limited to what is "reasonably necessary to discover the fruits or instrumentalities of the crime for which the defendant is arrested, or to protect the officer from attack, or to prevent the offender from escaping." Id. 68 Haw. at 511, 720 P.2d at 1104. The State conceded--and the ICA agreed--that Officer Williamson's search of Rodrigues' pockets was unconstitutional.

But Entre Inevitable Discovery. The analysis, of course, doesn't end there. Evidence that was unconstitutionally obtained may still be used at trial if "the prosecution can establish . . . that the information ultimately or inevitably would have been discovered by lawful means[.]" State v. Lopez, 78 Hawai'i 433, 450, 896 P.2d 889, 906 (1995) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). The prosecutor must present clear and convincing evidence of the inevitable discovery. Id. at 451, 896 P.2d at 907. Clear and convincing evidence is "evidence that will produce in the mind of a reasonable person a firm belief as to the facts sought to be established." Id. at 451 n. 30, 890 P.2d at 907, n. 30.

Failure to Enter Findings on the Record Violated Rules of Penal Procedure. "Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." Hawai'i Rules of Penal Procedure (HRPP) Rule 12(e). The ICA concluded that because the circuit court relied exclusively on Enos, the circuit court erred in granting the suppression without addressing the inevitable discovery exception. According to the ICA, the circuit court made no findings of fact nor oral ruling with regard to the inevitable discovery doctrine and violated HRPP Rule 12(e).

Remand Based on Insufficient Findings. According to the ICA, it is not its role "to make determinations as to the credibility of witness or the weight of the evidence." It therefore refused to conclude that the State established clear and convincing evidence that the plastic baggies would have been inevitably discovered through an inventory search in the police cellblock and remanded the case. In remanding the case, the ICA relied on State v. Anderson, 67 Haw. 513, 693 P.2d 1029 (1985), where the HSC remanded because the circuit court "made absolutely no findings of fact" and it was impossible for the appellate court "to determine the factual basis for the lower court's ruling." Id. at 513, 693 P.2d at 1029-30. The ICA also relied on State v. Hutch, 75 Haw. 307, 331, 861 P.2d 11, 23 (1993) ("cases will be remanded when the factual basis of the lower court's ruling cannot be determined from the record.").

What is the Remedy for HRPP Rule 12(e) Violations Anyways? Very recently, the Hawai'i Supreme Court addressed a similar, but related problem in State v. Estabillio, 121 Hawai'i 261, 218 P.3d 749 (2009). In that case, the circuit court entered no findings of fact or conclusions of law. Nonetheless, the HSC found that the circuit court complied with HRPP Rule 12(e) because it stated its essential findings on the record. Because of the compliance, the HSC concluded that "the circuit court's failure to file a written order denying the motion to suppress is not fatal to Estabillio's appeal." Id. at 267 n. 6, 218 P.3d at 755 n. 6. The Estabillio footnote suggests that a violation of HRPP Rule 12(e) would have jeopardized appellate review.

It appears that the ICA took a different approach in remanding the case without reference to Estabillio. Perhaps remand is fairer. After all, the appellant has no control over the entry of findings that would be subject to appeal. If violations of HRPP Rule 12(e) are "fatal," then any circuit court ruling in violation of the rule would escape appellate review. But can the HSC be so easily ignored? Is remanding the case at odds with Estabillio? Can the two be reconciled? Could Rodrigues--or any appellee--have argued that the HRPP Rule 12(e) violation was "fatal to [the State's] appeal"? And what then?

Tuesday, January 26, 2010

Pesky Plain Error Problems

State v. Miller (HSC January 25, 2010)

Background. Miller was charged with abuse of family/household member. The parties came to a plea agreement and entered it on the record. Miller would plead no contest to an amended charge of assault in the 3d degree (HRS § 707-712), write a letter of apology, serve 1 year probation with 48 hours jail, undergo a substance abuse treatment, pay restitution, and attend domestic violence classes. Miller would also move for a deferred acceptance of no contest plea (DANC) pursuant to HRS § 853-1. The State agreed that it would "take no position" on the DANC motion.

The family court reserved a guilty finding pending the DANC motion. The family court then heard the State's argument for sentencing. The prosecutor argued that this was a brutal incident and went into graphic detail about it. Miller argued that his motion for DANC should be granted based on the findings necessary under HRS § 853-1. The family court denied the motion and sentenced Miller according to the plea agreement.

Miller appealed on the grounds that the State breached its plea agreement. The ICA, in an unpublished order, concluded that because Miller failed to raise the breach to the family court at the time of sentencing and because no motion to correct the sentence pursuant to Hawai'i Rules of Penal Procedure Rule 35 had been filed, the issue had been waived. Furthermore, the ICA did not exercise plain error review.

Plain Error Allows the Court to Review the Issue. It was clear to the HSC and the ICA that Miller never raised the issues before the family court. Thus, the HSC first examined whether it could review the issue of the breached plea agreement. The HSC "will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of the judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." State v. Sawyer, 88 Hawai'i 325, 330, 966 P.2d 637, 642 (1998); see also HRPP Rule 52(b).

The question was whether a breach of a plea agreement triggers the plain error doctrine. The HSC concluded--contrary to the ICA--that it did because a breached plea agreement implicates fundamental rights. "[W]here a defendant is denied due process because the prosecution violates a plea agreement, there is manifest injustice as a matter of law." State v. Adams, 76 Hawai'i 408, 414, 879 P.2d 513, 519 (1994). Furthermore, a breach alone requires remand "in the interests of justice." Santobello v. New York, 404 U.S. 257, 262 (1971).

The Standard of Review . . . "[W]hether the State has actually breached the terms of a plea agreement . . . is a question of law, which we review de novo." State v. Abbott, 79 Hawai'i 317, 320, 901 P.2d 1296, 1299 (App. 1995). Accordingly, the HSC, having concluded that the plain error power allowed it to review the issue, reviewed the question de novo.

Prosecutor's Comments Breached its Agreement to "take no Position." While a plea agreement "is essentially a contract . . . [,] because the plea negotiation process implicates constitutional considerations--including the fairness and voluntariness of the plea--we have recognized that resort to contract principles cannot solely be determinative of the rights and duties compromising the plea bargain." State v. Adams, 76 Hawai'i 408, 412, 879 P.2d 513, 517 (1994). Furthermore, "[e]ven where the state technically complies with every term, a breach of the plea agreement may be found if the spirit of the agreement is breached." State v. Abbott, 79 Hawai'i at 320, 901 P.2d at 1299.

Here, the State agreed to all terms of the sentence and the only thing left for the family court to decide was the motion for DANC. The prosecutor's comments were, according to the HSC, an attempt "to influence the court's decision as to whether to grant the DANC" plea after explicitly promising not to do so. The breach arose because the State "clearly attempted to accomplish indirectly what it had promised not to do directly," and even though it agreed to take no position, the prosecutor's comments at sentencing "parallel[ed] several important factors which a court considers at sentencing." State v. Adams, 76 Hawai'i at 413-14, 879 P.2d at 518-19. This case, according to the HSC, is "virtually indistinguishable" from Adams. The appropriate remedy to vacate the sentence and remand to another judge. See State v. Anderson, 4 Haw. App. 102, 114, 661 P.2d 716, 724 (1983) ("Sentencing by another judge is the proper remedy").

On top of that, it's not Harmless. The HSC also concluded that the error in this case was not harmless beyond a reasonable doubt because "the court clearly took the prosecutor's comments into account in deciding to deny" the DANC motion.

Justice Nakayama's Dissent. Justice Nakayama dissented. Justice Nakayama agreed with the ICA that Miller waived his right to bring the issue regarding the breached plea agreement and that there was no plain error because substantial rights were not affected. Accordingly, Justice Nakayama would not have granted certiorari. Judge Hirai, substituting for Justice Recktenwald, joined. The following are just some of the contentions raised in her dissenting opinion.

The HRAP Rule 28(b)(4) Violation. In an opening brief, there must be a section for the points of error. Each point of error "shall" state the alleged error "committed by the court or agency," where in the record it occurred, and where the error was objected to or brought to the attention of the court or agency. Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Miller's opening brief stated that the judgment should be set aside because "the prosecutor violated the plea agreement." Justice Nakayama believed that Miller's opening brief violated HRAP Rule 28(b)(4). According to Justice Nakayama, "[s]tating an error was committed in the court . . . is not the same as an error committed by the court, which is the requirement of HRAP Rule 28(b)(4)." Justice Nakayama disagreed with the majority's conclusion that Miller complied with HRAP Rule 28(b). She believed that the majority has rewritten the rule and now requires appellate courts to review all alleged errors committed by parties in court, rather than only those errors committed by the court.

The Majority's take: not Violated, just Inapplicable. The majority disagreed. The majority wrote that HRAP Rule 28(b) was not violated, it was simply inapplicable. According to the majority, when a party raises plain error--that is, error that was not raised below, it is impossible to strictly comply with HRAP Rule 28(b)(4) because "the appellant will always be unable to point to where in the record the error was objected to, as required under the rule." Moreover, the majority criticized Justice Nakayama's formulation that the points of error must articulate an error committed by the court or agency. In the case where the breached plea agreement has not been objected to, the court did not commit an error "and to conjure one up is unreasonable." HRAP Rule 28(b)(4) is simply inapplicable.

Plain Error v. Plain Error sua Sponte. Justice Nakayama also took issue with the application of plain error. It appears that Justice Nakayama has derived two formulations of plain error. The first is one stemming from the court rules in HRAP Rule 28(b) and HRPP Rule 52(b). The other derives from the inherent power of the court. State v. Fields, 115 Hawai'i 503, 528-29, 168 P.3d 955, 980-81 (2007). According to Justice Nakayama, when an error has not been raised below at trial or on appeal, the court should exercise the inherent power to correct plain error sua sponte sparingly. Furthermore, the error itself should be extraordinary as it undermines the adversarial system. The majority took issue with the two standards. The majority held that when substantial rights are affected by the error, the better part of discretion is to employ the plain error rule.

No Plain Error--under any Standard. Justice Nakayama also disagreed that there was plain error at all. Simply stated, she did not agree that the breach of the plea agreement seriously affected Miller's substantial rights. Justice Nakayama believed that the majority erroneously applied the plain error standard by reviewing the issue de novo.

A Standard or a Doctrine? The majority's position is that plain error is a doctrine empowering appellate courts to correct errors that have not been raised below or even on appeal. The error must affect the substantial rights of the defendant. Here, the majority concluded that a breach of the plea agreement is plain error and opted to review it as if it had been raised below. And had this particular issue been raised, it would have been reviewed de novo. Having finished the merits, the majority also notes that the error was not harmless beyond a reasonable doubt.

Justice Nakayama, on the other hand, treats plain error more like a standard of review. She believes that when an issue is not raised below or on appeal, the court has the power to recognize plain error, but it should only be done sparingly and in extraordinary circumstances. This means that the appellate court should review the case and find plain error only when there is an error that seriously affects substantial rights.

The Plain Error Problem. Is the question settled? Does it mean that once found to have a serious affect on substantial rights, the court can act as if it had been raised and review it accordingly? What if the standard of review was an abuse of discretion? The lower court never addressed it and there was no discretion exercised to abuse? What then? Then again, it is tough to see plain error as a standard in itself. How does a court find an error? It would seem to imply that that in itself is de novo. It seems that the pesky plain error problem will continue to plague us.

Saturday, January 16, 2010

Procedure and Instrument Used in BAC Tests Must be Approved by DUI Coordinator

State v. Werle (HSC November 3, 2009)

Background. Werle was charged with operating a vehicle under the influence of an intoxicant. (HRS § 291E-61(a)). At trial, the State's witnesses established that Werle was arrested and submitted to a blood test. The blood sample was drawn and taken to a lab. Jon Tsuchida, a lab technician, testified that he ran the blood through a machine at the lab known as the Abbot AxSYM. Tsuchida also testified about the "enzymatic method" which was used to test Werle's blood. Tsuchida testified that Werle's BAC was 0.370. Dr. Clifford Wong testified. The prosecutor asked Dr. Wong if the lab's testing procedures had been approved by the DOH, but withdrew the question after Werle objected.

The State admitted into evidence a letter from the DOH stating that the lab's license to conduct blood alcohol testing had been updated. The district court also admitted into evidence the DOH-issued license for the lab that was in effect at the time Werle's blood was tested. At some point in the trial, Werle orally moved to strike evidence based on insufficient foundation. The motion was denied. Werle also made a motion to acquit based on insufficient foundation, which was also denied. Werle was found guilty, convicted, and the ICA affirmed.

No Plain Error here. The HSC first held that the ICA erred in reviewing the appeal for plain error. Plain errors, explained the HSC, are "errors that were not brought to the attention of the trial court." See Hawai'i Rules of Penal Procedure Rule 52(b). According to the HSC, Werle preserved his foundational objection to the introduction of his BAC results in his motion to strike evidence and in his motion to acquit. The appeal, therefore, should not have been reviewed by the ICA for plain error alone.

The DOH and Drunk Drivers. The Department of Health regulates which chemical testing procedures may be used to determine a person's blood alcohol content in drunk driving cases. HRS § 321-161. The DOH director issues laboratories licenses to perform these tests for the police. HAR § 11-114-18. A lab can only get a license if it uses "alcohol testing procedures approved in writing by the DUI coordinator[.]" HAR § 11-114-18(b)(5).

General Foundational Requirements Abbreviated upon Proof of DUI-Coordinator-Approved BAC Testing Procedures and Instruments. "A fundamental rule of evidence is that before the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact." State v. Souza, 6 Haw. App. 554, 558, 732 P.2d 253, 256 (1987). A blood alcohol test is based on science. "Whether scientific evidence is reliable depends on three factors, the validity of the underlying principle, the validity of the technique applying that principle, and the proper application of the technique on the particular occasion." State v. Montalbo, 73 Haw. 130, 136, 828 P.2d 1274, 1279 (1992).

License Update Insufficient Proof of Approval. According to the HSC, the reliability requirement in Montalbo is met as a "short cut" when the State presents evidence that the DUI coordinator approved in writing the specific blood alcohol testing procedure and instrument. The HSC concluded that the letter approving of the lab's license was insufficient. According to the HSC, neither the letter nor the license established that the testing procedure or the testing instrument used in Werle's case were approved by the DUI coordinator. Furthermore, Dr. Wong never testified that the procedure and instrument had been approved by the DUI coordinator. The question was withdrawn by the prosecutor.

What kind of Proof of Approval is Needed? What if the prosecutor was able to elicit testimony from Dr. Wong that the testing procedures and instruments in his lab had been approved by the DOH or the DUI coordinator? Would there still be a foundational problem? A lab can only maintain a license if it uses "alcohol testing procedures approved in writing by the DUI coordinator." HAR § 11-114-18(b)(5). The rule specifically provides that the approval by the DUI coordinator must be in writing. Does this necessitate proof of the written approval? Perhaps not. The opinion suggested that had the State elicited testimony from Dr. Wong that his lab's procedures and instruments were approved by the DOH, the foundational requirement would have been met. But then again, that is not quite what HAR § 11-114-18(b) says. If written proof is needed, then Dr. Wong's testimony is insufficient. HRE Rule 1002 ("To prove the content of a writing . . ., the original writing . . . is required"). Of course the HSC did not delve into this issue and we will have to wait for another day.

Don't Look to Lowther. The HSC agreed with Werle that the ICA erred in analogizing his case to State v. Lowther, 7 Haw. App. 2, 740 P.2d 1017 (1987). The HSC also looked to an older case, State v. Tengan, 67 Haw. 451, 691 P.2d 365 (1984). According to the HSC, Tengan and Lowther "teach that when the prosecution proves that a testing procedure has been approved by the DUI coordinator, it relieves the prosecution of the burden of presenting expert testimony to establish the reliability of that procedure." In other words, it is the "short cut" discussed earlier. These cases, explained the HSC, are distinguishable from this one. The record in Tengan showed that the breath intoxilyzer had been approved by the DOH. Tengan, 67 Haw. at 461, 691 P.2d at 372. And Lowther "merely clarified" that the DOH was responsible for monitoring and approving of testing methods and instruments.

Without the "Short Cut," There was no Expert Testimony Showing that the BAC Testing was Reliable. The first Montalbo prong is whether the underlying scientific principle is valid. Here, Dr. Wong, with a doctorate in biochemistry and as the Toxicology Lab Director , would have been able to testify about the validity of the scientific principles at work in the procedure and instruments used in Werle's case. But the State relied on Tsuchida, the lab "alcohol analyst." The Alcohol analyst performs the BAC tests, uses the testing procedures approved by the DOH, and keeps records of the results. HAR § 11-114-20(a). The HSC concluded that Tsuchida is analogous to an "operator" of testing instruments under HAR § 11-114-10. Tsuchida, according to the HSC, was qualified to testify abut the procedures he followed and the test results, but he was not qualified to testify as an expert on the validity of the scientific principles at work. The district court, therefore, erroneously allowed Tsuchida to testify.

Tuesday, January 5, 2010

When Plain Language Becomes Ambiguous

Stop Rail Now v. De Costa (ICA December 30, 2009)

Background. A group of concerned citizens submitted to the Clerk of the City and County of Honolulu a petition purportedly signed by over 49,000 registered voters. The petition proposed an ordinance by initiative stating that Honolulu mass transit "shall not include trains or rail transit." The Clerk rejected the petition for a special initiative election because the City and County Charter did not allow initiative special elections within 180 days of a general election. The petition was withdrawn.

Stop Rail Now brought a lawsuit and a motion in the circuit court seeking a preliminary injunction that directed the Clerk to file and process a special initiative election and, if there were sufficient signatures, place the proposed ordinance on the general election ballot. The circuit court granted the motion and ordered the Clerk to accept the petition and determine whether there was sufficient signatures. The circuit court concluded that the petition needed 44,525 signatures. Stop Rail Now argued it needed only 29,454. The Clerk certified only 35,065 signatures. Stop Rail Now appealed.

Ten Percent of What? The City and County Charter provides three ways for the electorate to petition for an ordinance. For general and scheduled special elections, any petition must be filed within 90 days of the election and certified by the clerk. For initiative special elections--an election just for the petition--the petition must be signed "by duly registered voters equal in number to at least fifteen percent of the votes cast for mayor in the last regular mayoral election . . .; provided that if the clerk certifies less than fifteen percent but at least ten percent, the proposed ordinance shall be submitted at the next general election or scheduled special election." Charter § 3-404(3). The circuit court concluded that the "but at least ten percent" clause referred to ten percent of the registered voters in the last mayoral election, and not ten percent of the votes cast for the mayor.

Plain Language, Maybe, but still Ambiguous. The fundamental starting point of statutory construction is the language of the statute itself. State v. Bayly, 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008). The ICA rejected Stop Rail Now's argument that the ten percent referred to ten percent of actual votes cast for the mayor. According to the ICA, the court must also look at "the context of the entire chapter providing the initiative power to the electors[.]" As a general matter, all petitions for ordinance must be signed by "at least ten percent of the total voters registered" in the last mayoral election. Charter § 3-402(1). The ICA concluded that this percentage sets a threshold for every petition. Thus, a petition for a special initiative election still requires ten percent of registered voters. According to the ICA, if only ten percent of the actual votes cast for mayor is all that is required for a ballot question to get onto the general election, then it would render the general requirement in Charter § 3-402 meaningless.

The Pragmatic Court? The ICA admitted that when viewed in isolation, Stop Rail Now's argument makes sense. But in the contest of the rest of Article III, Chapter 4 and particularly § 3-402(1), it must fail. To do so, according to the ICA, would override the § 3-402(1) threshold requiring that an ordinance by initiative petition be signed by ten percent of registered voters. And thwarting the ten-percent requirement under § 3-402(1) made no sense to the ICA.

However, the ICA concluded that it did make sense "to allow an initiative question that does not quite meet a more-stringent special-initiative-election standard to be submitted to the voters at the next regularly-scheduled election, if it otherwise [met] the 'ten percent' standard required by the Charter[.]" In other words, all petitions must have ten percent of registered voters. And to have a special initiative election, the petition must also have fifteen percent of the votes actually cast for mayor. If that number is not certified, then it goes on the ballot for a general election. But is that fifteen percent really as "stringent" as the ICA said it is? Under the ICA's construction, a petition may get the requisite number for a special initiative election--fifteen percent of the votes cast for mayor--but fail to get ten percent of the registered voters. And if less than fifteen percent is certified, then nothing goes on the general election ballot.

What is a Statute Anyways? The ICA took the position that when read in the entire context of Chapter 4 in the Charter, it would make no sense to require ten percent of the actual votes cast. "We must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose." Franks v. City and County of Honolulu, 74 Haw. 328, 335, 843 P.2d 668, 671 (1993). The ICA cited Franks as authority to look beyond the narrow statutory language and examine all of Chapter 4. While this seems logical, it does raise an interesting question in statutory interpretation: what is a statute? Sure, the canons of construction require that a plain reading of unambiguous language must also harmonize with the entire statute so that parts of it are not rendered insignificant or superfluous. See Coon v. City and County of Honolulu, 98 Hawai'i 233, 259, 47 P.3d 348, 374 (2002). But that is not exactly what happened here.

Here we seem to have a statute--section 3-404(3)--that refers to a specific number--fifteen percent of the actual votes cast for mayor--and then later refers to an amount between fifteen and ten percent. The ICA looked beyond this statute and at the other related statutes in the chapter as part of its construction. Is this consistent with the well-established canon of construction? If not, then is this case authority for courts to look to the entire statutory scheme and related statutes--even when the language at issue is plain and unambiguous? Perhaps so.