Saturday, December 24, 2011

Abandoned Property is not "Property of Another" (but Grand Jury Need not know who the Other is to Indict)

State v. Taylor (HSC December 15, 2011)

Background. Daniel Taylor was prosecuted by the federal government for violating the Native American Grave Protection Act (NAGPRA), 18 USC § 371. Taylor pleaded guilty for conspiring to sell, use for profit, and transport for sale and profit "Native American cultural items." He was sentenced to eleven months of imprisonment and one year of supervised release.

One year later, the State prosecuted Taylor for theft in the first degree. HRS § 708-830(1) and HRS § 708-830.5(1)(a). At the grand jury proceeding, the prosecution called only one witness. Abraham Kaikana was an agent for the Attorney General's Office. Agent Kaikana testified that back in the "1800s," a surveyor named Joseph Swift Emerson was shown Kanupa Cave on the Big Island. Inside the cave, Emerson removed artifacts and sold them to the Bishop Museum and the Peabody Essex Museum in Massachusetts. According to Agent Kaikana, Emerson tagged the items he took from the cave. Eventually, the items were "repatriated from" the museums and "reburied" in the cave. Groups like the State, "Hui Malama," "OHA," and the Bishop Museum were involved in the reburial.

Agent Kaikana testified that Taylor and his wife owned an antique shop in Captain Cook on the Big Island. He told the jurors that Taylor went to the cave, removed a rock blocking the entrance to the cave, and found artifacts and items in a lauhala basket. Some of these items had Emerson's tags on them. He took them from the cave and tried to sell them. The estimated value of the items ranged from $800,000 to $2 million. The grand jury returned a true bill.

Taylor filed a motion to dismiss on the grounds that there was no evidence establishing that the items at issue were "property of another" as defined in HRS § 708-800. Taylor also argued that the prosecution was barred by HRS § 701-112. The motion was denied. The circuit court allowed an interlocutory appeal. The ICA affirmed on the grounds that "only evidence that the property was not that of Taylor is required."

Theft Requires "Property of Another" is more than just "Property." "A person commits the offense of theft in the first degree if the person" commits theft of property worth over $20,000. HRS § 708-830.5(1)(a). A person can commit theft by obtaining or exerting "unauthorized control over the property of another with the intent to deprive the other of the property." HRS § 708-830(1). Taylor argued that the prosecution did not present any evidence that the property taken out of the cave belonged to anyone. Thus, according to Taylor, it could not be "property of another."

The HSC held that the ICA erred in concluding that mere proof that the property was not the defendant's was sufficient evidence to sustain the indictment. "Property of another" is property "which any person, other than the defendant, has possession of or any other interest in[.]" HRS § 708-800. The HSC agreed with Taylor that "property of another" is more than just "property." Abandoned property, for example, would not be "property of another."

But there was Sufficient Evidence that the Items were "Property of Another." The HSC, however, disagreed with Taylor that there was insufficient evidence. "A grand jury indictment must be based on probable cause." State v. Ganal, 81 Hawai'i 358, 367, 917 P.2d 370, 379 (1996). "Probable cause" means "a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." Id. Although proof that the property belonged to another is required, "[t]he particular ownership of the property in question was not an essential element in proving the crime[.]" State v. Nases, 65 Haw. 217, 218, 649 P.2d 1138, 1139-40 (1982). Here, there was enough evidence showing that the valuable and carefully wrapped items taken from the cave belonged to another. Although there was no evidence showing that OHA, Hui Malama, or any of the other groups had a distinct possessory interest in the property, there was still enough, according to the HSC, to at least sustain the indictment.

The Abandoned Property Defense. Abandoned property cannot be "property of another." The HSC noted that "abandoned property" generally means property "which the owner has voluntarily relinquished all right, title, claim, and possession, with the intention of terminating his or her ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein." 1 Am. Jur. 2d Abaondoned, Lost, and Unclaimed Property § 3 (2005).

Here, the HSC held that there was enough to at least sustain the indictment and carry it forward to trial. So what does the prosecution have to prove at trial? Simply that the property is that "of another." It means it would have to disprove beyond a reasonable doubt that the property is not abandoned. Whether the prosecution can establish proof beyond a reasonable doubt that the artifacts were not abandoned and belonged to another person must be resolved at trial.

State Prosecutions Barred if the Initial Prosecution was based on Same Conduct . . . Generally. When conduct is an offense in this state and in another concurrent jurisdiction, the subsequent State prosecution based on the same conduct is barred when that initial prosecution resulted in a conviction or an acquittal that was not set aside. HRS § 701-112(1). However, the State prosecution can go forward only if "[t]he offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil[.]" HRS § 701-112(1)(a).

The Two-Prong Exception: Proof of Facts not Required by the Initial Prosecution. Taylor argued that the State's theft prosecution was barred and the exception was not met. The HSC--without determining whether the initial bar had been met--went straight to addressing the exception. When a statute is "plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." Awakuni v. Awana, 115 Hawai'i 126, 133, 165 P.3d 1027, 1034 (2007). First, it determined whether the theft prosecution required "proof of fact not required" by the NAGRPA prosecution. Theft in the first degree requires proof that the defendant committed theft of "property or services, the value of which exceeds $20,000[.]" HRS § 708-830.5(1)(a). This is an essential element. State v. Duncan, 101 Hawai'i 269, 279, 67 P.3d 768, 778 (2003). Taylor pleaded guilty to trafficking and conspiracy under NAGPRA. 18 U.S.C. §§ 371 and 1170(b). According to the HSC, Taylor's federal prosecution did not require any proof whatsoever that the property at issue were worth more than $20,000. The HSC also rejected Taylor's argument that the memorandum of facts in his plea agreement contained all the facts needed to prove the theft charge. The HSC reasoned that even thought the value of the items were in the memorandum, they were not necessary to prove the NAGPRA offenses.

The Other Prong: Determining the Intended Harm or Evil. The second prong to the exception, however, was not met. The two prosecutions were intended to prevent substantially different harms or evils. When determining the harm or evil a statute is intended to prevent, the court examines the language of the statute. State v. Rapozo, 123 Hawai'i 329, 338, 235 P.3d 325, 334 (2010); State v. Kupihea, 98 Hawai'i 196, 206, 46 P.3d 498, 508 (2002). The purpose of the theft statute, according to the HSC, is to protect owners "from the deprivation of their property[.]" State v. Freeman, 70 Haw. 434, 439, 774 P.2d 888, 892 (1989). Conspiracy, on the other hand, is intended to prevent a very different harm or evil--the threat of agreements to commit a crime. See United States v. Feola, 420 U.S. 671, 693-94 (1975). The same with NAGPRA, which is intended to "assist Native Americans in the repatriation of items that the tribes consider sacred[.]" United States v. Corrow, 941 F.Supp. 1553, 1567 (D. N. M. 1996). It is not intended to address the unlawful taking or destruction of property. Id. Thus, the state theft statute is intended to prevent a substantially different harm or evil than that which was intended by NAGPRA and the conspiracy statute. Thus, the exception was met and the State prosecution was not barred by the federal guilty plea.

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the majority that the State theft prosecution was not barred by HRS § 701-112. However, he disagreed that there was sufficient evidence that the artifacts were "property of another." "Property of another" is defined as "property which any person, other than the defendant, has possession of or any other interest in[.]" HRS § 708-800. According to Justice Acoba, the words "any other interest" must mean a property interest. Moreover, Justice Acoba wrote that if the language meant anything other than a property interest, the statute would be void for vagueness and in violation of due process. State v. Manzo, 58 Haw. 440, 454, 573 P.2d 945, 954 (1977); State v. Petrie, 65 Haw. 174, 649 P.2d 381 (1982). Thus, the prosecution had to present some evidence that another had a distinct property interest in the artifacts. According to Justice Acoba, there was no evidence that would allow the grand jury to find any evidence that another had a property interest. The artifacts were reburied, and the cave was sealed with a rock. The prosecution's evidence that "Hui Malama, OHA, the Bishop Museum, and the State" had a cultural or some "other interest" was insufficient for Justice Acoba. Allowing the prosecution to simply assert some kind of vague "cultural" or "other" interest and switch theories throughout the appellate process in its argument, wrote Justice Acoba, "unfortunately lends credence to the often-repeated criticism that the grand jury has become a rubber stamp." See State v. Kahlbaun, 64 Haw. 197, 203, 638 P.2d 309, 315 (1981).

Sunday, December 4, 2011

Why a Plaintiff Brings a Lawsuit Cannot be Considered by the Jury.

Kobashigawa v. Silva (ICA December 2, 2011)

Background. William Kobashigawa was walking across Kamehameha Highway in a crosswalk in Kaneohe, when a truck driven by Joseph Silva hit him. Kobashigawa died. Gina Bailey was a witness. The estate of Kobashigawa and family sued Silva and the City and County of Honolulu. The Kobashigawas claimed negligence, negligent infliction of emotional distress, and loss of consortium. The Kobashigawas alleged that the City was negligent in the design of the highway with poor lighting in the crosswalk. The Kobashigawas settled with Silva and went to trial against the City. At trial, portions of Bailey's deposition were read to the jury. Also at trial, the City was allowed to use evidence on possible motives for bringing the suit. The jury found that the City was not negligent, and the circuit court awarded the City with costs. The Kobashigawas appealed.

A Plaintiff's Motives for Bringing a Lawsuit Cannot be Considered by the Jury. At trial, the circuit court gave this instruction:

You have heard testimony from one witness about certain statements attributed to a Kobashigawa family member following Mr. Kobashigawa's death. Your consideration of this evidence is limited to determining the existence or absence of any possible bias, interest or motive, if any, by [the Kobashigawas] in bringing this lawsuit and not for any other purpose.

The Kobashigawas did not object to the instruction at trial, and argued for the first time on appeal, that this instruction was erroneous and constituted plain error. The ICA agreed on both points.

The ICA held that this instruction was an erroneous statement of law. According to the ICA, "the motives of the plaintiffs are immaterial absent bad faith." Carter v. Ah So, 12 Haw. 291, 302 (Haw. Rep. 1899) ("So far as the law is concerned, if the plaintiff has made out a case on the facts, it is immaterial what [the] motive was."); Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010) ("motive of a party in bringing an action generally is immaterial to the question whether the action may be maintained."); Sommers v. AAA Temp. Servs., Inc., 284 N.E.2d 462, 465 (Ill. App. Ct. 1972) ("It is generally accepted that where the plaintiff asserts a valid cause of action, . . . motive in bringing the action is immaterial."). Simply put, the jury cannot consider the motives of the Kobashigawas "absent bad faith."

It's Plain Error. In a civil case, appellate courts look to three factors in considering whether a trial court committed plain error: "(1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the integrity of the trial court's findings of fact; and (3) whether the issue is of great public import." Montalvo v. Lapez, 77 Hawai'i 282, 290, 884 P.2d 345, 353 (1994). The ICA weighed these three factors and held that the instruction was plain error. The first factor was satisfied. The circuit court gave the instruction. That was all that was needed to consider the issue. As for the second factor, the ICA held that because the trial court has a duty to properly instruct the jury on the law, id. at 291, 884 P.2d at 354, the second factor was met. In other words, it seems like the issue affects the findings of fact. Finally, the ICA held that the issue was of great public import.

The Improper Comments at Closing Argument Exacerbated the Erroneous Instruction. During closing argument, the City mentioned that when Bailey called the Kobashigawas days after the accident, the Kobashigawas immediately asked Bailey if she was going to testify when they sue. That, argued the City, horrified Bailey and she immediately hung up. The City then argued that "this case simply [is] about getting a collectable monetary award from the City when it was [Silva] who caused the accident[.]" This comment, according to the ICA, added to the harm caused by the erroneous jury instruction. Thus, the circuit court erred in allowing the City to comment in its closing argument on the Kobashigawas' motives for bringing the lawsuit. See Kakligian v. Henry Ford Hosp., 210 N.W.2d 463, 465 (Mich. Ct. App. 1973).

A Tragedy of Errors? The ICA clearly stated that a plaintiff's motives for bringing a good faith lawsuit are immaterial and cannot be considered by the jury. That meant that the jury instruction was an erroneous statement of law. Furthermore, even though it was not objected to at trial, it was so significant, that it constituted plain error. Fine. But then the ICA held that the circuit court erred in allowing the City to make a comment touching upon the Kobashigawas' motives because it "added to the harm" of the erroneous instruction. Shouldn't that error--allowing the comment--be an error onto itself because it urged the jury to consider the motives of the plaintiff? Why should it be error just because of the jury instruction? What if there was no such instruction? It would seem that the error in allowing the comment can stand on its own. (Whether it is plain error is an entirely different question). But to link it to the jury instruction complicates things.

What if there was no comment, and only an instruction? Is the error still plain? Maybe. The ICA did not take the comment into consideration when it weighed the Montalvo factors. Separating these out may never be resolved, but the basic principle is pretty clear: the plaintiff's motives in bringing the suit are off limits so long as the suit is in good faith.

Thursday, November 24, 2011

ICA: Grand Jury Counsel Misconduct Could Trigger Dismissal of Indictment (just not in this case)

State v. Griffin (ICA November 22, 2011)

Background. Darnell Griffin was charged with murder in the second degree and sexual assault in the first degree. On September 5, 1999, Evelyn Luka went out to her regular nightspot, the Venus Nightclub on Kapiolani Boulevard. Her husband, Kevin, stayed home. The Lukas agreed that she would be home by midnight. At around midnight, Luka called Kevin and told him that she was staying an hour longer and was going to get a ride home with a friend from Salt Lake. Venus employees remember seeing a woman matching her description there, and recalled that she left at around midnight with an African-American man in a dark green Nissan Pathfinder. Luka never came home. Kevin called Venus several times, but they ignored his call.

The next morning, at around 8:00 a.m., a commuter on the H-2 near the Ka Uka Boulevard on-ramp saw something on the side of the road near the on-ramp. The commuter and two off-duty police officers went to the area and found a woman lying face down on the ground convulsing. She had a hard time breathing and trembling. She was taken to the hospital. Before leaving, the police saw an African-American man near the area standing outside of his vehicle. Before they approached him, he went into his car and drove off.

Doctors found evidence of sexual abuse, but an examination showed no scarring, bruising, or discoloration around her genitals. They found no sperm on her body either. Luka was in a coma and taken off life support, and the murder investigation began.

The case drew no leads and went cold for two years. Detective Sunia took over the case submitted samples taken from Luka's body for DNA analysis. The DNA showed spermatozoa from an unidentified male. The sample was put onto a general DNA database. Months later, the DNA database indicated that the sample identified Griffin. Det. Sunia learned that in 1999, Griffin owned a 1996 Nissan Pathfinder. Griffin was arrested in 2007. At the police station, an officer overheard him talking to his wife. He was heard saying to his wife to "clean the car, clean the car."

The Grand Jury Hearing. At the grand jury hearing, Det. Sunia testified. A juror asked her when Griffin was first interviewed by the police. The prosecutor stopped the questioning and said that the grand jury counsel should answer that question. The grand jury counsel arrived and jurors started to ask when the police started questioning Griffin and wondered why they did not test the DNA back in 1999. The grand jury counsel was unsure, but told the jury that there was a newspaper article about the case. As for not testing the DNA in 1999, the grand jury counsel speculated that DNA was not available until much later. Counsel also mentioned that sex offenders are required to put their DNA in a database. Finally, counsel commented that based on the newspaper article, Griffin was not a suspect until the DNA match came up. "The reason why it's interesting is because of the DNA situation that allows them to take these cold cases and bring them back to life."

The grand jury wanted to know how they managed to identify Griffin as a suspect after several years of no leads. The grand jury counsel again speculated that "[t]hey must have had some other evidence that I'm not aware of. I don't know what they've told you but they must have had some evidence back in 1999 when this girl was found[.]"

The discussion about whether Griffin was an original suspect in 1999 continued, and the grand jury counsel mentioned the newspaper article again. Counsel told the grand jury that DNA "brings about the ability to close cases that have been considered" cold.

When Det. Sunia got back on the stand, the grand jury asked her what made Griffin a suspect. Det. Sunia said that HPD kept a "general data base" with unknown DNA evidence taken from Luka's body. After vigilant checking and comparing, it came up with a potential suspect, Darnell Griffin. The grand jury indicted Griffin with murder in the second degree and sex assault in the first degree.

Griffin filed a motion to dismiss the indictment based on misconduct not on the part of the prosecutor, but the grand jury counsel. The circuit court noted the dearth of case law on the standards for grand jury counsel, applied the standard used for prosecutorial misconduct at a grand jury proceeding, and denied the motion.

Pre-Trial Motions and Trial. Griffin filed a motion seeking to use evidence of Luka's extramarital affair and promiscuity to show that Griffin did not cause her death, that any sexual contact was consensual, and to undermine Kevin Luka's credibility. The prosecution filed a motion seeking to keep that evidence out. The circuit court granted the prosecution's motion thereby denying Griffin's. At trial, Griffin was convicted of murder in the second degree and acquitted of sexual assault. His motion for acquittal based on a lack of evidence was denied. The circuit court sentenced Griffin to life in prison without the possibility of parole. He appealed.

The Independent Grand Jury Counsel. "Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it." Haw. Const. Art. I, Sec. 11. The grand jury counsel is "unique in American jurisprudence for there is no comparable provision in either the federal or other state constitutions." State v. Kahlbaun, 64 Haw. 197, 200, 638 P.2d 309, 313 (1981). Grand jury counsel is not an advocate for the accused. State v. Hehr, 63 Haw. 640, 641, 633 P.2d 545, 546 (1981). It was intended to "ensure an independent grand jury and to relieve the prosecutor of the conflicting burdens of presenting evidence in support of the indictment and advising the grand jury on matters of law[.]" Id. at 641, 633 P.2d at 546-47. Counsel serves "to receive inquiries on matters of law sought by the grand jury, conduct legal research, and provide appropriate answers of law." HRS § 612-57.

Prosecutorial (and other kinds of) Misconduct Before the Grand Jury. "[A]n indictment that is the result of prosecutorial misconduct or other circumstances which prevent the exercise of fairness and impartiality by the grand jury may be successfully attacked." State v. Chong, 86 Hawai'i 282, 288-89, 949 P.2d 122, 128-29 (1997). There are not a lot of cases addressing the independent grand jury. However, there are many cases addressing when prosecutorial misconduct before the grand jury warrants the dismissal of an indictment. Nonetheless, the ICA held that allegations of misconduct by the grand jury counsel fall under the "other circumstances" that prevent the grand jury's ability to be fair and impartial and can be attacked.

The New Standard: Misconduct by the Grand Jury Counsel. The ICA noted that in prosecutorial misconduct cases, the burden is on the defendant to show the misconduct, State v. Pulawa, 62 Haw. 209, 214, 614 P.2d 373, 376 (1980), and saw "no compelling reason to change who shoulders the burden for motions to dismiss based on grand jury misconduct."

The ICA adopted a new standard in examining grand jury counsel misconduct: "to warrant dismissal of an indictment, a defendant must show that the grand jury counsel's misconduct has clearly infringed upon the grand jury's decision-making function and invaded the province of the grand jury, and that the misconduct tended to induce action other than that which reasonable grand jurors, in their uninfluenced judgment, would deem warranted based on the evidence fairly presented to them." The ICA adopted this standard in light of grand jury counsel's authorized role and function.

Grand Jury Counsel was Improper, but not Prejudicially so. The ICA held that the circuit court did not err in denying Griffin's motion to dismiss. Even though grand jury counsel kept mentioning the newspaper article that was not presented at the hearing, the ICA found no prejudice because "this fact was already known to at least one juror." And even though grand jury counsel referred to the sex offender DNA database, he did not know if that was the case here. Finally, the grand jury counsel said that he did not know if there was enough evidence to accuse Griffin or not in 1999. The ICA acknowledged that these statements were indeed improper, but they were not prejudicial because they did not invade the province of the grand jury.

The Impropriety . . . The ICA held that the grand jury counsel's comments were improper. "While better left unsaid, the statements were either regarding matters already known to the grand jurors or were clarified so that it was made clear the [grand jury counsel] was not stating a fact in Griffin's case[.]" This implies that if there were facts that were not known to the jurors or if it was not clear that the grand jury counsel was stating a fact, it could have arisen to prejudicial impropriety.

But the ICA did not really make it clear why these comments by grand jury counsel were improper. The grand jury counsel is there to advise the grand jury on its legal questions. For example, grand jury counsel is often called upon to inform jurors about the elements of an offense or something like that. It is not designed to be an expert juror commenting on the evidence presented, which is what this grand jury counsel appeared to be doing.

Evidence of Prior Sexual Behavior does not Show that Another Could have Killed her. Griffin also argued that the circuit court erred in prohibiting him from using evidence that Luka had extramarital affairs and stayed out late at nightclubs. Griffin argued that this evidence was relevant because it would have shown that other persons could have killed her. The ICA rejected his argument. When presenting evidence that another person was motivated to commit the crime, "there must be some nexus between the proffered evidence and the charged crime" as well as "substantial evidence tending to directly connect that [other] person with the actual commission of the offense." State v. Rabellizsa, 79 Hawai'i 347, 350, 903 P.2d 43, 46 (1995). The ICA held that Griffin did not present any evidence, let alone "substantial evidence," linking any other person to Luka's death.

The Other Issues. Griffin contended that the admission of his conversation with his wife about cleaning the car was irrelevant and, if relevant, too prejudicial under Hawai'i Rules of Evidence (HRE) Rules 401 and 403. The ICA held that this was not plain error (Griffin did not object at trial). According to the ICA, this evidence was relevant because it showed some consciousness of guilt, not prejudicial, and not plain error (Griffin did not object at trial). Finally, the ICA rejected Griffin's claim that there was insufficient evidence to convict him of murder in the second degree. Although there was conflicting evidence, there was substantial evidence supporting the verdict viewed in the light most favorable to the prosecution. State v. Eastman, 81 Hawai'i 131, 135, 913 P.2d 57, 61 (1996).

Saturday, October 29, 2011

Confrontation Clause is not a Right to Present Misleading Evidence

State v. Brooks (ICA October 21, 2011)

Background. Ted Arifuku was found dead in his apartment with his hands tied behind his back and bruises and cuts all over his body. The medical examiner concluded that Arifuku had been strangled to death. The police searched his apartment and found a homemade utility knife and a blue cap that was on the bed, methamphetamine, and marijuana. Soon after the discovery of the body, police received information that the blue cap belonged to Curtis Ray Brooks, who was homeless and living in a van off of Date Street. Police questioned Brooks and Brooks implicated Sistine Rangamar. Rangamar was then arrested and provided a lengthy statement to the police.

Rangamar's Statement. Rangamar told the police that Arifuku was a drug dealer and that Brooks planned his death. Rangamar said that Brooks instructed him to visit Arifuku in his apartment while Brooks waited nearby. Rangamar was supposed to subdue Arifuku, tie him up, and let Brooks in through a back door. Rangamar said that Brooks gave him the knife and the blue cap. The next morning, Rangamar went to Arifuku's apartment and knocked on the door. Arifuku answered and Rangamar went inside to buy a "twenty." Arifuku got suspicious and tried to get him out of the apartment. They struggled. Eventually, Rangamar tied up Arifuku, but he lost consciousness. When he came to, he saw that Arifuku was still breathing. Rangamar knocked on the back door, but Brooks was not there. Rangamar took some money and left. Later that day he met up with Brooks, who was mad at him for leaving him hanging. Rangamar later learned that Arifuku died and denied killing him.

The Trial. Both Brooks and Rangamar were charged with kidnapping, robbery, and murder. Before trial, however, Rangamar killed himself. Brooks filed a motion in limine allowing him to introduce certain portions of the Rangamar statement pursuant to HRE Rule 804(b)(3) (statements against Rangamar's penal interest). Brooks' portions included Rangamar saying that he tied up and assaulted Arifuku, and that he brought Brooks' cap and the homemade knife to the apartment. In all, there were eight portions proffered by Brooks.

The prosecution objected, and wanted to submit other portions implicating Brooks based on the rule of completeness. HRE Rule 106. Brooks responded that the prosecution's use of the responsive portions violated his rights under the Confrontation Clause. The circuit court ruled that the Rangamar statement was "testimonial" under the Confrontation Clause, and could not be used at trial for the prosecution's case in chief. However, if the statements proffered by Brooks were used in his defense, almost all of the portions would violate the rule of completeness. Thus, if Brooks did open that door and use those portions, the prosecution would be permitted to use the responsive portions.

Brooks used the portions at trial, the prosecution responded with its portions. The jury found Brooks guilty of manslaughter, kidnapping, and robbery. The jury also merged the manslaughter with robbery and kidnapping with robbery. The prosecution elected to dismiss the robbery charge. The circuit court sentenced Brooks to 20 years for the manslaughter and 20 years for the kidnapping, running consecutively. Brooks appealed.

The Right to Preclude "Testimonial" Hearsay Statements can be Waived. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused." Haw. Const. Art. I, Sec. 14; see also U.S. Const. amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" Testimonial hearsay statements cannot be used in criminal prosecution unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant about the statement. Crawford v. Washington, 541 U.S. 36, 68 (2004); State v. Fields, 115 Hawai'i 503, 513, 516, 168 P.3d 955, 965, 968 (2007).

This "right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); State v. El'ayache, 62 Haw. 646, 649, 618 P.2d 1142, 1144 (1980). Similarly, the criminal defendant's right to present testimony may be limited by evidentiary rules that further legitimate interests in the criminal trial process. Michigan v. Lucas, 500 U.S. 145, 149 (1991); State v. Pond, 118 Hawai'i 452, 463, 193 P.3d 368, 379 (2008). Finally, the defense can waive the right to confront witnesses when the waiver is "a matter of trial tactics and procedure." Thompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981).

The Rule of Completeness Allows the Prosecution to Rebut Misleading Portions of a Statement Offered by the Defense. "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." HRE Rule 106. The prosecution argued that the Brooks' portions were so misleading without the rest of the statement, that it would unfairly mislead the jury. Brooks did not dispute that on appeal. Instead, he argued that the Confrontation Clause prohibited the prosecution from using those portions and that the rule of completeness cannot trump his constitutional rights.

The ICA turned to courts from other jurisdictions that have examined this particular issue and disagreed with Brooks. Arizona v. Prasertphong, 114 P.3d 828, 829-30 (Ariz. 2005) (defendant "forfeited his Confrontation Clause right not have [the] statement admitted against him when [the defendant] himself introduced portions of that statement"); People v. Parrish, 152 Cal. App. 4th 263, 276 (Cal. App. 2007), U.S. v. Moussaoui, 382 F.3d 453, 481-82, (4th Cir. 2004), South Dakota v. Sellalla, 744 N.W.2d 802, 818 (S.D. 2008).

Brooks' Choice: Waive Confrontation Rights or Decline Using the Statement. The ICA held that the circuit court did no err in allowing the prosecution to introduce its portions of the Rangamar statement in response to Brooks' introduction of his portions. The circuit court concluded that Brooks' portions, standing alone, created "the danger of unfair prejudice . . . or misleading the jury[.]" HRE Rule 403. Thus, Brooks had a choice: offer his portions of Rangamar's statement and allow the prosecution to rebut the portions that would mislead the jury, or not offer the statement at all. Brooks argued that under Crawford, he did not have to make this choice. The ICA affirmed the circuit court and held that "Crawford does not bar the admission of evidence pursuant to the rule of completeness." Brooks, according to the ICA, cannot introduce his portions of the statement "and, at the same time, use Crawford to preclude the State from introducing other portions of Rangamar's statement that were necessary to prevent the jury being misled." The ICA explained that the right of confrontation "cannot be used to distort and subvert the truth-seeking function of the criminal trial process[.]"

Rejecting the Cromer. The ICA also rejected the lone case cited by Brooks. In United States v. Cromer, 389 F.3d 662, 678-79 (6th Cir. 2004), the federal appeals court held that the government could not introduce testimonial hearsay evidence in response to the defendant's introduction of evidence. The Sixth Circuit reasoned the Crawford made it clear that the Confrontation Clause was not dependent on the law of evidence. Id. The ICA simply explained that it was "not persuaded by the reasoning in Cromer and decline[d] to follow it." It also cited other courts that were not convinced by Cromer. State v. Birth, 158 P.3d 345, 354-55 (Kan. Ct. App. 2007); People v. Ko, 789 N.Y.S.2d 43, 45 (N.Y. App. Div. 2005).

Crawford and the Rules of Evidence. Before 2004, the Confrontation Clause did not preclude the prosecution from using evidence as long as it has an "indicia of reliability," which meant it had to fall within a "firmly rooted hearsay exception" or have "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980). The SCOTUS rejected this test in Crawford v. Washington. Justice Scalia, writing for the court, explained that "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Crawford, 541 U.S. at 51. Cromer, decided around eight months after Crawford, must have taken this language to heart and refused to allow the prosecution to introduce testimonial hearsay even if it gave the jury a distorted picture. But since then, courts--including the ICA--appear to be moving away from this strong language. The SCOTUS has yet to determine whether we can move away at all.

Can Crawford Prohibit Rebuttal Evidence? The ICA joined other courts that allow the prosecution to use testimonial hearsay that would normally be in violation of the Confrontation Clause when it is used to rebut the defense. But how broad is this exception to Crawford? The answer could come from the circuit court again. The circuit court allowed the prosecution to rebut seven out of the eight portions proffered by Brooks. The lone exception was Rangamar's statement that he took Brooks' blue cap to Arifuku's apartment. This statement was not misleading to the jury and there was no need to rebut it under HRE Rule 106 and HRE Rule 403. So did that mean, that the Confrontation Clause prevented the prosecution from presenting rebuttal evidence?

For example, let's say that the defendant has an alibi witness who will testify, and the prosecution wants to use a statement in violation of the Confrontation Clause to rebut the testimony. Can it? Or has the defendant waived his or her right to confront? HRE Rule 106 would not apply because the evidence is not from the same statement. What about HRE Rule 403? Would it be misleading to have the jury hear just the alibi witness and not the statement? If so, could the prosecution use the Crawford-offending evidence? Is this the kind of situation Crawford was intended to correct? Only time will tell.

Friday, October 21, 2011

The Maximum Term of Imprisonment is the Statutory Maximum (not the Maximum Range under Federal Sentencing Guidelines)

State v. Andres (ICA October 20, 2011)

Background. Ray Andres was charged with promoting a dangerous drug in the second degree. HRS § 712-1242. The date of the alleged offense occurred on November 6, 2006. The prosecution moved for a mandatory minimum term of three years and four months of imprisonment without the possibility of parole. Over Andres' objection, the circuit court determined that Andres was eligible for a mandatory minimum based on a conviction for a federal drug offense in 1991. In that case, Andres pleaded guilty to attempting to possess over 100 grams of crystal methamphetamine on July 3, 1991 and was sentenced on July 8, 1991. The federal court determined that Andres was subject to a range of 121 to 151 months. The circuit court imposed a mandatory minimum on Andres. Andres appealed.

The Repeat-Offender Statute. Andres was found guilty of a class B felony and sentenced pursuant to the repeat-offender statute. "[A]ny person convicted of . . . any class B felony . . . and who has a prior conviction or prior convictions for the following felonies . . . or any felony conviction of another jurisdiction, shall be sentenced to a mandatory minimum period of imprisonment without the possibility of parole[.]" HRS § 706-606.5(1). However, "a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows . . . [w]ithin the maximum term of imprisonment possible after a prior felony conviction of another jurisdiction." HRS § 706-606.5(2)(f).

What's the "Maximum Term of Imprisonment"? Andres argued that the exception applied to him because the date of the current offense--November 6, 2006--occurred beyond the "maximum term of imprisonment" for the federal offense. Andres argued that the "maximum term of imprisonment" was the 151 months from the federal sentencing guidelines, which were mandatory at the time of the sentencing. On the other hand, the prosecution argued that the "maximum term of imprisonment" refers to the statutory maximum. Here, Andres was convicted of violating a federal statute. 21 U.S.C. § 841(b)(1)(A). The statutory maximum is a life sentence.

Maximum Term of Imprisonment = the Statutory Max. under the laws of that Jurisdiction. The ICA rejected Andres' argument. "The phrase 'maximum term of imprisonment possible' in HRS § 706-606.5(2)(f) . . . refers to the maximum term of imprisonment to which a court in a foreign jurisdiction may possibly sentence a convicted defendant." State v. Heggland, 118 Hawai'i 425, 436, 193 P.3d 341, 352 (2008). In determining the maximum term possible, the HSC looked to the jurisdiction that sentenced the defendant. Here, the ICA turned to federal authorities to determine the maximum possible sentence. According to the ICA, the federal authority is clear: the maximum term of imprisonment stems from the United States Code, not the federal sentencing guidelines. United States v. Ray, 484 F.3d 1168, 1171 (9th Cir. 2007); United States v. Hinson, 429 F.3d 114, 119 (5th Cir. 2005); United States v. Work, 409 F.3d 383, 488-92 (1st Cir. 2005). The ICA held that the maximum term of imprisonment for Andres was a life term. Thus, any subsequent offense was within the maximum term of imprisonment.

What's the Maximum when you can go Beyond the Statutory Maximum? This is a straight-forward case. The ICA held that the statutory maximum is the measuring stick, not the maximum guideline range. So far, so good. But sticky problems await. Some statutes allow the sentencing court to go beyond the statutory maximum and impose enhanced sentences provided that certain evidence is proven by the prosecution before a jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). So what's "the maximum term of imprisonment" in that situation? Would it be the enhanced sentence if the prosecution went proved those facts? Probably. But what if it didn't, but it could have done it? Would the measuring stick still be the enhanced sentence? Heggland states that "the maximum term of imprisonment to which a court in a foreign jurisdiction may possibly sentence a convicted defendant." State v. Heggland, 118 Hawai'i at 436, 193 P.3d at 352. And a court could possibly sentence a defendant to the enhanced sentence. Then again, the answer could be no. A "convicted defendant" suggests that the maximum term is limited to the statutory maximum without the enhancing facts. Either way, that issue is out there waiting for resolution.

Thursday, October 20, 2011

HSC: Burden is on the Court to Explain why it Reduced a Court-Appointed Attorney's Request for Fees Exceeding the Statutory Maximum

In re Attorney's Fees of David Bettencourt (HSC October 19, 2011)

Background. The circuit court appointed David Bettencourt to represent Joshua Gonda in a murder case. The case went to trial and Gonda was found not guilty on all counts. Bettencourt represented Gonda for 16 months. In the middle of the case, Bettencourt requested attorney's fees of $19,188 for 213.2 billable hours at $90.00 per hour. The trial court judge certified the entire amount. The administrative judge, however, struck out billable time submitted for making copies of documents on the grounds that it was not legal work. The administrative judge approved of $18,567.

After trial, Bettencourt made his second request. This time he requested $38,529 in fees for 428.1 hours of work. The trial judge approved it. Again, however, the administrative judge cut out almost $11,000 in fees and awarded $26,640. The administrative judge did not provide any specific grounds for the cut. Attached to the reduced award, however, was a memorandum noting that administrative orders of the court allow "reasonable compensation" and that anything over the statutory threshold may be rejected by the administrative court. The statutory threshold in this kind of case is $6,000. The day the reduced award was issued, the Chief Justice of the HSC ordered that administrative orders would have no effect. Bettencourt appealed.

Court-Appointed Attorneys and Their Bread n' Butter. "The court shall determine the amount of reasonable compensation to appointed counsel, based on a rate of $90 an hour; provided that the maximum allowable fee shall not exceed" a schedule depending on the kind of case. HRS § 802-5(b). Here, the felony case is limited to $6,000. Payment in excess of the maximum is permissible "whenever the court in which the representation was rendered certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the administrative judge of the court." Id.

Certifying and Approving: Two Tiers of Independent Review. The statute, according to the HSC, clearly delineates two levels of review. First, the trial court must certify the amount and secondly the administrative judge must approve. The issue was determining what standards of review were needed. HSC--relying on federal courts--interpreted HRS § 802-5(b) to warrant two independent reviews at the "certifying" and "approving" stages. See United States v. Harper, 311 F.Supp. 1072, 1072-73 (D.D.C. 1970); United States v. Sepulveda, 502 F.Supp. 2d 1104, 1106 (D. Mont. 2007). The HSC held that the trial judge and the administrative judge have de novo review of a request for fees exceeding the statutory maximum.

Reducing the Request Requires a Stated Reason. The HSC reviews the reduction of fees for an abuse of discretion. In re Attorney's Fees of Reinhard Mohr, 97 Hawai'i 1, 6, 32 P.3d 647, 652 (2001). The administrative judge reduced the second amount but did not explain why it was reduced. This made it impossible for the HSC to determine whether the administrative judge did in fact abuse its discretion in reducing the requested amount. Unlike Mohr, where the ICA reduced without explanation an appellate attorney's request that was below the statutory maximum, Bettencourt's request is six times the statutory maximum for a very weighty case--several counts of murder after a 14-day trial. The HSC noted that in this kind of case, "[t]he trial judge (in particular) and the administrative judge are the ones most capable of evaluating whether the compensation Bettencourt requested was fair in light of the work he performed." The HSC further held that in order to enable appellate review of a reduced award, the judge reducing the award must set forth reasons for the reduction. The case was remanded back to the circuit court.

Certifying v. Approving: is there a Difference? The HSC held that both judges conduct an "independent review" of the requested amount. The trial court certifies it, while the administrative judge approves it. Are these different things? Certainly, the legislature intended to put different meaning to the different words, right? Perhaps not. The HSC did not elaborate on the difference. It held that both judges have an independent review. This means that the administrative judge does not defer to the certification of the trial court. And yet, the HSC later noted that "[t]he trial judge (in particular) and the administrative judge are the ones most capable of evaluating whether the compensation Bettencourt requested was fair in light of the work he performed." Does that suggest that when performing an independent review, the administrative judge should have some deference?

Tuesday, October 18, 2011

Juries have to Award General Damages Exceeding $1.00 once they find Liability and Special Damages

Kanahele v. Han (HSC October 12, 2011)

Background. Gregory Kanahele, Sr., his son, Kanahele, and his daughter, Trishalynn Kanahele, sued James Han. Kanahele was crossing the street while pushing his motor scooter in a crosswalk. James Han drove through the crosswalk and hit him. At trial, Han testified that his side mirror hit Kanahele. Trishalynn and Gregory, Sr. saw the accident. The Kanaheles all sued Han alleging negligence and sought damages for pain, suffering, emotional distress, and loss of enjoyment of life. At trial, Kanahele's doctor testified that the handlebar of the motor scooter went through Kanahele's cheek and it had to be repaired with surgery. It was unclear if he suffered disfigurement. There was evidence, however, that Kanahele was in distress and pain after the accident and prior to the surgery. The total cost of Kanahele's treatment came to around $12,000.

The jury found that Kanehele was injured, but the other plaintiffs were not. The jury also found Han negligent and that his negligence was a legal cause to Kanahele's injuries. However, they also found Kanehele and his father negligent and legal causes to Kanahele's injuries. They found Han 45% negligent, Gregory Sr. 45% negligent, and Kanehele 10% negligent. As for the award, they found the $12,000 in special damages and awarded zero in general damages.

The parties held a bench conference. Both agreed that the verdict was defective. Han wanted the court to resubmit the verdict for further deliberation on damages. Kanahele wanted a new trial. The court decided to order the jury back into deliberation with a special instruction that its damages award was inconsistent with the law because there must be some general damages after a finding of negligence and special damages. The court also submitted a special verdict form listing the $12,000 in special damages, but leaving the general damages blank. During deliberation, the jury asked what the minimum award could be. The parties agreed that they would not provide that answer and tell the jury to look to its instructions. Five minutes later, the jury awarded $1.00 in general damages.

The Kanaheles moved for a new trial on the grounds that the $1.00 in damages was still inconsistent. The motion was denied and the court deducted the fault percentages leaving Kanahele with $6,754.77. Han appealed and the Kanaheles cross-appealed. The ICA affirmed and the Kanaheles applied for a writ of certiorari.

Procedural Matters on a Cert. Petition. Although the HSC accepted certiorari over the objections of Han, the HSC took the time to reject Han's arguments against accepting cert. This is rare. Most of the time, an application is rejected or accepted without explanation.

HRAP Rule 28 applies to Briefs, not Applications for Cert. Han argued that the application for cert. should have been rejected because under the Kanaheles' "Statement of Facts" section, there were four paragraphs describing the accident that did not cite back to the record on appeal. Han relied on Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(3), which requires that an opening brief to contain "a concise statement of the case" with references to the record and transcripts. The HSC rejected this argument because the facts without reference to the record described matters that were not in dispute: Kanahele was crossing the street when Han hit him and Kanahele was hurt. The HSC also noted that Han pointed to no cases that dismissed an appeal based on non-compliance with HRAP Rule 28(b)(3). Moreover, the HSC noted that it has the discretion to accept appeals pursuant to HRAP Rule 2, which gives appellate courts the power to suspend the procedural rules upon good cause shown or in the interest of expediting the decision. Moreover, the HSC noted that it has a "policy of affording litigants the opportunity to have their cases heard on the mertis[.]" Schefke v. Reliable Collection Agency, Ltd., 96 Hawai'i 408, 420, 32 P.3d 52, 64 (2001).

HRAP Rule 28 v. HRAP Rule 40.1. The HSC, in rejecting Han's procedural argument, did not cite HRAP Rule 40.1. Rule 28 regulates briefs. And that requires references to the record on appeal. HRAP Rule 40.1, however, regulates applications for writs of certiorari. It requires "a short statement of the case containing the facts material to the consideration of the questions presented[.]" The rule does not expressly require references to the record on appeal or even transcripts. That said, it's always a good idea to let the court know where in the record your factual assertions are.

Okay, so Once a jury Awards Specials, it has to Award Generals . . . but what's the Remedy? A "verdict which awards the plaintiff special damages but no general damages for pain and suffering is generally regarded as improper[.]" Dunbar v. Thompson, 79 Hawai'i 306, 314-15, 901 p.2d 1285, 1293-94 (App. 1995). The remedy for this impropriety may be a new trial to determine general damages. See Powers v. Johnson, 562 So. 2d 367, 370 (Fla. Dist. Ct. App. 1990); Smith v. Uhrich, 704 P.2d 698, 699-700 (Wyo. 1985).

However, if the jury is still available, the trial court has the discretion to resubmit the verdict and determine general damages. Duk v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1058 (9th Cir. 2003). Allowing the jury to "correct its own mistakes conserves judicial resources and the time and convenience of citizen jurors, as well as those of the parties[.]" Id. Here, the HSC held that the court did not abuse its discretion by having the jury re-deliberate the issue of general damages.

Nominal Damages are not General Damages. The HSC agreed that the $1.00 award was "the symbolic equivalent" to no award and was thus still improper. "Nominal damages means no damages at all[.]" Hall v. Cornett, 240 P.2d 231, 235 (Or. 1952). It is a "trifling sum awarded when no legal injury is suffered but there is no substantial loss or injury to be compensated[.]" Black's Law Dictionary 447 (9th ed. 2009). According to the HSC, when a jury awards special damages, but nominal general damages, if there is "sufficient evidence to support an award for pain and suffering[,]" the verdict is still inconsistent as if there were no damages. Walsh, 80 Hawai'i at 194, 907 P.2d at 780. Here, the HSC held that there was sufficient evidence showing pain and suffering and that there should be an award for actual general damages. Kanahele's doctor and Han's testimony provided sufficient evidence along with the medical invoices showed enough that Kanahele experienced pain and suffering.

Three Exceptions. There are exceptions to the no-generals-even-though-the-jury-awarded-specials rule. A zero general damages award may stand even when there are special damages when (1) the evidence showed "a dispute over the amount of the claimed special damages" so that the zero-general-damages award is "evidence of the jury's intent to include in the special damages award an amount for pain and suffering"; (2) there is "no probative evidence that the plaintiff incurred pain or suffering"; or (3) the only evidence of the pain and suffering comes from the subjective testimony of the plaintiff, "which the jury could reasonably have concluded was exaggerated or lacking in credibility." Dunbar, 79 Hawai'i at 361, 901 P.2d at 1295. According to the HSC, none of these exceptions applied here. Han even conceded that the verdict was inconsistent. And so, the HSC remanded the case for a new trial on damages.

"Symbolic Equivalent" or a Slippery Slope? After being instructed that the jury had to award something to the plaintiff, it came up with $1.00. The HSC held that this award was a nominal general damages award because "nominal damages may not exceed $1.00." Minatoya v. Mousel, 2 Haw. App. 1, 6, 625 P.2d 378, 382 (1981). Thus, the nominal damages are the "symbolic equivalent" of no damages and a new trial is needed. But was it nominal? What if that was what the jury believed was ample compensation for pain and suffering? What if the jury comes up with $2.00? It may be more than nominal damages, but is it still the "symbolic equivalent" of no award? Where do we draw the line?

Monday, October 3, 2011

Calling Defendant "Habitual" OUI Offender won't cut it

AFFIRMED!

State v. Walker (ICA September 30, 2011)

Background. Samuel Walker was charged with habitually operating a vehicle while under the influence of an intoxicant. HRS § 291E-61.5. The charge simply alleged that Walker was "a habitual operator of a vehicle while under the influence of an intoxicant[.]" Walker objected to the sufficiency of the charge prior to verdict, but was found guilty of the offense. He appealed.

Liberal Construction does not apply. The ICA held that because Walker objected to the sufficiency of the charge prior to the verdict, the liberal construction did not apply. The "liberal construction standard is limited to construing indictments, when the issue is only raised after trial." State v. Motta, 66 Haw. 89, 94, 657 P.2d 1019, 1022 (1983).

Charging Instruments must Apprise Defendant of the Offense AND Establish Jurisdiction. The accused has the right "to be informed of the nature and cause of the accusation." Haw. Const. Art. I, Sec. 14. The charging instrument must also allege sufficient facts establishing jurisdiction. State v. Stan's Contracting , Inc., 111 Hawai'i 17, 32, 137 P.3d 331, 346 (2006); HRS § 806-34. See also State v. Kekuewa, 114 Hawai'i 411, 424, 163 P.3d 1148, 1161 (2007) ("an oral charge, complaint, or indictment that does not state an offense contains within it a substantial jurisdictional defect").

Statutory terms Departing from Commonly-Understood Meanings must be Alleged in the Charging Instrument. The ICA turned, inter alia, to State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), in which the HSC held that the failure to include the statutory definition of the term "operate" in the charge of operating while under the influence of an intoxicant did not provide adequate notice of an essential element in the offense--that the State must prove that the defendant was driving on a public road or highway. Id. at 395, 219 P.3d at 1182. The HSC explained that the term "operate" is a term of art that departed from the commonly-understood meaning of the word. The ICA also noted that a charging instrument must "be understood by a person of common understanding." HRS § 806-31. Furthermore, alleging a statutory definition in the charging document is necessary "when it creates an additional element of the offense, and the term itself does not provide a person of common understanding with fair notice of that element." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010).

. . . "Habitual Operator" is one of Those Terms. According to the ICA, the issue here was the term "habitual operator of a vehicle while under the influence of an intoxicant" is also a term of art. A "habitual operator" is a person who has three previous convictions of OUI within ten years of the instant offense. HRS § 291E-61.5(b). The commonly-understood meaning of the word "habitual" or "habit" is much more expansive. Random House Webster's Unabridged Dictionary 856 (2d ed. 2001) ("an acquired behavior pattern regularly followed until it has become almost involuntary"); Black's Law Dictionary 779 (9th ed. 2009) ("Customary; usual"). According to the ICA, the failure to include this statutory definition rendered the charging document defective.

Proof of "Habitual Operation" is an Essential Element. The ICA noted that the term "habitual" or "habitual operator" alone "does not convey the specificity of the term[.]" Moreover, proof of three pervious prior OUI convictions within ten years of the recent operation under the influence is an essential element to the habitual OUI offense that must be proven at trial. See State v. Ruggiero, 114 Hawai'i 227, 239, 160 P.3d 703, 715 (2007); State v. Domingues, 106 Hawai'i 480, 107 P.3d 409 (2005); State v. Kekuewa, 114 Hawai'i 411, 163 P.3d 1148 (2007). Thus, it is an essential element that must be adequately alleged in the charging instrument.

Chief Judge Nakamura's Dissent. A charge is sufficient when "it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he or she must be prepared to meet." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010). Chief Judge Nakamura believed that the language of the charging instrument was sufficient. It alleged that Walker was a "habitual" OUI offender. For Chief Judge Nakamura, a "habitual" offender is a recidivist--a person with multiple convictions for the same offense. That alone should have given him fair notice of the additional element in the habitual OUI charge. Chief Judge Nakamura wrote that the statutory definition of the term "habitual operator" did not create an element of the offense and the word "habitual" did not depart from the commonly-understood meaning of the word.

Chief Judge Nakamura wrote that Walker's (and implicitly the majority's) reliance on Domingues, Kekuewa, and Ruggerio were unpersuasive. For him, those cases "support the unremarkable proposition that for a charge to be sufficient, the State is required to include in the charge those portions of the offense statute that identify the essential elements of the substantive offense." That line of cases, according to Chief Judge Nakamura, included prior convictions as an element to the offense because proof of the priors enhanced the penalty beyond 30 days jail. This triggers the right to a jury trial and raises grave due process concerns. Walker's offense, on the other hand, raises none of those concerns. Habitual OUI is a felony; thus, "there is no due process concern relating to the ascertainment of the entitlement to a jury trial that would necessitate construing the statutory definition of the habitual offender phrase as part of the substantive habitual" OUI offense.

What about Bryan? Neither the majority nor Chief Judge Nakamura mentioned State v. Bryan, 124 Hawai'i 404, 245 P.3d 477 (App. 2010). In that case, Bryan challenged the sufficiency of a charge alleging the offense of driving while license is suspended or revoked pursuant to an OUI conviction. HRS § 291E-62. It was Bryan's 2d driving-while-license-suspended-pursuant-to-an-OUI-conviction but that was not alleged in the charging instrument. Bryan argued that the prior convictions were essential elements that must be alleged in the complaint. In that case, the ICA agreed. Relying primarily on Domingues, Kekeuwa, and Ruggerio, the ICA held that "qualifying prior . . . convictions are attendant circumstances and an essential offense element that must be alleged in the charging instrument." Bryan, 124 Hawai'i at 414, 245 P.3d at 487. The ICA went even further and noted that in Ruggerio, the HSC maintained its position that prior convictions were elements to the offense even after the legislature kept the offense as petty misdemeanors. Bryan appears to bolster the majority's opinion and it seems like the dissent would have had to distinguish it to maintain its position. After all, how can prior convictions in Bryan be an essential element on one hand while the habitual operator's prior convictions are not? Chief Judge Nakamura simply wrote that it was the "habitual offender phrase, and not its statutory definition, that describes the essential element for the offense." Perhaps Bryan can be distinguished. But there was no need to. None of these issues were not discussed in either opinion.

Wednesday, September 14, 2011

Harmless Error Determined by Weighing Evidence at Trial, not Reasonable Possibility of it Contributing to Conviction

State v. Veikoso (HSC September 12, 2011)

Background. John Veikoso was indicted with eight counts involving sexual assault in the 1st degree, kidnapping, and sexual assault in the 3d degree. The complaining witnesses were two prostitutes. One of the prostitutes testified that Veikoso picked her up near the Long's Drugs and Safeway near Nu'uanu Ave. She agreed to cruise with them and they went up the Pali Highway. They went into a dark neighborhood on the Old Pali Road. Veikoso told her that he could take her back if she was scared. She said she was okay. Soon, however, she did get scared and asked to be taken back. Veikoso took her phone away and hit her in her face and head several times. He grabbed her hair. She was bleeding and lost consciousness. She tried to get out of the car, but Veikoso kept pulling her hair and threatened to hit and even shoot her if she tried to get away. She kept quiet as they drove down the windward side of the Pali. Veikoso said that he would drop her off at a bus stop and give her money to get the bus home. Veikoso, however, passed a bus stop and drove to the Maunawili Elementary School. They pulled into a dark area near a dumpster. Veikoso got out of the car and dragged the woman by her hair her to a bench. He undressed himself and her and they performed sex acts together. Afterwards, he said that he would give back her phone if she went with him to his car. The woman, however, ran away and tried to flag down several cars, until Chad Ogawa stopped. He got a look at the car, took the woman, and drove to a 7-11. Someone called the police. The woman later identified Veikoso and his car. Ogawa testified that he picked up the woman and saw blood on her face and her clothes were torn. She told him that she had just been raped at the school. Ogawa corroborates much of the woman's testimony.

Dr. Lee Wayne Lee testified. Dr. Lee testified that he examined the woman shortly after she was picked up by Ogawa. He examined her to determine if she needed medical attention and to gather forensic evidence. Dr. Lee interviewed the woman as part of the examination. Dr. Lee told the jury that the woman said that Veikoso said she "wouldn't be going home if [she] didn't do what he told [her] to do." Dr. Lee also told the jury that the woman said Veikoso "would shoot [her]" and that she'd "be lucky to go home because most girls don't go home[.]" Dr. Lee then testified about the woman's physical state and the results of his examination.

Veikoso moved to strike Dr. Lee's testimony about the statements that he repeated from the woman. He argued it had nothing to do with his physical examination. The motion was denied. Veikoso was found guilty and he appealed. The ICA, in an unpublished memorandum, concluded that the circuit court erred in admitting Dr. Lee's version of the woman's hearsay statements about Veikoso and that the error was not harmless beyond a reasonable doubt. The prosecution petitioned for certiorari on the grounds that it was not harmless.

The Harmless-Beyond-a-Reasonable-Doubt Standard(s). "Even if the trial court erred in admitting evidence, a defendant's conviction will not be overturned if the error is harmless beyond a reasonable doubt." State v. Machado, 109 Hawai'i 445, 452, 127 P.3d 941, 948 (2006). The error is "examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to the conviction." Id. at 452-53, 127 P.3d at 948-49. Formulated differently, when "there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt, errors in the admission or exclusion of evidence are deemed harmless." State v. Toyomura, 80 Hawai'i 8, 27, 904 P.2d 893, 912 (1995).

The Evidence for Sexual Assault in the First Degree. One of the offenses was sexual assault in the first degree. This requires proof of knowingly causing sexual penetration by "strong compulsion." HRS § 707-700. According to the HSC, there was evidence from the woman herself relating to two separate acts of sexual penetration. There was also testimony from Dr. Lee relating to his actual physical examination, which suggested penetration. Finally, there was Ogawa's observations of a ripped blouse and her statement that she had been raped.

Evidence of "Strong Compulsion." The HSC also examined evidence of a "strong compulsion." A strong compulsion is (1) a threat that "places a person in fear of bodily injury" or fear of kidnapping, (2) a dangerous instrument, or (3) physical force used to overcome a person. HRS § 707-700. According to the HSC, there was evidence of a threat of bodily injury. The woman testified that Veikoso's threaten her with violence if she did not obey him; that he would "shoot" her or hit her again. There was also evidence of physical force from the woman's testimony about how he actually hit her and pulled her hair. This testimony is corroborated by the observations of Dr. Lee and Ogawa. Moreover, there was physical evidence of blood found in Veikoso's vehicle and on his shorts. Finally, there was evidence that the threats and physical force was used to overcome the woman. After she had been hit a few times, the woman stopped trying to escape and complied with Veikoso's demands.

After reviewing all of the evidence presented at trial, the HSC held that there was "overwhelming" evidence showing Veikoso guilty of assault in the first degree.

Evidence of the Other Offenses: Sexual Assault in the Third Degree and Kidnapping. The HSC took the same approach to the other counts. As with sexual assault in the first degree, the HSC held that there was overwhelming evidence supporting the jury's verdict.

Rejecting the ICA's Approach to Harmlessness. The HSC took issue with the ICA's analysis. ICA held that Dr. Lee's statements from the woman were not harmless beyond a reasonable doubt because his testimony "may have tipped the scale in favor of" the woman's credibility. The HSC noted that even if that was true, there was still overwhelming evidence supporting the guilty verdict. For example, "strong compulsion" can be proven with either a threat of violence or actual physical force. Nothing in the erroneous statements, according to the HSC, related to the evidence of actual physical force employed by Veikoso.

What about Arceo? When the HSC explained why the ICA incorrectly held that the error was harmless, it noted that there were alternate ways to establish some of the elements of sexual assault and kidnapping. So what happened to Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996)? A defendant's "constitutional right to a unanimous verdict is violated unless . . . (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. True, there might have been a unanimity instruction. But if the HSC has acknowledged that there was evidence showing alternate ways for the jury to find Veikoso guilty of some of the offenses, and that the erroneously-admitted evidence might have tainted one of those ways, how can it still be considered harmless beyond a reasonable doubt? There's no way to know--unless there was a special verdict form--whether the jurors picked a way that was unrelated to the erroneous statements. For example, there is nothing establishing which form of "strong compulsion" was agreed upon by the jurors to find Veikoso guilty. And yet, the error doesn't seem to be harmless beyond a reasonable doubt. How can this be? How can this explanation be reconciled with Arceo? That answer awaits us for another day.

A Reasonable Possibility or Overwhelming and Compelling Evidence? At first, it seemed as if there were two separate formulations of the harmless error standard. The ICA appears to have to taken the reasonable-possibility-that-the-error-might-have-contributed-to-the-conviction approach. That, however, was rejected by the HSC because it took a different tact. Instead, the HSC weighed all of the evidence underlying the various offenses, and held that there was overwhelming evidence of guilty and that the erroneously-admitted statement was harmless beyond a reasonable doubt. The HSC then fused the two standards together and held that "[i]n that light, there is no possibility of a reasonable nature that the error contributed" to Veikoso's conviction. So are these standards the same? The HSC did not really address the differences in the formulations, but it begs the question: can an error ever give rise to a reasonable possibility that it might have contributed to the conviction even if there was overwhelming evidence of the person's guilt?

It raises other problems too. What if the HSC held that there wasn't overwhelming evidence? What does that do to the propriety of the verdict itself? If a jury found evidence beyond a reasonable doubt, then what is "overwhelming evidence" of guilt? Something more than beyond a reasonable doubt?