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?

Tuesday, September 13, 2011

Using a lack of Evidence to show it did not Happen

State v. Forman (ICA September 8, 2011)

Background. Stephen Forman was charged with unauthorized control of a propelled vehicle. HRS § 708-836. Police found Forman riding a moped on Ala Wai Boulevard. The officers stopped him because the moped's decal was partially missing, which is indicative to them of a stolen moped. Forman told them that he had just rented the moped, but he did not have the paperwork on him. The police traced the moped back to Adventure on 2 Wheels. They also learned that the moped was missing, but not reported stolen.

At trial, Kim Voight of the rental company testified that in order to rent a moped from he company, a renter has to verify that he or she is over 18 years old and provide the company with a driver's license. The renter must also provide a credit card for a deposit, but may actually pay in cash. The customer is then given a contract with a pre-printed number on it, which is subsequently signed by the customer.

The contracts are generated for every moped rental and copies are kept with the company in a safe long after the moped is returned. Voight testified that there were no contracts related to the moped in question were found and no other contracts were missing. The prosecutor also asked Voight if, "based on the absence of these contracts, can you tell if anyone had permission to operate the blue moped[?]" Forman objected, but it was overruled. Voight said that no one had permission. Not even the employees can ride the mopeds.

Forman testified that he had rented the moped from Alfredo Bandalan, who asked for cash rentals and gave him some paperwork, which Forman promptly discarded. Voight on cross-examination confirmed that Bandalan was an employee that he had been fired because "he kept bad paperwork[.]" The jury found Forman guilty.

Bandalan did not testify because he was being held in Kentucky on rape charges. The parties stipulated that they would not refer to any statement Bandalan gave to the police. Forman's counsel filed a motion to withdraw on the grounds that he had provided ineffective assistance of counsel. According to Forman, he had found Bandalan and that Bandalan agreed to testify. Forman told his lawyer, but his lawyer refused to subpoena Bandalan for strategic purposes. The motion to withdraw was granted.

With new counsel, Forman filed a motion for a new trial based on the ineffective assistance of counsel. The motion was denied. The circuit court sentenced Forman to five years prison and Forman appealed.

The Absence of a Business Record. Forman argued that Voight should have never testified about the absence of a contract for the blue moped. Hearsay is not admissible unless it meets an exception provided by rule or statute. Hawai'i Rules of Evidence (HRE) Rule 802. Evidence of the absence of a business record is an exception to the hearsay rule:

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provision of paragraph (6), to prove the nonoccurrence or nonexistence of a matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

HRE Rule 803(b)(7). The record must be "made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness[.]" HRE Rule 803(b)(6).

ICA Turns to Federal Authorities. The ICA turned to federal interpretations of the Federal Rules of Evidence. According to the ICA, because HRE Rules 803 is based on the federal rules, the ICA looked to federal cases. State v. Fukugawa, 100 Hawai'i 498, 511 n. 9, 60 P.3d 899, 912 n. 9 (2002) (federal authorities construing FRE Rules 702 and 703 permissible when interpreting Hawai'i rules "because the HRE are patterned after those rules.").

Foundation for Admitting an Absence of Records to Show Something did not Happen: A Split the Federal Authorities. The ICA noted a split in authorities when it came to the foundation necessary to admit the absence of a business record. Some courts have held that the foundation for admitting the absence of a business record is the same as the foundation for an existing record. United States v. Regner, 677 F.2d 754, 762 (9th Cir. 1982); In re Apex Express Corp., 190 F.3d 624, 635 (4th Cir. 1999); Morris v. B.C. Olympiakos, SFP, 721 F.Supp. 2d 546, 551 (S.D. Tex. 2010); In re Enron Creditors Recovery Corp., 376 B.R. 442, 454 (Bankr. S.D.N.Y. 2007).

Other courts, however, have required a heightened threshold of trustworthiness. Exxon Corp. v. United States, 45 Fed. Cl. 581, 690 (1999) ("when a litigant offers the absence of a business record as proof that an event did not take place, under Rule 803(7), the trustworthiness requirement assumes heightened importance"); United States v. Munoz-Franco, 487 F.3d 25, 39 (1st Cir. 2007).

The Foundation for Using the Absence of a Record to Show an Event did not Occur. The ICA restated federal cases to elicit three "concerns" that must be evaluated before deeming the absence of the record trustworthy enough to prove that the incident did not happen: (1) a qualifying witness must testify that the sought-after record was deemed absent after a thorough or diligent search among the records; (2) there must be a showing that the records searched were sufficiently complete; and (3) if the record is being used to prove that an event did not occur, the event must be the kind that would have been among the searched records.

What about Impartial Record Keeping? Among those federal jurisdictions that have a higher threshold of trustworthiness, the ICA noted that an absent business record cannot be proof that an event did not occur when the records that should have documented the event are impartial or incomplete. Exxon Corp., 45 Fed. Cl. at 691. Moreover, when the record does not record every transaction, it casts doubt on the regularity of the record keeping and whether they can be considered complete. Fury v. Shakespeare Co., 554 F.2d 1376, 1381 (5th Cir. 1977).

. . . This Record was Complete Enough. Turning the facts of this case, the ICA first addressed the particular objection by Forman. Forman did not challenge the diligence of Voight's search of the company records even though her testimony as to what records she searched was "imprecise." Instead, the objection was the records themselves. Forman argued that the records were too incomplete to ensure that the absence of a contract proved that it was never rented to Forman. The ICA rejected this. Even though Voight admitted Bandalan kept bad records, this was too ambiguous. The record, according to the ICA, shows that the company records were complete. There were sequential numbers on the contracts and they were dated near the time Forman was caught with the moped. Moreover, Voight testified that her employees must write a contract for every rental and that they could not be used without a contract.

So what is the Standard now? The ICA recognized a split in federal authority, but it did not expressly adopt one side or the other. Implicitly, however, it seemed to side with the jurisdictions that require a heightened threshold of trustworthiness and offer a three-step foundational requirement. Of course, it did not adopt strong language. Instead of three elements, or even factors, the ICA noted them as "concerns" to be evaluated before admitting the evidence.

Not Ineffective . . . for now. The ICA turned to the claims of ineffective assistance of counsel. The defendant must show "1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Wakisaka, 102 Hawai'i 504, 513-14, 78 P.3d 317, 3216-27 (2003).

Failure to Call a Witness is Usually a Matter of Strategy, but only if There was a Pretrial Investigation. Forman argued that the failure to have Bandalan testify constituted ineffective assistance of counsel. Generally, the decision to not call a witness is a strategic one and "is normally a matter within the judgment of counsel and, accordingly, will rarely be second-guessed by judicial hindsight." State v. Onishi, 64 Haw. 62, 63, 636 P.2d 742, 744 (1981). However, the court will not show deference to counsel where counsel has not established "a foundational factual predicate" from which counsel could base his or her decision to call the witness. State v. Aplaca, 74 Haw. 54, 71, 837 P.2d 1298, 1307 (1992). In other words, the failure "to conduct a pretrial investigation of prospective defense witnesses cannot be classified as a tactical decision or trial strategy." Id. "It is only after an adequate inquiry has been made that counsel can make a reasonable decision to call or not to call" a witness. Id. at 70, 837 P.2d at 1306-07.

Affirming Without Prejudice . . . Here, there was some evidence suggesting that Forman's counsel did not conduct an adequate inquiry as to Bandalan. Bandalan claimed that Forman's counsel did not contact him. The failure to call a witness that would corroborate Forman's testimony may just result in the substantial impairment of a potentially meritorious defense. See State v. Silva, 75 Haw. 419, 443, 864 P.2d 583, 594 (1993). But, according to the ICA, the record was unable to flesh out this matter.

When the record cannot "demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record, [] the appellate court may affirm defendant's conviction without prejudice" to allow an HRPP Rule 40 petition. Id. at 439, 864 P.2d at 592-93. That is exactly what the ICA did here.

Ineffective Because of a Conflict. Forman's other claim of ineffective assistance of counsel stemmed from a conflict of interest. The public defender's office represented Forman and Bandalan at the same time--during Bandalan's extradition proceedings. A conflict of interest arises when a lawyer represents two clients whose interests are "directly adverse" or whose representation may be "materially limited" by the attorney's responsibilities to the other. Hawai'i Rules of Professional Conduct Rule 1.7(a) and (b). According to the ICA, neither were shown here.

The ICA further held that there was no conflict in having the public defender represent Forman in this case and Bandalan for the brief period of time during the extradition proceedings. Forman, according to the ICA, was unable to show how the representation of Bandalan conflicted with his own interests.

Friday, September 2, 2011

Disproving Parental Discipline Defense Requires Extreme Mental Distress, not just Mental Distress

State v. Dowling (ICA August 30, 2011)

Background. Richard Dowling was charged with one count of abuse of a family or household member. HRS § 709-906. At trial, Dowling's son was shown a series of photographs. He said that the photographs depict bruises on his legs. The son testified that he finished vacuuming the house and put the vacuum away in the closet. However, he could not close the door because the rug was stuck under it. The door blocked Dowling from going to his room and Dowling became angry with this son. Dowling asked his son if he caused the door to get stuck. His son repeatedly denied it and said it was the rug. Dowling thought his son was lying. Dowling pushed his son on the shoulder and he fell onto a bed. Dowling hit the son twice on his leg. The son also testified that Dowling might have punched him with a closed fist. The son testified that it hurt a little bit. The son told his great-grandmother about the incident one week later. He said that some of the bruises on his leg were caused by his father, but others were caused by a wheelbarrow when he was cleaning the yard.

The great-grandmother testified that after church services, the son asked if he could come over for lunch. When they got into the car, he started to cry and showed her his bruises. Dowling's wife testified that the son was complaining about having to vacuum the house. She also testified that the son denied three times that he had shoved the closet door stuck. Although she didn't see Dowling hit their son, she did see saw a gesture by Dowling that had her conclude that he did hit him. The son admitted to her that he shoved the door. She told him to continue doing his chores. She admitted seeing bruises a few days later, but he did not seem anxious.

Dowling testified that he saw his son putting the vacuum away and got the door stuck. He confronted his son about it and became angry when he lied to him and his wife. He put him on a bed and spanked him with an open palm.

The family court found the son's testimony more credible. The family court acknowledged the parental discipline defense. The family court also noted that there was no substantial bodily injury, but found that Dowling caused mental distress to his son. The family court found Dowling guilty. He appealed.

Parental Discipline. The parental discipline defense requires the defendant to show (1) the defendant was a parent or guardian; (2) the force was used against a minor for whose care and supervision the defendant was responsible; (3) the use of force was with due regard to the age and size of the minor and was reasonably related to the purpose of safeguarding or promoting the welfare of the minor; and (4) the force was not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage. HRS § 703-309; State v. Crouser, 81 Hawai'i 5, 10-11, 911 P.2d 725, 730-31 (1996). The prosecution must also "disprove beyond a reasonable doubt facts negativing the justification defense." Id.

Extreme Mental Distress, not just Mental Distress. The prosecution must disprove that "[t]he force used [was] not designed to cause or known to create a risk of causing . . . extreme pain or mental distress[.]" HRS § 703-309(1)(b). According to the ICA, the word "extreme" clearly modifies "pain or mental distress." The ICA also noted that the HSC in dicta interpreted the statute to mean extreme mental distress. See State v. DeLeon, 72 Haw. 241, 244, 813 P.2d 1382, 1384 (1991) (pain inflicted by parent "did not come, in degree, anywhere near . . . extreme mental distress"); State v. Crouser, 81 Hawai'i at 12-13, 911 P.2d at 732-33 (prohibited results cannot be "extreme mental distress"). This meant that mere mental distress is not enough. The prosecution must disprove "extreme mental distress."

So What's Extreme Mental Distress? "[E]xtreme mental distress" is not statutorily defined, and there are no Hawai'i cases interpreting the words. However, "[t]he terms 'emotional distress,' 'mental anguish,' and 'mental distress' are synonymous." First Ins. Co. of Hawai'i Ltd., v. Lawrence, 77 Hawai'i 2, 7 n. 9, 881 P.2d 489, 494 n. 9 (1994). Similarly, in Rodrigues v. State, 52 Haw. 156, 172 P.2d 509 (1970), the HSC recognized the tort of negligent infliction of mental distress. In doing so, the HSC held that "a serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." Id. at 173, 472 P.2d at 520. Moreover, according to the ICA, the Legislature cautioned that this parental discipline defense "should be interpreted in light of the age of the child." S. Stand. Comm. Rep. No. 2493, 1992 Senate Journal, at 1121.

None found here. According to the ICA, the family court found that there was only mental distress and there was nothing in the record establishing extreme mental distress was designed to be inflicted on the child. Moreover, even if the family court did employ the proper standard--extreme mental distress--the ICA found that the prosecution failed to establish evidence disproving that his conduct was designed to inflict extreme mental distress.

The Force was not Excessive. The force used by the parent must also be given "with due regard to the age and size of the minor and [be] reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct[.]" HRS § 703-309(1)(a). Dowling presented evidence that his son had repeatedly lied to him and he spanked him. It would seem that once that was established, the burden would shift to the prosecution to disprove the defense. The ICA turned to State v. Matavale, 115 Hawai'i 149, 166 P.3d 332 (2007), where the HSC held as a matter of law that the prosecution failed to disprove the parental discipline defense. In that case, a mother hit her daughter with a plastic backpack, clothes hanger, and the flat side of a brush leaving a few marks and bruises. Id. at 151-54, 166 P.3d 324-27. On the other hand, in State v. Miller, 105 Hawai'i 394, 98 P.3d 265 (App. 2004), the viciousness of the father's attack on his child--pulling hair, punches to the face, and body blows--"severed any relationship between the use of force and the welfare" of the child. Id. at 395, 98 P.3d at 266.

In comparing the two cases, the ICA concluded that this case was much closer to Matavale than Miller. It acknowledged that the use of force was a "gray area" that some would find inappropriate. But "gray areas are not resolved by criminalizing such parental discipline."

The Bookends of Reasonableness. The ICA examined the issue of whether the conduct was reasonable or sufficiently linked to the welfare of the child. It presented two very different cases. In Miller, you have a vicious attack that severs any relationship between the use of force and the need for discipline. On the other end you have Matavale, which the HSC had approved of as a matter of law. For the ICA, all it had to do was line the facts according to these two bookends. And it simply cut much closer to the Matavale side of the spectrum.

Chief Judge Nakamura's Concurrence and Dissent. Chief Judge Nakamura believed that the family court misapplied HRS § 703-309(1)(a). He also agreed with the majority that there was insufficient evidence establishing that Dowling's use of force resulted in mere "extreme mental distress." However, Chief Judge Nakamura believed that the should be a new trial to determine whether the prosecution could disprove that Dowling's use of force was "reasonably related to the purpose of safeguarding or promoting the welfare of the minor[.]" HRS § 703-309(1)(a). For the force to be "reasonably related," it "must be both reasonably proportional to the misconduct being punished and reasonably believed necessary to protect the welfare of the recipient." State v. Matavale, 115 Hawai'i at 163, 166 P.3d 336. Determining "reasonableness or excessiveness of physical punishment given a child by a parent is determined on a case-by-case basis and is dependent on the particular circumstances of the case." Id. at 165, 166 P.3d at 388.

Whether Dowling's use of force was reasonably proportional to the child's misconduct and reasonably believed to be necessary to protect the child's welfare is for the factfinder to decide. Chief Judge Nakamura recognized that the evidence could result in an acquittal. But the test for the sufficiency of the evidence is whether there was substantial evidence to support the verdict viewed in the light most favorable to the prosecution. State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998). Viewed in the light most favorable to the prosecution, Chief Judge Nakamura believed there was sufficient evidence supporting the family court's verdict. Thus, Chief Judge Nakamura would have vacated the conviction and remanded for trial. In a footnote, Chief Judge Nakamura wrote that the prosecution "only presented sufficient evidence to disprove the parental discipline based on HRS § 70[3]-309(1)(a) and not based on HRS § 70[3]-309(1)(b). For him, the retrial would be limited to disproving parental discipline based on paragraph (a).

How Many Parental Defenses are there? The Chief Judge disagreed with the majority that it should have simply reversed the conviction based on insufficient evidence. He wrote that there were two possible forms of the parental discipline defense and that the family court only ruled on one, albeit erroneously. For the Chief Judge, parental discipline could be a use of force that did not result in extreme pain or mental distress under HRS § 703-309(b), or it could be the use of force that was designed to be reasonably proportional to the misconduct under paragraph (a).

The statute, however, identifies the paragraphs in the conjunctive. It seems that the use of force must be reasonable proportional to the child's misconduct and it cannot be designed to result in extreme pain or mental distress. HRS § 703-309. The majority sort of takes this position. The majority read the paragraphs as two necessary elements to the defense. Thus, the family court erred in finding sufficient evidence to disprove the defense that Dowling's force was not designed to result in extreme mental distress. If that is necessary to defeat the defense, then that could have ended the analysis. But instead, the majority moves on to address the other part of the defense: whether there was sufficient evidence to disprove that Dowling's force was reasonably related to the son's misconduct. Was that necessary if both need to be disproved?

Thursday, September 1, 2011

HSC: A Police Chase is one long Seizure

State v. Tominiko (HSC August 26, 2011)

Background. Robert Tominiko was charged with operating a vehicle while under the influence of an intoxicant (HRS § 291E-61) and driving without motor vehicle insurance. The complaint alleged that in the OUI took place on August 2, 2008 in Honolulu, but it did not allege that it took place on a public roadway. The other count alleged that the driving took place on the same day and in the same place, and that it did take place on a public street, road, or highway.

Tominiko did not object to the sufficiency of the complaint. The no-insurance count was dismissed. Tominiko, however, moved to suppress evidence on the grounds that the police officer did not have reasonable suspicion to detain him.

At the hearing on the motion, Officer Antwan Stuart testified he was on duty around midnight, when he was dispatched to investigate a report of a group of people arguing at an intersection in Kalihi. He approached a group of about 15 to 20 people at the intersection drinking beer and soda, and eating. People started to pick up their things and run or walk away when he arrived. Tominiko did not leave in a hurry.

Officer Stuart approached Tominiko as he walked to his car, and asked for his identification. He explained that he wanted to question Tominiko about whether a fight or argument did take place. Tominiko mumbled something, kept walking, got into his car, and tried to start it. Officer Stuart followed Tominko and ordered him out of the vehicle. Tominiko ignored him, started his car, and slowly drove away. He got about seven feet before traffic forced him to stop.

Officer Stuart approached Tominiko's vehicle and shined a flashlight into the car. He saw two empty 40-oz. of Olde English in the car. Officer Stuart ordered Tominiko to turn off his car and provide an ID. Tominko said he left his license at home, but he had a state identification card.

On cross-examination, Officer Stuart admitted that he could not determine if there had been an argument. No one was fighting when he arrived. And he could not remember if Tominiko was drinking beer. The district court denied the motion to suppress. Tominiko was found guilty. The ICA affirmed.

Sufficiency of the Charge. When there is no objection to the sufficiency of the pleading before the trial court, the appellate courts review the pleading under a liberal construction standard. State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019 (1983). The court "will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime." Id. Under this standard, a single count "can be reasonably construed to charge a crime . . . by [an] examination of the charge as a whole." State v. Elliot, 77 Hawai'i 309, 312, 884 P.2d 372, 375 (1994).

No Objection, No Allegation of Public Street or Highway, No Problem. Tominiko argued for the first time on appeal that the OUI count did not allege that it took place on a public street or highway, and, thus, it was defective. State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009). The HSC, however, noted that unlike Wheeler, there was no objection raised below and under the liberal construction approach, the court examined the charge as a whole and the two counts can be read together. Both counts relate to the driving a motor vehicle on August 2 in Honolulu. The HSC reasonably inferred that they refer to the same incident and thus, the OUI charge infers that it took place on a public street or highway.

Dismissal Doesn't Matter. The HSC noted that the dismissal of the no-insurance count, which included the crucial public-highway language, was irrelevant in examining the sufficiency of the pleading. First, this is still the liberal construction approach and the HSC is afforded wide latitude in construing the complaint. Secondly, when liberally construed, Tominiko was afforded notice that he was being charged with conduct taking place on a public highway. This was enough for the majority on the HSC.

Seizure Arose When Police Ordered Defendant out of the car. The state and federal constitutions confer a right to be free from unreasonable searches and seizures. Haw. Const. Art. I, Sec. 7; U.S. Const. Am. IV. Under the Hawai'i Constitution, a "person is seized if, given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave." State v. Kearns, 75 Haw. 558, 566, 867 P.2d 903, 907 (1994). Here, the HSC, held that Tominiko was seized when the police officer commanded him to get out of his car. No reasonable person, according to the HSC, would have felt free to leave when the officer ordered Tominiko to get out of his car.

. . . And he had no Reasonable Suspicion to do so. "[T]he police may temporarily detain an individual if they have a reasonable suspicion based on specific and articulable facts that criminal activity is afoot." Id. at 569, 867 P.2d at 908. "The ultimate test in these situations must be whether from the facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate." State v. Melear, 63 Haw. 488, 493, 460 P.2d 619, 624 (1981). Whether a police officer had reasonable suspicion to stop someone is based on a totality of the circumstances. State v. Spillner, 116 Hawai'i 351, 357, 173 P.3d 498, 504 (2007).

Reasonable Suspicion is for one, not all. According ot the HSC, the police did not have evidence that Tominiko--as opposed to others in his group--had committed or was about to commit a crime. See, e.g., Chandler v. Miller, 520 U.S. 305, 313 (1997) (reasonable suspicion must be an "individualized suspicion of wrongdoing."). Officer Stuart might have seen some people with beers, but he did not see Tominiko. He also didn't see anyone fighting or making unreasonable noises. Moreover, the anonymous call that a group of people were arguing did not confer reasonable suspicion to stop Tominiko. A stop based on an informant "may . . . be predicated upon an informer's word, provided [that] the information carries enough indicial of reliability." State v. Temple, 65 Haw. 261, 270, 650 P.2d 1358, 1364 (1982). According to the HSC, the call was not backed by Officer Stuart's observations. There was nothing the officer saw that suggested Tominiko had been fighting or arguing.

Walk, Don't Run. The HSC also noted that Tominiko's walk to his car was not reasonable suspicion of any criminal activity. "[T]he mere act of avoiding confrontation does not create an articulable suspicion." State v. Heapy, 113 Hawai'i 283, 294, 151 P.3d 764, 775 (2007). The HSC distinguished this case from Melear, where the defendant's flight from the police arose to probable cause. The HSC noted that in Melear, the defendant ran away after the police asked him to stop and show identification. But "[i]n this case, Tominiko mumbled something, walked to his car, and attempted to start it. Officer Stuart testified that Tominiko was the only person in the crowd that did not leave in a hurry."

So if you were to run away from a police officer that wanted your identification, that's probable cause. But here, if you simply mumble something and walk away, it's not. Like swimming pool rules: walk, don't run.

Two Seizures or just one? The HSC next took on the issue of how many seizures actually took place. The ICA concluded that there were two: the first arose when Officer Stuart told Tominiko to stop (and he didn't). The second arose when Tominiko stopped his car and when Officer Stuart caught up to him. The HSC rejected the ICA's conclusion and held that there was a single, unconstitutional seizure.

Under the Hawai'i Constitution, "we must evaluate the totality of the circumstances and decide whether or not a reasonably prudent person would believe he [or she] was free to go." State v. Quino, 74 Haw. 161, 170, 840 P.2d 358, 362 (1992). The HSC, relying on cases from other jurisdictions, held that police pursuit of a person can constitute a single, ongoing seizure. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996); Commonwealth v. Thibeau, 429 N.E.2d 1009 (Mass 1981). According to the HSC, "[i]f a seizure occurs when police officers start to chase a person, a seizure continues when the person runs after disobeying a command to stop." That meant that Tominiko was seized when Officer Stuart told him to stop and he continued to be seized when he took off and when the officer caught up to him. And when Officer Stuart saw the bottles in the car, Officer Stuart in a position he would not have been had Tominiko been free to go. See State v. Poaipuni, 98 Hawai'i 387, 49 P.3d 353 (2002). Thus, any evidence recovered as a result of the seizure should have been suppressed.

The Prosecutor's Saving Grace. In a footnote, the HSC carefully pointed out that this situation would have been quite different if the officer would have observed the contraband regardless of the officer's attempt to seize the person. In other words, prosecutors would have to show that the contraband would have been seen even if the officer hadn't attempted to seize the person.

And even if it were two Seizures, it Still Stays out. The prosecution cannot "use . . . evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police." State v. Fukusaku, 85 Hawai'i 462, 475, 946 P.2d 32, 45 (1997). Even if there were two distinct seizures, the evidence is fruit of the poisonous tree. The ultimate question is "[d]isregarding the prior illegality, would the police nevertheless have discovered the evidence?" State v. Poaipuni, 98 Hawai'i at 393, 49 P.3d at 359. Here, the officer had no evidence justifying Tominiko's arrest until he caught up to him and saw the beer bottles. This evidence obtained after the initial stop is a fruit of the poisonous tree because it was discovered by exploiting Officer Stuart's prior illegal seizure.

Justice Acoba's Dissent and Concurrence. Justice Acoba agreed with the HSC on the suppression issue. However, he disagreed with the majority's analysis on the sufficiency of the pleadings. Justice Acoba pointed out that a deficient pleading is a jurisdictional defect. State v. Cummings, 101 Hawai'i 139, 143, 63 P.3d 1109, 1113 (2003). The charge does more than provide notice of an offense. It must also state an offense in order confer jurisdiction. State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977); State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303. 310 (1995) ("omission of an essential element of the crime charged is a defect in substance rather than form."). Justice Acoba wrote that even under the liberal construction approach, the pleading for the OUI is inadequate. The no-insurance count was dismissed and there was no offense adequately stated that conferred jurisdiction. Justice Acoba turned to cases from other jurisdictions for the notion that once a charge is dismissed, it cannot be used by the factfinder for any purpose. See United States v. Holmes, 672 F.Supp.2d 739 (E.D. Va. 2009); People v. Harvey, 602 P.2d 396 (Cal. 1979); State v. Johnson, 2011 WL 2685606 (Conn. July 19, 2011). So for Justice Acoba, once a charge is dismissed, it cannot be used to construe the other count.

Justice Acoba also took issue with the liberal construction approach based on a failure to object. He pointed out that jurisdiction can and should be raised at any time in the course of a case. State v. Elliot, 77 Hawai'i 309, 311, 884 P.2d 372, 374 (1994). Moreover, as an appellate court, the HSC must make a sua sponte inquiry as to whether it has jurisdiction. If there is a jurisdictional defect, the court must dismiss the case. State v. Graybeard, 93 Hawai'i 513, 516, 6 P.3d 385, 388 (App. 2000).

The Remedy? Tominiko II? Justice Acoba's remedy is telling. Because there was no jurisdiction, he would have remanded the case back to the district court with an order to dismiss without prejudice. That would have allowed them to bring the entire case back again. It would have meant the defense would have brought another motion to suppress and, if it was denied, it would have wound its way back up the HSC.