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


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.