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.