Monday, March 26, 2012

A Rejected Offer (After a full and Fair Trial) may be Ineffective Assistance of Counsel

Lafler v. Cooper (SCOTUS March 21, 2012)

Note. This is the companion case to Missouri v. Frye.

Background. Anthony Cooper fired a gun at Kali Mundy's head. He missed and Mundy fled. Cooper chased Mundy and fired at her some more. She was hit in her buttock, hip, and stomach, but survived. Cooper was charged with assault with the intent to murder, possession of a firearm in the commission of a felony, and a misdemeanor for possession of marijuana. Twice the prosecution offered to dismiss two charges and recommend at sentencing 51 to 85 months for the other two in exchange for a guilty plea. Cooper admitted guilt to the court and appeared to be ready to take the deal. But his attorney persuaded him to reject the offer after opining that they would be unable to prove murderous intent because Mundy was shot below the waist. Cooper then rejected the offers. On the first day of trial, the prosecution made a third offer on much favorable terms; again it was rejected. Cooper was found guilty as charged and sentenced to a mandatory minimum of 185-360 months in prison. Cooper argued in a postconviction hearing that his counsel's advice to reject the plea offers constituted ineffective assistance of counsel. The trial court rejected the claim the Michigan Court of Appeals affirmed, and the Michigan Supreme Court refused to review it. Cooper filed for habeas relief. The federal courts granted relief and ordered "specific performance" of Cooper's original plea agreement.

The Accused has the Right to Effective Assistance of Counsel in Plea Negotiations. The right to effective assistance of counsel guaranteed in the Sixth Amendment extends to plea-bargaining negotiations. Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Padilla v. Kentucky, 559 U.S. __ (2010); Missouri v. Frye, __ U.S. __ (2012). Under the two-prong Strickland analysis, the defendant must show (1) counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland, 466 U.S. at 688.

A Huge Concession. The first prong requires the defendant to identify deficient performance by counsel. The defendant must show "that counsel's representation fell below an objective standard of reasonableness." Id. Here, all parties agreed that Cooper's trial counsel was "deficient when he advised [Cooper] to reject the plea offer on the grounds he could not be convicted at trial." Given that concession, the SCOTUS did not examine the first prong and focused solely on the prejudice prong.

Later, the majority backed away from this concession by agreeing with the Court of Appeals for the Sixth Circuit that "an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." But because of the concession, the SCOTUS did not address the question and assumed that the first prong had been met.

Prejudice. Prejudice is established when the defendant shows "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The SCOTUS took the same standard from Frye.

[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of the intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

The SCOTUS agreed with the lower federal courts that Cooper adequately demonstrated prejudice. Cooper showed that but for counsel's deficient performance, there is a reasonable probability that he and the trial court would have accepted the deal. As a result of rejecting the offer, his sentence was much more severe.

Prejudice can Arise Despite a Full and Fair Trial. In adopting this standard, the SCOTUS rejected the argument by the prosecution and the Solicitor General that no prejudice can arise if the defendant is later convicted at a fair trial. This is a case, according to the SCOTUS, where the trial verdict did not cure the error. In fact, as a result of the trial, Cooper received a much more severe sentence. "Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence."

So What's the Remedy? Sixth Amendment remedies should be "tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." United States v. Morrison, 449 U.S. 361, 364 (1981). The remedy is designed to cure the error without providing a windfall to the defendant or squander the prosecution's resources. When a defendant rejects a plea offer as a result of counsel's ineffective assistance, the SCOTUS noted two possible remedies.

Resentencing or "Reoffering"? One remedy may be nothing more than imposing the sentence the defendant would have received. This, according to the SCOTUS, would usually arise in cases where the offer does not propose amending the charge, and it simply has a sentencing recommendation. In other words, resentencing would be the proper remedy. The other remedy may be requiring the prosecution to reoffer the plea proposal. That remedy is the kind where the offer proposed to amend the charged offenses. In that case, the judge would have discretion to vacate the jury's verdict and conviction, or leave the conviction undisturbed and impose a new sentence.

Here, the federal district court ordered "specific performance" of the plea agreement--that is, resentencing. However, the SCOTUS held that the proper remedy--in light of the terms of the plea offer--should be the reoffering of the original plea deal. If Cooper accepts it, the trial court then has the discretion to vacate the conviction and resentence him based on the terms of the agreement, vacate only some of the convictions and resentence, or leave the verdict and sentence as is.

Justice Scalia's Dissent. Justice Scalia highlighted the illogical nature of the conceded error: "Anthony Cooper received a full and fair trial, was found guilty on all charges by a unanimous jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that Cooperis entitled to some sort of . . . relief (perhaps) because his attorney's allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial."

Justice Scalia first took aim at the conceded error. He wrote that as there is no right to enter a plea bargain, there should be constitutional deficiency in rejecting a plea offer. It was that simple for him. Although attorneys may err and provide bad advice, it need not be a constitutional violation. As for the second prong--the prejudice--Justice Scalia wrote that the ultimate test for prejudice is whether it the error was fundamentally unfair. Here, for Justice Scalia, it was not. Cooper had a fair trial.

Justice Scalia turned to the remedy itself. He wrote that the remedy was "unheard-of in American jurisprudence." He noted that why should the remedy be a reoffering of the plea agreement and waiting to see if the defendant accepts it based on a finding that the defendant would have accepted it but for the deficient performance of counsel? Why not skip that step all together? Here's how he summarized his thoughts on the majority's remedy:

I suspect that the Court's squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway. The defendant has been fairly tried, lawfully convicted, and properly sentenced, and any "remedy" provided for will do nothing but undo the just results of a fair adversarial process.

The Chief Justice and Justice Thomas joined in this part of the opinion.

Justice Alito's Dissent. Justice Alito wrote separately to address the problem of requiring the prosecution to reup an old plea offer. It is unfair to revive the offer once "new information about a defendant's culpability comes to light after the offer is rejected[.]" It is also unwise because a rejected offer leads to a drain in prosecutorial resources. Justice Alito wrote that the Court's interpretation of the Sixth Amendment is "unsound."

Failure to Inform Defendant of Formal Plea Offer May be Ineffective Assistance of Counsel

Missouri v. Frye (SCOTUS March 21, 2012)

Background. Galin Frye was charged with driving with a revoked license. This was his third offense so it was a felony with a potential sentence for four years prison. The prosecutor sent to Frye's counsel a written plea offer. The prosecutor gave Frye a choice: if he pleaded guilty to the felony, the prosecution would recommend a three-year sentence and 10-days jail, but would not recommend probation. The other option was that the prosecutor would reduce the charge to a misdemeanor and a 90-day jail sentence. Frye's attorney did not inform him about the plea offers and the offers expired. Just before the preliminary hearing, Frye was arrested again for driving with a revoked license. He pleaded guilty without an agreement. The prosecutor recommended a 3-year sentence, made no recommendation for probation, and 10-days jail. The judge sentenced Frye to prison for three years. Frye filed for post-conviction relief alleging ineffective assistance of counsel. Frye alleged that had he known about it, he would have pleaded to the misdemeanor. After the trial court denied the motion, the Missouri Court of Appeals reversed based on ineffective assistance of counsel.

The Right to Effective Assistance of Counsel Extends to Plea Bargains. The "Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." United States v. Wade, 388 U.S. 218, 227-28 (1967). The accused must be provided with effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Padilla v. Kentucky, 559 U.S. __ (2010). The SCOTUS--relying primarily on secondary sources and law review articles--extolled the centrality of plea bargaining in today's American justice system. It pointed out that 97 percent of all federal prosecutions and 94 percent of all state prosecutions result in guilty pleas without a trial. "To a large extent . . . horse trading [between the prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." Scott & Stunz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). Thus, according to the SCOTUS, "defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." The SCOTUS clearly and affirmatively held that the accused must have effective assistance of counsel during plea negotiations.

The Constitutional Right to be Informed of a Formal Plea Offer. The SCOTUS's holding was seemingly clear: "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." So when Frye's counsel allowed the offer to expire without telling him about it, Frye's counsel did not render effective assistance of counsel.

And now the Hard Part . . . Establishing Prejudice. Having established the first prong of the Strickland v. Washington, 466 U.S. 668, 686 (1984), test, the SCOTUS moved on to address the second and more difficult area: the prejudice that must be shown by the defendant.

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.

In applying this standard to Frye's case, the SCOTUS agreed that there was no real question that had Frye knew about the offers, he would have taken it. After all, Frye pleaded guilty to a felony without any offers in place. It is reasonable to infer that had he known about the misdemeanor and 90-days jail, he would have taken it. But the SCOTUS remanded the case back to the Missouri court for Frye to show that once he had entered that plea, the prosecutor could not have cancelled it or the trial court was bound by it.

Justice Scalia's Dissent. Justice Scalia wrote that it was unwise to constitutionalize plea bargaining. He took aim at the duty articulated by the majority. It is unclear to determine just what exactly constitutes a formal offer of settlement. "What if," he wrote, " an attorney's personal style is to establish a reputation as a hard bargainer by, for example, advising clients to proceed to trial rather than accept anything but the most favorable plea offers?" Does this style violate the Sixth Amendment now? He notes that this case is fairly clear, but criticizes the majority for simply ignoring complications for a later day. "It will not do simply to announce that they will be solved in the sweet by-and-by."

Justice Scalia's real criticism here is in the second prong--the prejudice. He wrote that the standard for prejudice is a "process of retrospective crystal-ball gazing posed as legal analysis." First, we have to guess if the defendant would have taken the offer had he or she known about it. In this case, that is easy to show, but it might not always be that way in the future. Second, we have to guess whether the prosecution would have stuck with the agreement once accepted and finally, we have to "estimate whether the trial court would have approved the plea agreement." For Scalia, "it is extraordinary to make a defendant's constitutional rights depend upon a series of retrospective mind-readings as to how that discretion, in prosecutors and trial judges, would have been exercised." On a broader point, Justice Scalia wrote that it is wholly inappropriate to use the Sixth Amendment to regulate plea bargaining. Let the legislatures do it, not the courts. Chief Justice Roberts, Justice Thomas, and Justice Alito joined.

Saturday, March 24, 2012

Unanimity Instruction Required when Jury not Informed of Which Acts Correspond to Which Counts

State v. Pecpec (HSC March 20, 2012)

Background. Orlando Pecpec was charged with 25 counts of violation of a protective order. HRS § 586-11(a)(1)(A). The language for all counts were identical except for the date of the alleged offense:

On or about [date], in the City and County of Honolulu, State of Hawaii, [Pecpec] did intentionally or knowingly violate the Order for Protection issued in FC-DA No. 08-1-1887, filed on the 15th day of September, 2008 . . . thereby committing the offense of Violation of an Order for Protection.

Counts 1-6 allegedly occurred on October 19, 2009; count 7 on Oct. 22; counts 8-15 and 18-22 on November 6, 2009. Counts 16 and 22-25 allegedly took place on November 7, 2009; and count 17 on November 8.

At trial, the complainant, Pecpec's ex-wife, testified that they were married for ten years and had five children together. On September 15, 2008, she got a protective order against Pecpec. The order expires in 2013. The order prohibited Pecpec from contacting his ex-wife by phone or text messages but permitted contact for attendance of courtroom proceedings and serve "legal documents by mail or through a process server."

She testified that on October 19, 2009, Pecpec left her with six voicemails on her office telephone. She could not recall the specific time or content of the messages. She testified that she received more messages on Oct. 22, Nov. 6, 7, and 8. She recorded the messages and turned them over to the prosecutor's office. They were admitted into evidence as Exhibits 13 through 23. The voicemail left on Oct. 22 was recorded onto Exhibit 23. Exhibits 15-22 were the eight voicemails she received on Nov. 6, 2009. A voicemail on Nov. 7 was recorded on Exhibit 14. Another message on Nov. 8 was recorded on Exhibit 13.

In addition to voicemails, the complainant testified that she received text messages from Pecpec on Nov. 6 and 7. Photographs of the text messages were admitted into evidence as Exhibits 5-12. The complainant testified that Exhibits 5-9 were the four text messages she received on Nov. 6, and Exhibits 10-12 were the three she received the next day.

Neither party requested a unanimity instruction. The family court did, however, instruct the jury that the verdict "must be unanimous." The family court instructed that Pecpec "engaged in certain conduct, namely contacting or threatening [the complainant] by either telephone or recorded message" as the conduct elements in counts 1-17. Each count had a specific date. For counts 18-25, the family court instructed that Pecpec "engaged in certain conduct, namely contacting or threatening [the complainant] by text message" as the conduct elements. During closing argument, the prosecutor matched the admitted exhibit to the charged count. The jury found Pecpec not guilty of counts 1-6 (the voicemails on October 19), but guilty of the remaining 19 counts.

The family court sentenced to one year per count running concurrently except for count 13, which was based on the recorded message in Exhibit 17. The family court explained that that message was particularly egregiousness and sentenced Pecpec to one year in jail running consecutively. Pecpec appealed. The ICA affirmed; Judge Reifurth dissented.

Unanimity Instruction is a Matter of Right in two Situations . . . Pecpec argued that the family court erred in not instructing the jury about a unanimous verdict. The right to a unanimous jury verdict is guaranteed by the Sixth Amendment to the U.S. Constitution and article I, section 5 of the Hawai'i Constitution. State v. Arceo, 84 Hawai'i 1, 30, 928 P.2d 843, 872 (1996). The unanimity instruction comes into play when multiple acts are subsumed into a single count.

[W]hen separate and distinct culpable acts are subsumed with a single count . . . and the defendant is ultimately convicted by a jury of the charged offense, the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (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 elect the specific act upon which it is relying to establish the "conduct" element of the charged offense; 0r (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.

Id. at 32-33, 928 P.2d at 874-75.

Later, the HSC held that the unanimity instruction is required even in cases where there are no distinct and multiple acts in State v. Mundon, 121 Hawai'i 339, 219 P.3d 1126 (2009). The HSC held that when the defendant is charged with two distinct counts, but the jury only finds the defendant guilty of a single count, "there is a genuine possibility that different jurors concluded that [the defendant] committed different acts[.]" Id. at 354-55, 219 P.3d at 1141-42. Thus, "to correct any potential confusion . . . , a specific unanimity instruction should have been given to ensure that the jury understood its duty to unanimously agree to a particular set of facts[.]" Id.

. . . and now the Third Situation. The HSC noted that in Mundon the jury acquitted the defendant of one of the charged counts and that the error arose because it was unclear whether the jury understood that it had to be unanimous as to which set of facts constituted the offense. The HSC noted that the inherent problem in this situation is that "a trial court cannot decide to give a unanimity instruction after the jury returns its verdict." Thus, Mundon implies that the unanimity instruction is required "where the number of acts charged is identical to the number of acts offered in evidence, but the jury is not informed as to which act coincides with each count."

Here, Pecpec was charged with 25 counts and there was evidence of each distinct and separate act. However, the record did not show that the jury was informed which act corresponded with each count. The family court's failure to give a unanimity instruction is error.

But it's Harmless Error. Erroneous instructions require a reversal "unless it affirmatively appears from the record as a whole that the error was not prejudicial." Id. at 349, 219 P.3d at 1136. In other words, an error is not harmless beyond a reasonable doubt if there "is a reasonable possibility that error might have contributed to conviction." Arceo, 84 Hawai'i at 12, 928 P.2d at 854. The HSC found the error harmless beyond a reasonable doubt. In this case, the counts to which Pecpec was found guilty directly corresponded to the distinct exhibits admitted at trial. According to the HSC, there was a distinct one-to-one relationship between the counts and the exhibits. It was clear that the jury was unanimous in its decision for each count. This left no reasonable possibility that the failure to instruct the jury on a unanimous verdict contributed to the conviction.

An Attempted Arceo Election? The HSC held that the failure to provide a unanimity instruction was error when the number of acts charged is identical to the number of acts offered into evidence but the jury is not told which act coincides with each count. What about an Arceo election by the prosecutor? Didn't the prosecutor do exactly that during closing argument? According to the HSC, the answer is no. The record "does not reflect that the jury was informed of the act that corresponded with each count." This holding makes the question of what constitutes an Arceo election even more intriguing. The prosecutor did connect the exhibits to the charges:

Now, let's look first at the voice mails. The voice mails are grouped in terms of the dates of incident. Counts [1] through [6] are from October 19, 2009; Count [7] is from October 22; Counts [8] to [15] are November 6; Count [16] from November 7; and Count [17] is from November 8.

Now, you listened to the voice mails. These mails are also associated with these dates. Exhibit 23 is the voice mail from October 22; Exhibit[s] 15 to 22 are from November 6; Exhibit 14 is from November 7; Exhibit 13 is from November 8.

Switching now to the text messages. Counts [18] to [25], they are also grouped in terms of the dates of incident. Counts [18] to [22] are from November 6; Counts [23] to [25] are from November 7. For each of these text messages there are exhibits. Exhibits 5 through 9 are the text messages from November 6; and Exhibits 10 to 12 are the text messages from November 7.

This apparently did not constitute an Arceo election. Grouping the exhibits to a group of counts probably came close, but it still missed the mark. Then again, connecting Exhibit 23 directly corresponding with count 7--the single count alleged on October 22--is not extremely close. Wasn't that good enough? No, according to the HSC. Justice Acoba fleshed this out in his dissenting opinion. An election has to occur at or before the end of the prosecution's case-in-chief. State v. Kassebeer, 118 Hawai'i 493, 509, 192 P.3d 409, 425 (2008). This was too late.

But because it was close, it contributed to the harmlessness of the failure to give the instruction. Does this mean that when the prosecutor attempted to make an Arceo election, but misses the mark--it will most likely be harmless error for the trial court to not give the instruction? Probably. The framework from Arceo may bend here, but it is not broken. An attempted Arceo election like this one certainly makes the error more likely to be harmless. But even then, there are still possibilities where the failure to give the instruction creates a reasonable possibility that the failure to provide the instruction contributed to the conviction despite the prosecutor's failed Arceo election.

The Family Court Abused its Discretion in the Consecutive Sentence. The HSC moved on to review the consecutive sentence. Pecpec argued that the consecutive sentence was improper because which of the many alleged acts on November 6, 2009 constituted Count 13. A criminal sentence must be imposed in relation to the specific offense. HRS § 706-605. Here, the complaint did contain specify any time of day for the eight alleged offenses committed on November 6, 2009. Thus, it is impossible to know whether the jury intended the egregious message on Exhibit 17 to correspond particularly with Count 13. In fact, given the police report numbers on the complaint, Exhibit 17 actually corresponds with Count 10. Thus, the family court erred in sentencing Pecpec in this particular count based on that particular exhibit.

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the majority that the sentence must be vacated, but dissented on all other grounds. Justice Acoba believed that the prosecutor did not elect the specific exhibit that was being offered in support of each count so the family court had to provide a specific unanimity instruction. The failure to give that instruction was not harmless beyond a reasonable doubt. Justice Acoba agreed with Judge Reifurth that nothing prevented an individual juror from concluding that a single exhibit was sufficient evidence to support any or more conviction occurring on that particular day. To avoid this in the future, Justice Acoba wrote that courts should be required to provide an instruction even if there is an election.

Justice Acoba pointed out that the majority's holdings on both issues are inconsistent with each other. The majority seemed to have acknowledged that the verdict for Count 13 was not unanimous because it is impossible to determine what exhibit was agreed upon by the jury to convict him. According to Justice Acoba, "[i]f there cannot be assurance that the verdict was unanimous as to the alleged act on Count 13, the verdict cannot be assured to be unanimous as to a specific act with respect to each of the other counts." Justice Duffy joined.

Saturday, March 10, 2012

Juror Misconduct Should have been a Mistrial--not Switching the Juror

State v. Bailey (HSC March 1, 2012)

Background. Peter Bailey was indicted with four counts of sexual assault in the first degree. HRS § 707-730(1)(b). The circuit court granted Bailey's motion in limine to exclude any evidence of prior criminal convictions at trial. Jury selection lasted several days. After the jury had been selected, however, Bailey moved for a mistrial on the grounds that the courtroom doors had been locked. The circuit court denied the motion and proceeded to trial.

The Trial. The minor complainant testified at trial. She testified that she knew Bailey through the singing activities at their church. One night, Bailey called her and asked to meet him at the church to practice singing. She got permission from her mother and Bailey picked her up and took her to the church. She testified that Bailey approached her from behind and ordered to engage in various sexual acts. She took off her clothes and did so. Her uncle walked in on them and she put on her clothes and left. She heard Bailey tell her uncle that he had made a mistake. The minor's brother testified that he went to the church that night and saw Bailey and his sister undressed in the copy room. Bailey came out with clothes on, gave him around $18, and told him that he would drop off his sister in about 20 minutes. The brother left the church and ran to get help. The uncle testified too. He testified that the brother told him about what was happening. He ran to the church and confronted Bailey while his girlfriend called 911. At the settling of jury instructions, the prosecution asked for included offenses of attempted sexual assault in the first degree. Bailey objected that that would be inappropriate because there no evidence of an attempt. The circuit court overruled the objection and instructed the jury that if Bailey was not found guilty of sexual assault in the first degree or if the jury could not reach a unanimous verdict, it "must consider" whether Bailey attempted to commit sexual assault in the first degree.

The Deliberations and Special Hearing. After closing argument and during deliberation, the circuit court reminded the alternate jurors not to discuss the case with anyone until they have been dismissed. During deliberations, the jurors requested to speak with the circuit court judge "regarding information that a juror has that has affected our deliberations." The circuit court requested that the jury elaborate. The jury, in a separate communication, informed the circuit court that a juror told them that he knew Bailey had a prior charge which compromised them. They wanted to know how to proceed. Deliberations were suspended and each juror was individually questioned.

The foreperson explained that juror No. 9 told them that Bailey had been charged with attempted murder or something like that. They stopped right away after that. The foreperson added that this information would not affect his ability to be fair and impartial. Juror No. 9 was questioned. He acknowledged that what he did was wrong and that he just blurted it out, and that he did not intend to "cloud anybody's mind." Other jurors testified that they remember what Juror No. 9 said, but tried to block it out or disregard it.

Bailey moved for a mistrial. The prosecution conceded that Juror No. 9's statements were prejudicial and that he should be dismissed. But the prosecution objected to an outright mistrial. The motion was denied, Juror No. 9 was replaced by an alternate, a new foreperson was selected, and deliberations began again. The new jury deliberated for three days. The jury found Bailey guilty of attempted sexual assault in the first degree. Bailey filed a motion for new trial reasserting the same grounds. The motion was denied. Bailey was sentenced to 20 years of imprisonment for each count as well as consecutively for an unrelated case. Bailey appealed, and the ICA affirmed. Bailey petitioned for certiorari; the prosecution did not respond.

The Shifting Burden in Proving (and Disproving) Constitution-Violating Juror Misconduct. "The sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution guarantee the criminally accused a fair trial by an impartial jury. If any juror was not impartial, a new trial must be granted." State v. Kim, 103 Hawai'i 285, 290-91, 81 P.3d 1200, 1205-06 (2003). But not all juror misconduct warrants a new trial; no trial will be granted "if it can be shown that the jury could not have been influenced by the alleged misconduct." Id.

When a defendant claims juror misconduct deprived him or her of the right to a fair trial, the circuit court must first determine if "the nature of the alleged deprivation rises to the level of being substantially prejudiced." State v. Furutani, 76 Hawai'i 172, 180-81, 873 P.2d 51, 59-60 (1994). If it does arise to that level, "a rebuttable presumption of prejudice is raised. The trial judge is then duty bound to further investigate the totality of the circumstances surrounding the alleged deprivation to determine its impact on jury impartiality." Id. To overcome the presumption, the deprivation must be harmless beyond a reasonable doubt. Id. The defendant has to provide prima facie evidence that the deprivation "could substantially prejudice his or her right to a fair trial by an impartial jury," but once the presumption is raised, the burden shifts to the prosecution to prove the harmlessness of the deprivation. Id.

The Juror's Statements about Bailey's Suspected Criminal History Violated Bailey's Right to a Fair Trial. The HSC held that Bailey met his burden of showing prima facie evidence of a deprivation that could substantially prejudice his right to a fair trial by an impartial jury. It was enough to show that there was an improper discussion about his prior record. Thus, the circuit court did not err in investigating further. However, the HSC held that the circuit court erred in finding the discussion harmless beyond a reasonable doubt. This analysis required "an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Tuua, 125 Hawai'i 10, 13, 250 P.3d 273, 276 (2011). The court must also consider the "totality of the circumstances surrounding the alleged deprivation to determine its impact on jury impartiality." Furutani, 76 Hawai'i at 181, 873 P.2d at 60.

The HSC held that Juror No. 9's statement that she did not believe Bailey's statement to the police in this case because of his criminal record was highly inflammatory and prejudicial and it was likely to impact the jurors. Moreover, mentioning that Bailey might have been convicted of or charged with murder has been considered "so prejudicial as to deprive the defendant of his constitutional right to a fair trial." State v. Pokini, 57 Haw. 17, 21, 548 P.2d 1397, 1399-1400 (1976); State v. Hamala, 72 Haw. 289, 291, 834 P.2d 275, 276 (1992). This is also the kind of prejudicial effect that could not be cured by a cautionary instruction. State v. Loa, 83 Hawai'i 335, 354, 926 P.2d 1258, 1277 (1996). In this case, the HSC held that although there might have been sufficient evidence to convict Bailey, the prejudicial effect of Juror No. 9's statements were so prejudicial that it deprived him of the right to a fair trial. The circuit court abused its discretion and the HSC ordered a new trial.

Lesser-Included Offenses of Attempt were Properly Given. The trial court "must instruct juries as to any included offenses when there is a rational basis on the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense[.]" State v. Haanio, 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001). Here, the HSC held that a "rational juror" could conclude that Bailey intended to commit sexual penetration, but failed in doing so. The HSC reasoned that in State v. Behrendt, 124 Hawai'i 90, 237 P.3d 1156 (2010), it held that when there was evidence of both sexual penetration and sexual contact--the kind of conduct needed to prove sexual assault in the 3d degree--there was a rational basis for including that as a lesser-included offense. Id. at 110, 237 P.3d at 1176. Apparently, the same logic applied to attempted sexual assault. So even if there was no sexual contact, but rather a thwarted effort to penetrate, that would be enough to instruct on attempted sexual assault in the first degree.

There was Substantial Evidence of Attempted Sexual Assault 1st. When it comes to evaluating the sufficiency of evidence, "[t]he test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact." State v. Kalaola, 124 Hawai'i 43, 49, 237 P.3d 1109, 1115 (2010). "'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quantity and probative value to enable a person of reasonable caution to support a conclusion." Id. The evidence must be viewed in the light most favorable to the prosecution. Id.

The HSC held that there was substantial evidence supporting the verdict. A person attempts to commit a crime when the person intentionally "engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in the course of conduct intended to culminate in the person's commission of the crime." HRS § 705-500(1)(b). A person commits sex assault in the first degree when the person "knowingly engages in sexual penetration with another person who is less than fourteen years old." HRS § 707-730(1)(b). Thus, the HSC formulated that to find Bailey guilty of attempted sex assault in the first degree the prosecution must prove "(1) Bailey intentionally engaged in conduct; (2) under the circumstances as Bailey believed them to be, the conduct constituted a substantial step in a course of conduct; and (3) Bailey intended the course of conduct to culminate in sexual penetration with" the minor. According to the HSC, there was sufficient evidence to support the conviction of attempted sex assault in the first degree.

Friday, March 2, 2012

Parent's Constitutional Right to Spank Kids a Defense in TRO Hearing

Hamilton v. Lethem (HSC February 2, 2012)

Background. Lily Hamilton filed an ex parte petition for a temporary restraining order on behalf of her daughter, Amber. The TRO was filed against Christy Lethem, the father, and prohibited any contact with Amber. The TRO was granted.

At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said that he was going to pull her out of school and that her younger sister was better than her.

Lethem testified at the hearing. He admitted that he had had a strained relationship with Hamilton and that they often argued because Amber was misbehaving. He spoke about the three incidents. He said that he never hit his daughter in the face, but did admit to hitting her shoulder in order to discipline her. As to the second incident, Lethem said that he was arguing with Amber and she tried to stand up and walk away from him. That was when he reached over and had her sit back down. He denied threatening to hit her. As to the third incident, Lethem denied blaming financial problems on his daughter.

The family court concluded that the parental discipline from the Hawai'i Penal Code, HRS § 703-309, was relevant and might extend to these proceedings. But the family court ruled that it need not examine that issue. The family court kept the TRO in place for 90 days. Lethem appealed and the ICA initially refused to hear the case on mootness grounds. However, the HSC, in Hamilton v. Lethem, 119 Hawai'i 1, 193 P.3d 839 (2008), introduced the collateral consequences exception to mootness and ordered the ICA to resolve the issues raised. The ICA, in a published opinion, held that the parental discipline defense does not apply to family court TRO proceedings and that the TRO statutes and procedure in HRS Chapter 586 did not infringe on the constitutional right to raise children. Lethem appealed again.

The Right to Discipline Children is Guaranteed in the Hawai'i Constitution. A parent's constitutional interest in the care, custody, and control of his or her children includes the right to discipline their children. In re Doe, 99 Hawai'i 522, 532, 57 P.3d 447, 457 (2002); Troxel v. Granville, 530 U.S. 57, 65 (2000). According to the HSC, this right would encompass corporal punishment. Ingraham v. Wright, 430 U.S. 651, 661 (1977) ("Professional and public opinion is sharply divided on the practice . . . , and has been for more than a century. Yet we can discern no trend toward its elimination."); see also State v. Crouser, 81 Hawai'i 5, 14, 911 P.2d 725, 734 (1996) (in criminal prosecutions, "parents have a privilege to subject children to reasonable corporal punishment"). Here, the HSC expressly held that "the right to discipline is therefore inherent in the right to care, custody, and control one's children, as guaranteed by the Hawai'i Constitution."

The TRO Procedures under HRS Chapter 586. The HSC began with the ICA's holding that the TRO procedures did not violate the due process clauses of the state and federal constitutions. Here's how the TRO family court procedure works. A petitioner files for an ex parte TRO and one will be granted upon a showing of probable cause that "a past act or acts of abuse have occurred, or that the threats of abuse make it probable that acts of abuse may be imminent." HRS § 586-4(c). The family court has fifteen days to hold a hearing on the TRO to determine whether it should remain in force or extended "unless there is a substantial reason amount to good cause for a delay." Styke v. Sotelo, 122 Hawai'i 485, 491, 228 P.3d 365, 371 (App. 2010). At the hearing, the petitioner has the burden of proof the allegations by a preponderance of the evidence. Kie v. McMahel, 9 Hawai'i 438, 442-43, 984 P.2d 1264, 1267-68 (App. 1999).

"Domestic Violence" in a TRO Hearing Infringes Upon a Parent's Right to Discipline Children. A TRO is granted when there is evidence of "domestic violence." This term includes "physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage." HRS § 586-1. Due process requires that statutes have "sufficient definiteness that ordinary people can understand what conduct is prohibited." State v. Beltran, 116 Hawai'i 146, 151, 172 P.3d 458, 463 (2007). Moreover, a statute cannot "delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis" because it leads to "attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Lethem argued that "domestic abuse" under the TRO statutes is too broad and infringes upon a parent's right to discipline his or her children. Thus, Lethem urged the HSC to extend the parental discipline defense from the Hawai'i Penal Code (HRS § 703-309) as a defense in family court TRO proceedings.

Introducing the Reasonable Parental Discipline Defense in TRO Proceedings. The HSC didn't go that far. Surveying case law from across the country and the Restatement of Torts, the HSC noted that the parental discipline defense is based on reasonableness. In other words, parents may use reasonable force that is necessary to correct a child's errant behavior. The HSC, thus, held "that the appropriate standard for family courts to apply in contested HRS chapter 586 show cause hearings is whether the parent's discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor." In applying this standard, the HSC noted that the family court should note the surrounding circumstances like the nature of the misbehavior, the child's age and size, and the nature and propriety of the force used. The record is not clear whether Lethem's conduct could be reasonable parental discipline so the HSC remanded the case to the family court for resolution.

Who has Custody is Irrelevant; Non-custodial Parents have the Right to Discipline too. The HSC, with the new standard, also addressed whether the defense was limited to parents. A non-custodial parent has the right to discipline his or her children too. The HSC noted that the parental discipline defense in a criminal prosecution extended to non-custodial parents when the conduct occurred during visitation times. State v. Stocker, 90 Hawai'i 85, 94, 911 P.2d 399, 408 (1999). Here, the HSC extended the Stocker logic to HRS chapter 586 proceedings. According to the HSC, "[i]t would be inconsistent to say that a non-custodial parent retains the right to use reasonable force to discipline a child" in a criminal proceeding, but not in a civil one.

So what About Other Defenses for TROs? This case extends the parental discipline (essentially) that is a defense in criminal cases to civil TRO proceedings in the family court. Does this invite the court to examine whether other defenses available in criminal prosecutions can be used in TRO proceedings? What about simple self-defense? Is that a defense that can be raised now? Perhaps the distinction in that question lies in the constitutional dimension of a parent's right to discipline. But then that leads to another question: does a person have a constitutional right to defense himself or herself from physical harm? Is that necessary in order to raise self-defense at a TRO hearing?

Thursday, March 1, 2012

Glaring Judge may be Angry, but not Biased

State v. Higa (ICA January 31, 2012)

Background. Matthew Higa was indicted for second-degree murder (HRS § 707-701.5). Higa made headlines when he was arrested under suspicion of throwing the infant, Cyrus Belt, off an overpass in Makiki.

Initial Problems with Representation. Soon after being indicted, Higa retained an attorney, Randall Oyama. Higa signed a power of attorney that allowed his father, Shelton, to pay the retainer from the proceeds of a structured settlement in a different case. Months later, Oyama intimated at a pretrial conference that he may have to withdraw because he was not getting paid. At a later conference, however, Oyama said that the matter regarding payment was resolved. At first, the circuit court granted Oyama's motion to appoint a three-member panel to evaluate Higa's mental competence, but the order was set aside on the grounds that it was inadvertently filed. At the same time, Higa signed a new power of attorney authorizing Oyama to directly access payment from the structured settlement. Oyama did not advise Higa to seek independent legal advice before executing the power of attorney. Then Oyama filed a motion to appoint a three-member panel. Months after that change, Higa's father, submitted a letter to the circuit court requesting a continuance because he "lost all confidence" in Oyama, and that he filed a complaint with the Office of Disciplinary Counsel.

At another conference, while the panel results were pending, the circuit court noted that one of the doctors questioned that Higa may not be fit to execute the power of attorney. Oyama said that he was going to stipulate that Higa was fit to proceed. The circuit court then pointed out a potential conflict of interest now that Oyama would have a financial incentive in having Higa found fit. The circuit court suggested that Oyama withdraw, but Oyama said that Higa wanted him to represent him.

In an attempt to remedy the problem, Higa signed a third power of attorney to a different lawyer, Ronald Fujiwara. Higa also signed a declaration waiving the conflict. At a hearing, the circuit court conducted a colloquy with Higa to ensure that he understood what he had signed. The circuit court concluded that Higa made a "knowing, intelligent, and voluntary waiver of his right to a conflict-free representation[.]"

Ultimately, two members of the panel concluded that Higa was fit to stand trial, one did not. Higa stipulated that he was fit to proceed, and the circuit court concluded that he was.

Motion to Recuse the Judge. Before trial, the circuit court noted that he did not receive a trial memorandum regarding Higa's defense theory. (It was a bench trial.). Higa's attorney stated that one was filed, and the prosecution agreed. The circuit court indicated that he could not find one. Higa later filed a motion to recuse Judge Del Rosario. He attached an affidavit of Oyama. Oyama's affidavit noted that Judge Del Rosario wanted him to withdraw due to the conflict, but he did not. It later noted the interaction about the trial memorandum:

[Oyama] responded by telling Judge Del Rosario that he had in fact filed a trial memorandum as requested. Upon hearing [Oyama's] response, Judge Del Rosario glared at [Oyama] with a look of disbelief. Following a brief period of uncomfortable silence, the State's attorney, Peter Carlisle, confirmed [Oyama's] contention that the trial memorandum had been filed. Upon learning this fact, Judge Del Rosario indicated that he would review it later and left the courtroom.

According to Higa's motion, Judge Del Rosario showed bias or prejudice to Oyama by humiliating him in court. The motion was denied.

The case proceeding to a bench trial. Higa was found guilty as charged and due to Belt's age, Higa was sentenced to life imprisonment and would not be eligible for parole for fifteen years. Higa appealed.

There was Sufficient Evidence that Belt was Alive when he fell from the Overpass. When challenging sufficient evidence, "[t]he test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact. . . . [A]s long as there is substantial evidence to support the requisite findings for a conviction, the trial court will be affirmed." State v. Matavale, 115 Hawai'i 149, 157-58, 166 P.3d 322, 330-31 (2007). Substantial evidence "is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. And as trier of fact, the trial court is free to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence." Id. The appellate court will review the evidence "in the strongest light for the prosecution[.]" Id.

Higa argued that there was testimony from doctors suggesting that Belt was dead when he fell onto the H-1. The ICA rejected this argument. Even if there was some conflicting evidence at trial, the trial court has the responsibility to resolve conflicting evidence. State v. Kikuta, 125 Hawai'i 78, 94, 253 P.3d 639, 655 (2011). Moreover, there was evidence from eyewitnesses that suggest that Belt was very much alive on the overpass. He was crying and moving his arms and legs.

Recusal of Judge Based on Impartiality. The ICA held that Judge Del Rosario did not err in refusing to recuse himself. "Decisions on recusal or disqualification present perhaps the ultimate test of judicial discretion and should thus lie undisturbed absent a showing of abuse of that discretion." TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 252, 990 P.2d 713, 722 (1999). Higa argued that the appearance of impropriety should have prompted the recusal. When the grounds are not enumerated by statute, the inquiry is "whether circumstances . . . fairly give rise to an appearance of impropriety and . . . reasonably case suspicion on [the judge's] impartiality." State v. Ross, 89 Hawai'i 371, 377, 974 P.2d 11, 17 (1989). Furthermore, "the test for disqualification due to the 'appearance of impropriety' is an objective one, based not on the beliefs of the petitioner or the judge, but on the assessment of a reasonable impartial onlooker apprised of all the facts." Id. at 380, 974 P.2d at 20.

Higa specifically argued, inter alia, that the judge's open displeasure and frustration with Oyama arose to the appearance of impropriety. Higa points to instances where Judge Del Rosario glared at Oyama or gave him incredulous looks and uncomfortable silences. This point was lost on the ICA. The transcripts simply do not convey it. "[T]he cold written word can never adequately convey to the reader such things as facial expression, body language, and the general climate in which things are said." Alt v. Krueger, 4 Haw. App. 201, 209, 663 P.2d 1078, 1083 (1983). Even if it did, the ICA held that it was unclear whether these expressions would give rise to impropriety. Liteky v. United States, 510 U.S. 540, 555-56 (1994) ("expressions of impatience, dissatisfaction, annoyance, and even anger . . . do not establish bias").

Ineffective Assistance of Counsel Claims. In analyzing ineffective assistance of counsel claims, the court must consider whether counsel acted "within the range of competence demanded of attorneys in criminal cases." State v. Wakisaka, 102 Hawai'i 504, 514, 78 P.3d 317, 327 (2003). To prevail on this claim, the defendant must show (1) "specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence" and (2) the errors or omissions "resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." Id. The defendant need not show actual prejudice, but must show possible impairment. Id.

The "Conflict" did not Render Oyama Ineffective. The ICA rejected the claim that the conflict of the interest rendered Oyama ineffective. Representation is constitutionally ineffective when "(1) a relationship giving rise to a conflict of interest . . . between defense counsel and his/her clients" exists and (2) "either the relationship adversely affects defense counsel's performance, or the client did not consent to the relationship." State v. Mark, 123 Hawai'i 205, 241, 231 P.3d 478, 514 (2010). The ICA held that there was no actual conflict so the first prong was not met. A lawyer cannot represent a client "if the representation of that client may be materially limited . . . by the lawyer's own interests[.]" Hawai'i Rules of Professional Conduct (HRPC) Rule 1.7(b). However, a lawyer can represent the client in that situation so long as the "lawyer reasonably believes the representation will not be adversely affected" and "the client consents after consultation." Id.

According to the ICA, it was wrong to assume that Oyama's representation was materially limited by representing Higa while receiving funds directly from the structured settlement. Oyama had already moved for a 704 examination before Higa executed the power of attorney. Moreover, Oyama himself suggested a superseding power of attorney from a third party to override the one naming him, which was done. This means that by the time there was a 704 exam, Oyama was no longer holding the power of attorney. As there was no actual conflict of interest, the second prong needn't be addressed.

Other Issues. The ICA rejected ineffective assistance of counsel claims relating to the failure to use grand jury testimony to confront witnesses at trial and the failure to file a pretrial motion to dismiss the indictment.