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.

No comments: