Challenging a Conclusion Without a Finding that was Actually a Conclusion

Marvin v. Pflueger (HSC April 27, 2012)

Background. A group of landowners live on a kuleana next to James Pflueger near Pila'a Bay on Kauai. Heidi Huddy-Yamamoto has an interest in the land too. The landowners sued Pflueger for damages after he graded his property which caused a mudslide that covered their land. They also sought injunctive relief, including an easement by necessity. Huddy-Yamamoto was invited to join the lawsuit, but she refused. Years of litigation followed. The plaintiffs filed a motion for summary judgment to get the easement without trial. More than four years after filing the initial complaint, Pflueger, in a "position statement" raised the argument that the case should be dismissed because Huddy-Yamamoto was a necessary party that must be joined in the lawsuit. Pflueger never raised this issue in a motion to dismiss for failure to join a party. The circuit court found that Huddy-Yamamoto, who testified at the hearing on the motion for summary judgment, was not an indispensable party to the action. Thus, the circuit court granted the motion for the easement as well as a related restraining order prohibiting Pflueger from interfering with the property's water system. The circuit court issued 159 findings of fact and conclusions of law. Pflueger appealed.

In its opening brief, Pflueger's first point of error stated that the circuit court erred in granting the motion and identified FOF/COL 102: "There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused." The plaintiffs argued that Pflueger failed to comply with Hawai'i Rules of Appellate Procedure Rule 28 because it cited only the conclusion of law when in argued an erroneous finding of fact.

The ICA appeared to have agreed, but reviewed the issue for plain error and concluded that Huddy-Yamamoto was an indispensable party to the action that should have been joined so the trial court erred in ordering that she not be joined. The plaintiffs sought certiorari.

The Points of Error Section to the Opening Brief. An opening brief must contain a section called the "points of error." HRAP Rule 28(b)(4). The points of error must contain "(i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency." Id. When "the error involves a finding or conclusion of the court or agency, either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusion" must be included in the point of error. Id. Points of error that do not comply with this section "will be disregarded, except that the appellate court, at its option, may notice a plain error not presented. Lengthy parts of the transcripts that are material to the points presented may be included in the appendix instead of being quoted in the point." Id.

Noncompliance with HRAP Rule 28 Could Prove Fatal to the Appeal . . . The HSC noted that Pflueger's argument that the circuit court erred in granting the motion for summary judgment involved findings and conclusions of the court and so HRAP Rule 28(b) required a quote or reference to the contested findings or conclusions. He didn't. "It is well settled that failure to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm the circuit court's judgment." Morgan v. Planning Dept., 104 Hawai'i 173, 180, 86 P.3d 982, 989 (2004).

But noncompliance with the rule is not an automatic dismissal. The appellate courts adhere "to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible[,]" id. at 180-81, 86 P.3d at 989-90, especially when the brief is competent enough for the court to identify the party's argument. See In re Estate of Damon, 119 Hawai'i 500, 503, 199 P.3d 89, 92 (2008); Liki v. First Fire Ins. & Cas. Ins. of Hawai'i, Inc., 118 Hawai'i 123, 126 n. 3, 185 P.3d 871, 874 n. 3 (App. 2008) (ICA noted that noncompliance with procedural rule immaterial to issues raised and noncompliance cured with reply brief).

. . . But not here. Here, Pflueger's brief quoted a single conclusion of law in the points of error section. In the argument, however, he elaborated by quoting FOF 102, which is nearly identical to the conclusion in the points of error part. And although FOF 104 is not directly cited, it is also part of the challenge that Huddy-Yamamoto would not be prejudiced. The HSC held that there was no error by the ICA in reviewing this point of error. Pflueger substantially complied with HRAP Rule 28(b) by identifying the conclusion of law that was nearly identical to the findings of fact that were not part of the point of error. Moreover, the missing findings were challenged in the argument section and additionally, Pflueger raised this issue at trial albeit improperly. According to the HSC, this argument was "conspicuous, and plaintiffs understood the issue on appeal sufficiently to provide the court with a thorough response on the merits." Thus, the substantial compliance with HRAP Rule 28 warranted review and the ICA did not have to review it for plain error.

Justice Acoba's Dissent (or Concurrence?). Justice Acoba took another approach. He agreed that FOF 102 and 104, which were not quoted, were redundant with COL 12, which was part of the points of error section. In either event, all there were actually the same conclusion of law: Huddy-Yamamoto was not prejudiced by the lawsuit and refusing to participate in it. That meant that Pflueger challenged a single conclusion without challenging a finding of fact. Unless challenged, a finding of fact is binding on the appellate court. Kelly v. 1250 Oceanside Partners, 111 Hawai'i 205, 227, 140 P.3d 985, 1007 (2006); Poe v. Hawai'i Labor Rel. Bd., 97 Hawai'i 528, 536, 40 P.3d 930, 938 (2002).  "Findings of fact that are unchallenged on appeal are the operative facts of a case." Wisdom v. Pflueger, 4 Haw. App. 455, 459, 667 P.2d 844, 848 (1983).

Because findings of fact are the underpinnings of legal conclusions, "an attack on a conclusion which is supported by a finding is not an attack on that finding." Id. at 459, 667 P.2d at 848. Attacking only the conclusion, but not the finding is normally a "fatal error." Id. And so, Pflueger's failure to quote challenged findings would normally bind the appellate courts in its review of the conclusion of law. But Justice Acoba wrote that appellate courts have the power to take a proper course of action when a brief does not comply with the HRAP. HRAP Rule 30. The discretion that the ICA can take includes review of the issue in light of the policy of hearing a case on its merits. Thus, there was no real need to determine whether the ICA erred in finding plain error and in determining "substantial compliance" with HRAP Rule 28. For Justice Acoba, there was noncompliance, but that was not the end of the matter. Noncompliance can be disregarded to further the policy of hearing the merits.

The Majority's Last Word. The majority took issue with Justice Acoba's position. It noted that his position would require "that anytime a trial court's FOF/COL contain any repetition, an opening brief must always quote each instance of the repeated finding, otherwise the binding quality of any unquoted finding will negate the review of any properly-raised points of error." The majority noted that this interpretation of HRAP Rule 28 would be too strict of an application and run afoul with the policy of hearing cases on their merits.

Noncompliance v. Substantial Compliance: Distinction Without Difference? The disagreement among the justices appears to be whether Plueger's brief substantially complied with HRAP Rule 28 or whether it did not comply and the ICA properly exercised its discretion in reviewing the issue anyway. Is this a distinction without difference? Maybe. If a brief does not identify all of the findings of fact it is going to challenge, then it probably did not comply with HRAP Rule 28 and it will be up to the ICA to review the issue. If it "substantially complied," then the ICA will have to review it and has no discretion. But who determines "substantial compliance"? Probably the ICA once the other side challenges the adequacy of the point of error. In the end it would come down to whether the ICA should conclude (pun fully intended) "substantial compliance" and review the issue or whether the ICA should conclude noncompliance and then determine whether to review the case anyway.

So What Happened in this Case? Having concluded that the ICA did not err in reviewing the issue on its merits, the HSC held that the ICA erred in its ruling on the merits. According to the HSC, the circuit court did not abuse its discretion in determining that Huddy-Yamamoto was not an indispensable party to the lawsuit. So the ICA got reversed anyway.

State of Mind is not an Essential Element, but it is Essential to Pleading

State v. Nesmith & State v. Yamamoto (HSC April 12, 2012)

Background. Kevin Nesmith and Chris Yamamoto were each charged with operating a vehicle while under the influence of an intoxicant. Both charges alleged alternate theories of the offense. They both alleged that they were operating a vehicle while "under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty" in violation HRS §291E-61(a)(1) and operating a vehicle "with .08 or more grams of alcohol per two hundred ten liters of breath" in violation of HRS § 291E-61(a)(3). Yamamoto was additionally charged with committing either offense while a "highly intoxicated driver"; that is, "a person whose measurable amount of alcohol is 0.15 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood, or 0.15 or more grams of alcohol per two hundred ten liters of the person's breath" as defined in HRS § 291E-61(b)(2).

Both Nesmith and Yamamoto moved to dismiss the complaints on tehg rounds that they were deficient. They argued that "mens rea" requirements had to have been pleaded in both theories of the offense. The motions were denied, and they were found guilty under both theories. Both appealed. The ICA affirmed and held that mens rea need not be alleged in the charging instrument. Both sought certiorari; the cases were consolidated by the HSC.

Operating with an "Amount Sufficient to Impair" Requires Proof of the State of Mind. OUI under HRS § 291E-61(a)(1) does not require a specific amount of alcohol, but instead requires proof that the operator had "an amount sufficient to impair the person's normal faculties or ability to care for the person and guard against casualty." Conviction requires proof of a state of mind for each element. HRS § 701-114. When there is no state of mind expressly stated in the statute, "that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly." HRS § 702-204. Put differently, the state of mind "with which the defendant acts applies to all elements of the offense, unless otherwise specified in the statute defining the offense." State v. Vilet, 95 Hawai'i 94, 99, 19 P.3d 42, 47 (2001).

. . . and so it must be Pleaded too. The HSC agreed with Nesmith and Yamamoto that if the intentional, knowing, or reckless state of mind is needed to convict, then it must also be pleaded in the charging instrument too. Relying on State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), the HSC noted that the state of mind--intentional, knowing, or reckless (but not negligent)--for HRS § 291E-61(a)(1) is not part of our common understanding of "drunk driving." According to the HSC, "a charge alleging a violation of HRS § 291E-61(a)(1) that omits the statutorily incorporated culpability states of mind from HRS § 702-204 is not readily comprehensible to persons of common understanding." Thus, the charge was deficient.

State of Mind is not an Element, but still must be Proven and Pleaded. The HSC noted tension between two rules. First, the charge must contain the "elements of the offense." The "elements" are defined as conduct, attendant circumstances, and the results of that conduct. HRS § 702-205. The state of mind is not included in that list and is not an element. State v. Klinge, 92 Hawai'i 577, 584 n. 3, 994 P.2d 509, 516 n. 3 (2000). On the other hand, the charge must contain "a plain, concise and definite statement of the essential facts constituting the offense charged[.]" HRPP Rule 7(d). Then there is a long line of cases that have struck down charging instruments for failing to allege mens rea as an "element." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1244 (1977); State v. Faulkner, 61 Haw. 177, 178, 599 P.2d 285, 286 (1979); State v. Yonaha, 68 Haw. 586, 586, 723 P.2d 185, 185-86 (1986).

The HSC resolved the tension by noting that the charge needs to contain more than just the elements. Territory v. Goto, 27 Haw. 65,102 (Terr. 1923) (Peters, J., concurring) (failure to state "facts sufficient to constitute an offense" is jurisdictionally deficient); State v. Vanstory, 91 Hawai'i 33, 44, 979 P.2d 1059, 1070 (1999); State v. Elliott, 77 Hawai'i 309, 313, 889 P.2d 372, 376 (1994). The facts won out over the elements.

The Constitutional Dimension. The HSC clearly articulated the tension between case law and the statutory framework in the Hawai'i Penal Code. But what is missing from the analysis is the constitutional requirement that the accused "be informed of the nature and cause of the accusation." Haw. Const. Art. I, Sec. 14. This was part of the underlying rationale in Wheeler and Jendrusch. With that in mind (no pun intended), it seems that although the statutes only require the essential element, the constitutional demands essential facts. Justice Acoba noted the constitutional dimension in his dissent, which was why he believed that there was no jurisdiction to proceed further. He wrote that there was no real tension at all.

And by the way, "General Intent" has no Place in Our Jurisprudence. The HSC corrected the ICA's error. When the ICA affirmed Yamamoto's conviction, it characterized the offense as a "general intent" offense. The distinction between "general intent" and "specific intent" no longer applies. When the Hawai'i Penal Code was adopted in 1973, the distinction was abolished and the only relevant states of mind in our State are intentional, knowing, reckless, and negligent. So "arguments concerning specific and general intent are no longer relevant." State v. Kalama, 94 Hawai'i 60, 65, 8 P.3d 1224, 1229 (2000).

HRS § 806-26 does not Apply to District Court. The ICA also erred in dealing with HRS § 806-28:

The indictment need not allege that the offense was committed or the act done "feloniously," "unlawfully," "willfully," "knowingly," "maliciously," "with force and arms," or otherwise except where such characterization is used in the statutory definition of the offense. Where the characterization is so used the indictment may employ the words of the statute or other words substantially of the same import.

In Nesmith, the ICA saw "no logical reason why its provisions would not also apply to a complaint used to charge a petty misdemeanor offense." In Yamamoto's case, however, the ICA (under a different panel) concluded that "the provisions of HRS § 806-28 are not applicable to district court proceedings[.]" Seeing the inconsistency, the HSC addressed the issue.

Chapter 806 regulates circuit courts. "Notwithstanding any provision of this chapter that the same applies to courts of record, such provision shall not, without more, apply to district courts." HRS § 806-2. Moreover, "the starting point for interpreting a statute is the language of the statute itself." State v. Moniz, 69 Haw. 370, 374, 742 P.2d 373, 376 (1987). The plain language of HRS § 806-2 prohibits extension of the entire chapter to district court proceedings "without more." The Nesmith majority did not provide any reason for extending HRS § 806-28 to petty misdemeanors other than logic. This extension also contradicts the legislative history underlying the statute. See H. Stand. Comm. Rep. No. 333, in 1971 House Journal, at 845.

Operating with at Least 0.08 of Alcohol in Blood or Breath is an Absolute Liability Offense. The HSC held that offenses under HRS § 291E-61(a)(3) are absolute liability offenses and so a state of mind is not required to plead or prove. This kind of OUI offense has always intended to be an absolute liability offense. State v. Christie, 7 Haw. App. 368, 370, 764 P.2d 1245, 1246 (1988); State v. Mezurashi, 77 Hawai'i 94, 96, 881 P.2d 1240, 1242 (1994); State v. Young, 8 Haw. App. 145, 153-54, 795 P.2d 285, 291 (1990); State v. Wetzel, 7 Haw. App. 532, 539 n. 8, 782 P.2d 891, 895 n. 8 (1989). The HSC examined a great deal of legislative history and noted that when the U.S. Congress conditioned federal funds for States that condition their drunk driving laws to at least 0.10. Hawai'i responded by changing its laws in order to "enhance qualification for such federal funds." S. Conf. Com. Rep. No. 999, in 1983 Senate Journal, at 1478. Even the first drunk driving statute adopted by the territorial legislature in 1949 suggested absolute liability (back then, the limit was 0.15).

Affirmed . . . at Least Here. The district court found Nesmith and Yamamoto guilty under either form of OUI. Thus, the error in pleading HRS § 291E-61(a)(1) did not call for reversal.

Justice Acoba's Dissent and Concurrence. Justice Acoba agreed with the majority that HRS § 291E-61(a)(1) requires proof and pleading of a state of mind. However, Justice Acoba wrote that the failure to plead that state of mind deprived the court of any jurisdiction. He also wrote that the other form of OUI is not an absolute liability offense. Justice Acoba broke down what must be alleged in the complaint: elements and jurisdictional facts. The state of mind may not be an element, but the state of mind is necessary to confer jurisdiction. And because there was no jurisdictional fact in the complaints here, there was no jurisdiction to go any further.

As for the other kind of OUI, Justice Acoba believed that it was not an absolute liability offense. Offenses defined outside the Hawai'i Penal Code can only be absolute liabitliy offenses when "a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears." HRS § 702-212. For Justice Acoba, there was nothing plainly appearing in the legislative purpose underlying that form of OUI. The state-of-mind requirement "will generally apply because we will not lightly discern a legislative purpose to impose absolute liability." State v. Eastman, 81 Hawai'i 131, 140, 913 P.2d 57, 66 (1996). There is nothing in the legislative record for Justice Acoba that showed any reason to not impose the state-of-mind requirements.

Telling the Suspect a Confession is his Chance to Tell his Side of the Story was an Interrogation

State v. Eli (HSC April 13, 2012)

Background. Pulumata'ala Eli was suspected of seriously injuring his seven-month-old daughter in a minivan at Ala Moana Beach Park. He decided to turn himself in and called the police to tell them that he will meet them at Kapiolani Hospital the next day. He showed up at the agreed-upon place and time, was arrested, and taken to the police station. At the station he was taken to an investigation room where an officer told Eli that this was his "chance to give me his side of the story." Eli agreed to make a statement. The officer turned on his tape recorder, and read a standard waiver form to Eli. Eli was provided a copy and followed along and seemed to understand his rights. Eli told the police that he did not want an attorney for the moment.

On October 27, Eli told the police that he had been trying to work things out with his girlfriend in the minivan. He was frustrated at the time and his daughter sitting in the back seat would not stop crying. He hit her feet and slapped her four times. Then he took her out of her car seat and dropped her by accident. He later admitted to throwing her daughter on the car seat face first twice.

Eli was indicted for attempted murder in the second degree with the special circumstances of a complainant under the age of eight. HRS §§ 705-500, 707-701.5, 706-756. At trial, Eli moved to suppress the statement and a mistrial on the grounds that none of the evidence from the follow-up interview was provided. Eli also argued that the statement was tainted because Eli agreed to waive his rights by "telling his side of the story" without being apprised of his constitutional rights. The motions were denied. The circuit court found that the question of whether he wanted to tell his side of the story was not the equivalent of securing a waiver of his constitutional rights. The taped recording was played for the jury. The jury found Eli guilty of the lesser-included attempted manslaughter of a child under the age of eight. Eli appealed to the ICA, and applied for a transfer to the HSC, which was granted.

Statements from a Custodial Interrogation require Miranda Warnings and Waiver of Rights. "No person shall . . . be compelled in any criminal case to be a witness against himself." Haw. Const. Art. I, Sec. 10. Evidence, including confessions, obtained in violation of this right may not be used "to secure a defendant's criminal conviction." State v. Pau'u, 72 Haw. 505, 509, 824 P.2d 833, 835 (1992). "It is a fundamental tenent of criminal law that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." State v. Wallace, 105 Hawai'i 131, 137, 94 P.3d 1275, 1281 (2004). So without a warning of constitutional rights and waiver of those rights, statements from a custodial interrogation are inadmissible. Id.

Offering to Tell Defendant his Side of the Story is Interrogation. The HSC rejected the circuit court's finding that the pre-Miranda exchange was "preliminary." According to the HSC, the issue was simply whether Eli was in custody and, if so, whether the officer's questions constituted an "interrogation." An interrogation arises when "the officer should have known that his words or conduct were "reasonably likely to elicit an incriminating response from the person in custody." State v. Ketchum, 97 Hawai'i 107, 119, 34 P.3d 1006, 1018 (2001). Here, the HSC noted that Eli was arrested for injuring his daughter. He knew that Eli was aware of the pending charges and had no intention in thinking that Eli's statement would change the pendency of the charge. Nonetheless, the officer told Eli that this was his chance to tell his side of the story. According to the HSC, the officer should have known that asking Eli for his version of events was "reasonably likely to elicit an incriminating response." Because the officer did not Mirandize Eli before engaging in that conduct, the officer violated Eli's constitutional right to remain silent.

The Subsequent Miranda Warnings and Waiver did not Cure the Taint. "[T]he fruit of the poisonous tree doctrine prohibits the use of [a statement] at trial which [has] come [] to light as a result of the exploitation of a pervious illegal act of the police." State v. Joseph, 109 Hawai'i 482, 498, 128 P.3d 795, 811 (2006). The HSC held that the subsequent statement made after the Miranda warnings and waiver was obtained by the exploitation of the unlawful interrogation. According to the HSC, "there were no intervening circumstances from which it can reasonably be said that the taint from the pre-interview violation had dissipated preceding the Miranda statement. By the time Eli was actually Mirandized, he had already agreed to provide the police with a statement. The taint, according to the HSC, had not dissipated and the statement should have never been played for the jury.

An Interesting Twist. In light of the constitutional violation, the HSC remanded the case for a new trial. But in a footnote, the HSC observed that because the jury found Eli guilty of the lesser-included manslaughter charge he had been impliedly acquitted of the murder charge. Thus, double jeopardy prohibits retrial on that offense. State v. Kalaola, 124 Hawai'i 43, 52, 237 P.3d 1109, 1118 (2010).

Justice Nakayama's Dissent. Justice Nakayama dissented because she did not believe that the officer interrogated Eli before Mirandizing him and thus, the statement was not a fruit of the poisonous tree. Justice Nakayama agreed that in Joseph, it was clear that incriminating statements made prior to Miranda warnings tainted the subsequent statement. But here, that was not the case.

According to Justice Nakayama, the only question asked to Eli was if he wanted to provide a statement. He said yes and at that point, the officer asked no other questions and immediately Mirandized and sought a waiver, which he got. Only then did the substantive questioning begin. Preliminary questions to the defendant do not amount to an "interrogation." State v. Naititi, 104 Hawai'i 224, 227, 87 P.3d 893, 896 (2004). For Justice Nakayama, the officer's question to Eli was a "preliminary 'yes-or-no' question[]" that did not amount to an interrogation. Id. at 237, 87 P.3d at 906. Chief Justice Recktenwald joined.

Chief Justice Recktenwald's Dissent and Concurrence. The Chief Justice agreed with Justice Nakayama, but wrote separately to address the fruit-of-the-poisonous-tree analysis. According to Chief Justice Recktenwald, even if the detective should have given Miranda warnings and a waiver before asking if he would like to provide a statement, the subsequent warning and waiver cured any taint. Chief Justice Recktenwald did not dispute the majority's standard: a post-Miranda statement is not admissible when "it results from the exploitation of the prior illegality" or when there is no attenuation to dissipate the taint of any illegality obtained before the statement. State v. Luton, 83 Hawai'i 443, 455, 927 P.2d 844, 856 (1996); State v. Joseph, supra. Exploitation may occur when the unlawfully-obtained evidence is used to induce the suspect into making another statement. Luton, 83 Hawai'i at 455, 927 P.2d at 856.

But here, according to Chief Justice Recktenwald, nothing in the record showed exploitation of Eli's pre-Miranda agreement to provide a statement "since the detective did not mention Eli's pre-Miranda response to 'induce' Eli's subsequent waiver and confession." There is also nothing showing that Eli gave his waived confession as a result of his pre-Miranda response. Chief Justice Recktenwald would have admitted the statement because there was no evidence of exploitation by the constitutional violation.

Apologies Admissible in Criminal Prosecutions

State v. Lealao (HSC March 28, 2012)

Background. Blue Lealao was charged with assault in the first degree. HRS § 707-710. Lealao filed a motion in limine excluding his statements of condolences; particularly, the statement, "I'm so sorry. I made a big mistake." Lealao relied on HRE Rule 409.5. The circuit court allowed only the statement, "I made a big mistake" was admissible over Lealao's objection. The apology was not. At trial, testimony showed that Lealao hit a man named Emil after an argument at a birthday party. Approximately a week and a half later, testimony from a woman named Chelcey Pang established that Lealao said he had made a "big mistake." Lealao testified in his own defense and explained the "mistake" he was talking about was not an admission of guilt. A jury found him guilty of assault in the second degree and he was sentenced to five years of imprisonment. The ICA affirmed, but noted that it was unclear if HRE Rule 409.5 applied to criminal cases.

HRE Rule 409.5 Excludes Apologies . . . Statements "or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule." HRE Rule 409.5.

. . . But only in Civil Cases. According to the HSC, this rule does not preclude the admission of sympathy, commiseration, or condolence in criminal cases. The plain language of the rule "suggests that the rule was not intended to apply in a criminal context." The HSC focused on the word "liability," which apparently is limited to civil cases. The commentary also did not mention criminal proceedings. According to the HSC, the commentary suggests that it did not apply to criminal cases. The rule "favors expressions of sympathy as embodying desirable social interactions and contributing to civil settlements, and the evidentiary exclusion recognizes that the law should facilitate or, at least, not hinder the possibility of this healing ritual." HSC also found support in the legislative history. Here, the ICA gravely erred in applying the rule to this criminal case.

What is "Liability?" According to the HSC, the plain language of the rule limits its application to civil cases. The language of the rule prohibits apologies, etc. to be admitted as evidence to prove "liability for any claim[.]" Without expressly stating it, the HSC's analysis suggests that in criminal cases there is no "liability" or "claim." These terms apparently have no place in criminal prosecutions. The phrase "criminal liability," may have just become nonsensical mumbo jumbo.

Distinguishing Canady. In State v. Canady, 80 Hawai'i 469, 911 P.2d 104 (App. 1996), the ICA in a prosecution for abuse of a family or household member excluded the defendant's statement that he wanted to go to the emergency room to apologize to his girlfriend. The Canady court rejected the prosecution's argument that the apology was substantial evidence to support the conviction. Id. at 475, 911 P.2d at 110. The ICA explained that an apology standing alone could have multiple meanings. Id. It was not evidence that the defendant committed a crime. Id.

Here, however, the issue was entirely different. Canady examined the sufficiency of admitted evidence and held that there was not enough to support the conviction. Here, the issue centered around the admission of the apology itself.

Don't Forget the rest of the Rules. Let's not get too crazy. Just because HRE Rule 409.5 doesn't apply in a criminal case does not mean all apologies are admissible. Hearsay rules still apply. Here, there was no need to get into that since the apology came from the defendant and that would be an exception to the hearsay rule. But what if it was a written statement? That should be prohibited pursuant to the best evidence rule. And don't forget the balancing approach between relevance--yes, apologies by the defendant are almost always going to be relevant--and the risk of undue prejudice. HRE Rule 403.

Other Matters. The HSC addressed other matters relating to the break up of the statement. Because the circuit court broke up Lealao's statement into two parts, it examined whether the second half of the portion--"I made a big mistake"--without the first part ("I'm so sorry") was prejudicial error. See, e.g., State v. Tucker, 10 Haw. App. 43, 67-68, 861 P.2d 24, 35 (1993). It was not harmless. Thus, the HSC affirmed the conviction.

Inaudible Responses, Stayed Sentences, and Parental Discipline

State v. Kiese (HSC March 29, 2012)

Background. Jason Kiese was charged with one count of harassment, a petty misdemeanor. Kiese was accused of slapping his six-year-old son on his face and with a thin bamboo stick on his hands and okole. Before trial, there was a hearing to determine the son's competency. Although he did not speak much, the family court noted interpretations of gestures by defense counsel and the prosecutor. This practice continued at trial. Essentially, the son testified that he misbehaved in school so his father scolded him, spanked him, hit his hands and face, it hurt, and he cried. Police officers testified about taking photographs of red marks on the son. The mother, Kiese's wife, testified about not seeing the incident but that Kiese told her that he had hit their son. Kiese testified in his own defense. The family court rejected the parental discipline defense and found Kiese guilty as charged. The family court sentenced 6 months of probation with the requirement of parenting classes. The family court denied Kiese's motion to stay his sentence pending appeal. On appeal, the ICA affirmed and did not address the denial of the motion to stay on the grounds that it was moot. Kiese petitioned to the HSC.

Sufficient Evidence to Overcome Parental Discipline Defense. A person commits harassment when the person strikes, shoves, kicks, or otherwise touches another in an offensive manner with the intent to harass, annoy, or alarm the other person. HRS § 711-1106(a)(1). Kiese argued that there was insufficient evidence showing an intent to harass, annoy, or alarm his son. "[T]he mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all the circumstances." State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982). The HSC pointed out that Kiese stuck his son with enough force to leave red welts on him the next day. There was enough evidence to disprove the parental discipline defense in HRS § 703-309.

Questioning Putting the Prosecutor as a Witness was Error. The HSC rejected Kiese's argument that the prosecution engaged in egregious misconduct warranting a new trial. The prosecutor repeatedly questioned the boy about prior conversations between him, the prosecution, and defense counsel. The prosecutor justified these questions and the hearsay responses as prior consistent statements:

"Evidence of a statement previously made by a witness that is consistent with the witness' testimony at trial is admissible to support the witness' credibility only if it is offered" in three different scenarios. HRE Rule 613(c). The prosecutor's questioning occurred during direct examination so none of the three scenarios applied. A "prior consistent statement of a witness who has merely testified in direct examination, without impeachment, is ordinarily excluded because it is unnecessary and valueless." State v. Altergott, 57 Haw. 492, 504, 559 P.2d 728, 736 (1977). The questions also asserted a personal knowledge of facts at issue where the prosecutor could not also act as a witness. This was improper.

But far from Harmless. Whether prosecutorial misconduct warrants new trial based on examination of (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the prosecutor's case. State v. Wakisaka, 102 Hawai'i 504, 513, 78 P.3d 317, 326 (2003). The HSC examined all three factors and held that the error was not harmless. As for the first factor, the HSC noted that it appeared that the prosecutor was unaware of the "prohibition against making himself a witness during trial. Compounding the prosecutor's misunderstanding was that neither the defense counsel nor the family court explicitly recognized the prosecutor's line of questioning as improper on the basis of Hawai'i Rules of Professional Conduct Rule 3.4." As for the second step, there was no curative instruction, but that was not significant based on the rebuttable presumption "that the presiding judge will have disregarded the incompetent evidence and relied upon that which was competent." State v. Antone, 62 Haw. 346, 355, 615 P.2d 101, 108 (1980); State v. Guiterrez, 1 Haw. App. 268, 270, 618 P.2d 315, 317 (1980). Finally, there is the strong evidence showing harassment. Based on all of this, the HSC held the erroneous line of questioning was not harmless beyond a reasonable doubt.

"Inaudible" Answers on Transcription did not Prompt Reversal. Kiese argued that the ICA erroneously relied on a bad transcript. Because the minor was soft spoken, much of his responses were not transcribed. They simply stated "no audible response" and either the prosecutor, defense counsel, or the court noted whether the minor was nodding his head or shaking his head. Based on this bad transcript, according to Kiese, the ICA should not have relied on it to affirm the conviction.

The HSC disagreed. "[W]here the transcripts of a defendant's trial are incomplete because they omit portions of the trial proceedings, such omissions do not mandate reversal unless they specifically prejudice the defendant's appeal." State v. Ganotisi, 79 Hawai'i 342, 343, 902 P.2d 977, 978 (App. 1995). The HSC noted that whether inaudible responses rendered the transcript and the appeal defective should be examined on a case-by-case basis. Here, the inaudible responses were usually interpreted by someone in the courtroom. The HSC simply found no error in relying on the transcript.

Staying the Sentence in a Petty Misdemeanor . . . Both parties concede that the family court erred in denying the stay of the sentence. However, since the HSC affirmed the conviction and since the 6-month probationary period was over and done, examination of the issue was moot. Nonetheless, the HSC found issues about staying of sentences important enough under the public-interest exception to the mootness doctrine. See State v. Cullen, 86 Hawai'i 1, 13, 946 P.2d 955, 967 (1997).

Staying the Sentence isn't Really Discretionary. "Stays in criminal cases shall be had according to law." Hawai'i Rules of Penal Procedure Rule 8(c). "[F]iling of a notice of appeal or the giving of oral notice in open court at the time of sentence by the defendant or the defendant's counsel of intention to taken an appeal may operate as a stay of execution and may suspend the operation of any sentence or order of probation, in the discretion of the trial court." HRS § 641-14(a). Although this language may afford stays at the discretion of the judge, "[t]he right to bail shall continue after conviction of a . . . petty misdemeanor[.]" HRS § 804-4(a). And when the defendant is entitled to bail, he or she may not be sentenced while the case is pending further review unless the defendant gives written consent. HRS § 804-4(b). Interpreting this cluster of statutes and rules, the HSC had already held that "[a]n accused misdemeanant, petty misdemeanant, or law violator on bail is entitled to bail as a matter of right after conviction and pending appellate review." In State v. Ortiz, 74 Haw. 343, 356, 845 P.2d 547, 553 (1993). Once the defendant posts bail, the trial court has no jurisdiction to sentence the defendant. State v. Miller, 79 Hawai'i 194, 200-01, 900 P.2d 770, 776-77 (1995).

Editor's Note: This is Justice McKenna's first published opinion!

ICA Reluctantly Holds Due Process may Prohibit HPA from Imposing Higher Min. Term when Defendant Prevails on Appeal

Fukusaku v. State (ICA April 3, 2012)

Background. Raita Fukusaku was convicted of two counts of 2d degree murder, and was sentenced to two consecutive terms of imprisonment with mandatory minimum terms of 15 years each. The Hawai'i Paroling Authority set the minimum terms to two twenty-year terms. Thus, he had to serve 40 years before being eligible for parole. Fukusaku appealed and the case was remanded for re-sentencing. Fukusaku was again sentenced to two consecutive life terms imprisonment with the possibility of parole. This time, the HPA gave him two terms of twenty-five years making it a 50-year minimum term. Fukusaku sought a petition to correct the terms pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. Fukusaku, pro se, argued that the HPA was being vindictive and unjustified in upping the terms. The petition was denied without a hearing. Fukusaku appealed.

The Standard of Review. A Rule 40 petition is the appropriate procedural means to challenge the HPA's minimum term decision. Coulter v. State, 116 Hawai'i 181, 184, 172 P.3d 493, 496 (2007). A hearing on a Rule 40 petition should be permitted only when the petition states a colorable claim. Dan v. State, 76 Hawai'i 423, 427, 879 P.2d 528, 532 (1994). In other words, the petitioner must show "if taken as true the facts alleged would change the [outcome of the proceeding], however, a petitioner's conclusions need not be regarded as true." Id.

Due Process Prohibits a Heavier Sentence for Winning on Appeal. When the defendant successfully gets his or her sentence set aside and is retried, "it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for having his succeeded in getting his original conviction set aside." North Carolina v. Pearce, 395 U.S. 711, 723-24 (1969). Since then, the SCOTUS has found "presumptive vindictiveness" when a more severe sentence is imposed after the defendant won on appeal and is resentenced. United States v. Goodwin, 457 U.S. 368, 373-74 (1982). The presumption may be overcome when objective information which was not presented or considered during the original sentencing justifies the increase in the sentence. Texas v. McCullough, 475 U.S. 134, 143-44 (1986).

Pearce has no Place for Parole (At Least Here). In his opening brief, Fukusaku first argued that the Pearce presumption applied to the HPA's determination of the minimum term. The prosecution countered that the presumption applies only where there is a reasonable likelihood that the increased sentence was the product of vindictiveness. Goodwin, 457 U.S. at 373; Alabama v. Smith, 490 U.S. 794, 799 (1989). Fukusaku, in his reply brief, conceded this point. The ICA, without ruling on the matter, found that the concession was "well taken as it is supported by United States Supreme Court and the Ninth Circuit authority."

But Due Process Still Controls . . . But the analysis did not end with Pearce. In minimum term determinations, "judicial intervention is appropriate where the HPA has failed to exercise any discretion at all, acted arbitrarily and capriciously so as to give rise to a due process violation, or otherwise violated the prisoner's constitutional rights." Williamson v. HPA, 97 Hawai'i 183, 195, 35 P.3d 210, 222 (2001). Moreover, actual vindictiveness would allow Fukusaku to overturn the HPA's decision. See McCullough, 475 U.S. at 138.

Despite Statutory Prohibition, Due Process Controls. The ICA turned to the policy interests underlying the imposition of a more severe term. First, it turned to HRS § 706-609, which prohibits the sentencing court from imposing "a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence." That, however, is limited to sentencing and had not been extended to parole determinations. State v. Keawe, 79 Hawai'i 281, 290, 901 P.2d 481, 490 (1995).

The Chilling Effect at Re-Sentencing is the same before the HPA. The ICA reasoned that even if the statutory prohibition is limited to sentences, due process controls. The defendant's right to appeal must be "free and unfettered" to avoid a chilling effect on appeals. Pearce, 395 U.S. at 724-25. The chilling effect discussed in Pearce, according to the ICA, is the same chill in HPA decisions. A defendant can certainly be afraid to challenge the HPA for fear that reappearing before it would only lead to a more severe minimum term. "It would provide little comfort to most defendants to be informed that although a defendant's court-imposed sentence could not be increased after a successful challenge to a conviction or court-imposed sentence, the HPA, without justification or meaningful review, could increase the defendant's minimum term of incarceration . . . after a successful challenge."

Arbitrary and Capricious for HPA to Impose Higher Min. Term When the only Difference is that Defendant won on Appeal. The ICA ultimately concluded that "where the HPA is required to again set a defendant's minimum term only because the defendant successfully challenged a conviction or court-imposed sentence--we conclude that it would be arbitrary and capricious for the HPA to impose an increased minimum term based on the same information it had when it imposed the original (lower) minimum term before the successful challenge."

Here, the HPA increased the minimum term based on the "nature of the offense." The HPA had no new information and nothing was new about the "nature of the offense." This, according to the ICA, was arbitrary and capricious. The ICA remanded the petition back to the circuit court for hearing.

No English, No Problem

Cun-Lara v. State (ICA March 28, 2012)

Background. Isidro Oswaldo Cun-Lara, a citizen of Guatemala, was charged with methamphetamine trafficking (HRS § 712-1240.6(2)), promoting a dangerous drug in the third degree (HRS § 712-1243) and unlawful use of or possession of drug paraphernalia (HRS § 329-43.5(a)). He appeared for the arraignment, waived a preliminary hearing, and was arraigned again in the circuit court all without requesting an interpreter. He had an attorney with him too. All continuances of his trial at pretrial conferences were conducted in English without the aid of an interpreter. Cun-Lara entered a plea agreement.

At the change-of-plea hearing, Cun-Lara pleaded no contest to the paraphernalia charge and moved to defer the no-contest plea. His attorney said that an interpreter was unnecessary. The change of plea colloquy was in English without an interpreter. He signed a change-of-plea form that expressly said that "if I am not a citizen of the United States, a conviction or a plea of guilty or no contest, whether acceptance of my plea is deferred or not, may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States." At the hearing, Cun-Lara informed the court that English is his second language, but he understood English and had no difficulty understanding English. In addition to the form, the circuit court informed Cun-Lara of the possible consequences a no-contest plea could have on his immigration status. The circuit court found that Cun-Lara knowingly and voluntarily entered a no contest plea. Cun-Lara's motion to defer was denied and he was sentenced to five years probation. At the sentencing hearing, no interpreter was requested and none was present. Cun-Lara spoke English at the sentencing hearing.

About one year later, the Dept. of Homeland Security issued a warrant on Cun-Lara for immigration purposes. Cun-Lara, now with a new attorney, filed a petition to set aside the no contest plea pursuant to Hawai'i Rules of Penal Procedure Rule 40. Cun-Lara explained in the petition that he had only a limited understanding of the English language and did not fully understand what was happening at the change of plea hearing. Cun-Lara also challenged his trial attorney's effectiveness in advising him on the immigration consequences in taking the plea. The circuit court denied the petition without hearing. Cun-Lara appealed.

Ineffective Assistance of Counsel Claims in Hawai'i. A claim of ineffective assistance of counsel requires the defendant to show (1) "that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and (2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Wakisaka, 102 Hawai'i 504, 513-14, 78 P.3d 317, 326-27 (2003). Actual prejudice need not be proven. Id.

Padilla v. Kentucky Cun-Lara argued that his trial attorney was constitutionally ineffective because pleading to the paraphernalia charge would result in automatic deportation and his lawyer advised him that he "might get lucky and not be deported." The ICA rejected this argument by distinguishing Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473 (2010). There, the SCOTUS held that defense counsel was ineffective in advising his client that even though the charge--trafficking a large amount of marijuana--was a deportable offense, Padilla had nothing to fear since he had been in the country for so long. Padilla argued that he would not have pleaded guilty but for the advise of counsel. The SCOTUS agreed and held that counsel was ineffective, but remanded to consider the prejudice prong of the federal ineffective assistance of counsel claim. Id. at 1487.

Distinguishing Padilla v. Kentucky According to the SCOTUS, "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advise is equally clear." Id. at 1483.

The ICA held that deportation consequences flowing from Cun-Lara's plea were not "truly clear" so all that needed to be shown was the general advisement that a plea could expose him to adverse immigration consequences. The ICA reasoned that Padilla's drug offense was an "aggravated" offense that eliminated any possibility of challenging the removal proceedings under immigration law. An "aggravated felony" is defined under 8 U.S.C. § 1101(a)(43)(B). This includes trafficking offenses, but according to the ICA, it does not include paraphernalia. The ICA analyzed federal immigration law and concluded that under this offense, Cun-Lara could have challenged the removal proceedings and thus, the deportation consequences from his plea were not "truly clear."

On Advising your Non-Client . . . Having held that the immigration consequences were not "truly clear," the ICA next had to determine if Cun-Lara's attorney gave sufficient advice. Here, his attorney told him that he would be lucky if he would not be deported. That, according to the ICA, constituted sufficient advice that pleading no contest carried the risk of adverse immigration consequences. Nothing in the record established the first prong of ineffective assistance of counsel. There were no errors or omissions that were deficient.

And No Interpreter Needed Here Either. The ICA also rejected Cun-Lara's claim that an interpreter was necessary. Waiver must be done knowingly, intelligently, and voluntarily. State v. Friedman, 93 Hawai'i 63, 68, 996 P.2d 268, 273 (2000). Cun-Lara argued that he did not provide a valid waiver because he needed an interpreter throughout the proceedings. Generally, "where a defendant cannot understand and speak English, the judge is required to appoint an interpreter to aid a defendant." State v. Faafiti, 54 Haw. 637, 638, 519 P.2d 697, 699 (1973). The court may appoint an interpreter when the defendant has "some knowledge of English and he is reasonably able to converse in English[.]" Id. at 639, 519 P.2d at 699. The ICA looked at the totality of the circumstances and held that Cun-Lara understood English well enough to respond to the court's questions and participate in his case. The no-contest plea was entered knowingly, intelligently, and voluntarily. There was no way counsel was constitutionally ineffective.

Remedy for Deficient Charging Instrument is Dismissal Without Prejudice, For Real.

State v. Walker (HSC March 28, 2012)

Background. Samuel Walker was charged with Habitually Operating a Vehicle Under the Influence of an Intoxicant. HRS §291E-61.5(a)(1) and (a)(2)(A). Walker had been charged by felony information. The charging instrument failed to allege that Walker had been operating a vehicle on a public road, way, street, or highway. The instrument also merely referred to Walker as a "habitual operator of a vehicle while under the influence of an intoxicant." He was convicted and sentenced to five years imprisonment. Walker appealed. The ICA held that the charge did not allege an essential element--the attendant circumstances of a "habitual operator"--and vacated the judgment with instructions to dismiss without prejudice. Chief Judge Nakamura dissented.

Walker's Complaint. Walker's argument to the HSC had nothing to do with the ICA's analysis of the Wheeler issue. Rather, he took issue with the remedy: vacating the judgment with instructions to dismiss without prejudice. Walker argued that there was insufficient evidence to support the conviction and a reversal was the proper remedy. In the alternative, Walker argued that the remedy should have been conviction and resentencing to non-felony OUI pursuant to HRS § 291E-61.

No Error for Dismissal of Felony Without Prejudice. The overall purposes of a charge in a criminal case is to (1) sufficiently allege an offense to properly confer jurisdiction, State v. Sprattling, 99 Hawai'i 312, 327, 55 P.3d 276, 291 (2002), and (2) inform the defendant of the "nature and cause of the accusation" as required by the state and federal constitutions. State v. Mita, 124 Hawai'i 385, 290, 245 P.3d 458, 463 (2010). Here, there is no dispute that the charging instrument was deficient because it did not adequately allege that Walker was a "habitual operator," i.e., one with prior convictions within a ten-year period. But even then, there is no jurisdiction for a simple OUI charge. According to the HSC, Walker's charge did not include the statutory definition of "operate." That meant that there is no jurisdiction for the misdemeanor OUI too. Remanding the case and sentencing under a jurisdictionally-defective charge would be clearly erroneous and improper.

Justice Nakayama's Concurrence. Justice Nakayama disagreed with the HSC's analysis, but concurred in the result. She agreed that the charge did not adequately plead habitual OUI because it did not define "operate" properly. However, Walker did not make the specific challenge to this term. Justice Nakayama believed "the defendant must be specific in identifying the way in which the charge is defective[.]" The failure to object warranted analysis of the charge under the liberal analysis from State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983), and State v. Wells, 78 Hawai'i 373, 381, 894 P.2d 70, 78 (1995). Under that standard, two counts can be read together. State v. Tominiko, 126 Hawai'i 68, 76, 266 P.3d 1122, 1130 (2011). That left open the possibility of resentencing Walker to the lesser-included OUI offense, but because the ICA has discretion in remanding with instructions to dismiss without prejudice, there should be no disturbance of that decision. Chief Justice Recktenwald joined.

Taking Issue with the Specific Objection. The majority made a point to state the Walker's generalized objection to the charging instrument was sufficient to preserve the issue on appeal. Unlike Tominiko, Walker "generally moved to dismiss on the grounds that the charge failed to state an offense without specifying which element of the offense was deficient." According to the majority, Walker is more like Wheeler and his motion and less like Tominiko and his non-objection. Justice Nakayama didn't see it that way.