Tuesday, May 22, 2012

Eyewitness Identifications Require Special Jury Instruction Upon Request of Defense (from now on)

State v. Cabagbag (HSC May 17, 2012)
Background. Steven Cabagbag was charged with unauthorized control of a propelled vehicle and theft in the second degree. At trial, employees of a waterproofing company testified that one of their work trucks was stolen. Fifteen days later, Officer Eutiquito Tomimbang was on patrol in Pearl City. He went to investigate an open gate near the Newtown Recreation Center at around 1:00 in the morning. They went to the area and saw a work site that may have been burglarized. At around 1:40 a.m., Officer Tomimbang testified that he was standing guard at the worksite when he saw a truck driving up the street. Officer Tomimbang testified that even though he did not shine his flashlight into the inside of the truck, he got a good look at the driver. From about 60 to 70 yards from the truck, he saw a man get out of the truck and walk toward the worksite. The man closed the gate and walked toward Officer Tomimbang. When he saw the officer, the man froze, then took off running. Officer Tomimbang testified that he saw the man's face. He identified Cabagbag as the man he saw that morning. The man was ultimately arrested. The jury found Cabagbag guilty as charged and he was sentenced to five years of probation. On appeal, Cabagbag argued that the circuit court plainly erred in failing to provide a specific instruction regarding eyewitness identification. The ICA affirmed.
Specific Jury Instruction Required when Identification is Central to the Case and at the Request of the Defendant. Prior to this case, it was left to the sound discretion of the trial court in giving a specific jury instruction regarding eyewitness identification. State v. Padilla, 57 Haw. 150, 162, 552 P.2d 357, 365 (1976); State v. Pahio, 58 Haw. 323, 331-32, 568 P.2d 1200, 1206 (1977); State v. Okumura, 78 Hawai'i 383, 404-05, 894 P.2d 80, 101-02 (1995);  State v. Vinge, 81 Hawai'i 309, 316-17, 916 P.2d 1210, 1217-18 (1996).
The HSC re-examined the deference it afforded trial courts. It examined several cases from other jurisdictions that have held that when eyewitness testimony is a key or central issue to the case, a specific instruction should be given. State v. Warren, 635 P.2d 1236 (Kan. 1981); State v. Long, 721 P.2d 483 (Utah 1986); Commonwealth v. Rodriguez, 391 N.E.2d 889 (Mass. 1979); State v. Cotto, 865 A.2d 660 (N. J. 2005); State v. Henderson, 27 A.2d 872, 926 (N. J. 2011). The HSC also examined the large body of scientific and empirical evidence demonstrating the weakness and unreliability of eyewitness testimony.
The empirical data and the wave of decisions across the country, persuaded the HSC to break with past precedence. No longer can it be "assumed that juries will necessarily know how to assess the trustworthiness of eyewitness identification evidence." Thus, "when eyewitness identification is central to the case, circuit courts must give a specific jury instruction upon the request of the defendant to focus the jury's attention on the trustworthiness of the identification. A circuit court may also give a specific eyewitness instruction, in the exercise of its discretion, if it believes the instruction is otherwise warranted in a particular case."
The Instruction Itself . . . The HSC provided an instruction that would address the concerns regarding reliability. This is a rare breaking of the fourth wall for the HSC. It specifically noted that this instruction did not intend to preclude courts and the Committee on Pattern Criminal Jury Instructions from commenting, modifying, or otherwise tinkering with it. Here's the instruction:
The burden of proof is on the prosecution with reference to every element of a crime charged, and this burden includes the burden of proving beyond a reasonable doubt the identity of the defendant as the person responsible for the crime charged.
You heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave accurate testimony.
In evaluating identification testimony, consider the following factors:
The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
The stress, if any, to which the witness was subject at the time of the observation;
The witness' ability, following the observation, to provide a description of the perpetrator of the act;
The extent to which the defendant fits or does not fit the description of the perpetrator previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness' capacity to make an identification;
[Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act;]
[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]
The period of time between the alleged criminal act and the witness' identification;
Whether the witness had prior contacts with the alleged perpetrator;
The extent to which the witness is either certain or uncertain of the identification;
Whether the witness identification is in fact the product of his own recollection;
Any other evidence relating to the witness' ability to make an identification.
The bracketed portions, noted the HSC, would only be given if applicable.
When to Give the Instruction. A majority of the justices limited the new rule (1) only when it is requested by the defense and (2) prospectively. There are times, it reasoned, when the defendant "may legitimately conclude, as a matter of trial strategy, that the instruction is not necessary or appropriate in a given case." The majority found support for limiting the instruction only upon request of the defense from courts of other jurisdictions. State v. Ledbetter, 881 A.2d 290, 318 (Conn. 2005). The majority also held that this new instruction applies prospectively and it had no retroactive effect. Thus, in Cabagbag's case, the HSC examined the case under the old rule. Although identification was a key issue to the case, the given instructions adequately apprised the jury of the need to consider the weaknesses of eyewitness identification. Cabagbag's conviction was affirmed.

Justice Acoba's Dissent.
Justice Acoba dissented with the majority on the limitations on the new rule. Justice Acoba emphasized that trial courts have a duty to ensure that juries are properly instructed. State v. Nichols, 111 Hawai'i 327, 336 n. 5, 141 P.3d 974, 983 n. 5 (2006). So even if the defense does not request the instruction, the trial court should provide it anyway. For Justice Acoba, foregoing the instruction in the interest of strategy undermines the truth-seeking function of the jury. Justice Acoba also took issue with the limitation of prospective applicability in general and the harmlessness in not having the instruction in Cabagbag's case. 

Friday, May 18, 2012

Sentencing Jury Needs to Know the Extended Terms, but not Parole.

State v. Keohokapu (HSC May 15, 2012)
Background. George Keohokapu was charged with murder in the second degree. HRS § 707-701.5. The prosecution later gave notice that Keohokapu was eligible for extended terms of imprisonment as a persistent offender. HRS §§ 706-661 and 662(1). Keohokapu, his wife Kauilani Keohokapu, and his brother, went to club "Komo Mai." Steven Wilcox and his friend Robin Gregory were there too. At some point in the night, Keohokapu got mad because Gregory was apparently staring at Kauilani. Keohokapu left the club and went to his car. Kauilani followed and an argument started. The brother came out and joined the argument. The brother grabbed Kauilani's arm as Wilcox walked out. He approached them and they started arguing. Keohokapu fought with Wilcox. A witness later testified that he saw Keohokapu with a metal object or a knife. Keohokapu collided with Wilcox and Wilcox was stabbed in the chest. Keohokapu drove away and Wilcox died from his injuries.
Trial. On the first day of jury selection, the trial court informed the prospective jurors that there had been some publicity associated with the case namely that Wilcox was depicted as a Good Samaritan. Keohokapu did not object to the trial court's statement. Voir dire lasted six days. Jurors told the court that they had been exposed to the media coverage of the case. Keohokapu moved to strike them for cause. The court denied the challenges. Nine of the twelve jurors on the panel testified that they had heard about the case on the t.v. news, newspapers, or both. Five of the nine recalled hearing that Wilcox was a Good Samaritan.
During the trial, Keohokapu argued that Wilcox was the initial aggressor and that he had brass knuckles. The jury rejected the self-defense claim and found Wilcox guilty of manslaughter. The prosecution filed notice of its intention to seek extended terms at sentencing. The sentencing phase began.
Sentencing Trial. The prosecution introduced evidence of incidents where Keohokapu was a domestic abuser and that he had attacked a man named Gregory Balga. The rest of his criminal history was also presented to the jury including crimes of violence. Kauilani also testified about the violent relationship she had with Keohokapu. During her testimony, Kauilani had difficulty recalling incidents in the past and was constantly referring to police reports. Finally, the prosecution moved to admit a statement she wrote from a 1996 police report. It was admitted over Keohokapu's objection. Balga also testified. The statement was read to the jury but the statement itself stayed out. When the prosecution rested, Keohokapu presented evidence that he himself had been abused as a child and that he had regretted his past.
The trial court instructed the jury on extended terms. The court instructed the jury that normally, a manslaughter conviction carries the maximum sentence of an indeterminate term of 20 years with the possibility of parole. However, an extended term carries life with the possibility of parole. The court instructed that an "indeterminate term" is a sentence "subject to termination at any after service of a minimum term determined by the Hawai'i Paroling Authority." The court also gave instructions as to what the HPA does in determining a minimum term. It also provided definitions for parole and cautioned not to speculate about what the HPA may or may not do. The jury found that the Keohokapu was a persistent offender and that it was necessary for the protection of the public to extend the manslaughter term to life with the possibility of parole. Keohokapu appealed. The ICA affirmed.
What to do when a Jury is Under the Influence. A defendant has the right to a jury that is "substantially free from the biasing effects of inflammatory pre-trial publicity." State v. Pauline, 100 Hawai'i 356, 366, 60 P.3d 306, 316 (2002). Once the defendant claims that external influences have infringed upon the right to a fair trial, the trial court must determine if the influences are substantially prejudicial. State v. Okumura, 78 Hawai'i 383, 394, 894 P.2d 80, 91 (1995). If it does not arise to the level of substantial prejudice, the court has "no duty to interrogate the jury." State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991). However, once the court determines that outside influences could substantially prejudice the right to a fair trial, prejudice is presumed and can be rebutted by the prosecution. Id. At that point, the court must investigate the totality of the circumstances to determine the impact of the outside influences.
Jury was Not Prejudiced--Presumptively or Actually--by the Trial Court's Publicity Statement. The HSC rejected Keohokapu's argument that the jury selection was fundamentally flawed when the court read the publicity statement about Wilcox being a Good Samaritan. The HSC noted that there are three factors that weigh in favor of presumed prejudice: (1) "a barrage of inflammatory publicity immediately prior to trial amounting to a huge . . . wave of public passion"; (2) the nature of the media accounts--factual accounts being less prejudicial than editorials or cartoons; and (3) "whether the media accounts contained inflammatory, prejudicial information that was not admissible at trial." State v. Pauline, 100 Hawai'i at 316, 60 P.3d at 366. Additionally, the appellate court examines whether the trial court took steps to shield the jury from prejudicial media exposure. Id. at 317, 60 P.3d at 367. The HSC agreed that it would have been better if the trial court did not read the publicity statement, but this did not give rise to prejudice warranting reversal. None of the three factors were met.
Nor was actual prejudice found. Actual prejudice requires the defendant to show that "jurors exhibited actual partiality or hostility that could not be laid aside." State v. Pauline, 100 Hawai'i at 315, 60 P.3d at 365. Nothing in the record shows anything like that.
Testimony--once Recollection Refreshed--need not Track Contents of the Writing. The HSC next examined evidentiary issues that arose during the sentencing phase of the trial. First, it examined Kauilani's testimony. She could not recall specific instances in which she was abused. The prosecution asked her to read a police report to refresh her recollection. She read it and testified that she remembered. She testified about specific details about an incident involving domestic violence. The HSC patently rejected Keohokapu's argument that this was improper. "When used to refresh [a] witness's present recollection, a writing is solely employed to jog the memory of the testifying witness." State v. Dibenedetto, 80 Hawai'i 138, 144, 906 P.2d 624, 630 (App. 1995). If the writing does not refresh the person's recollection, the witness cannot testify about or read the contents of the writing. State v. Espiritu, 117 Hawai'i 127, 137, 176 P.3d 885, 895 (2008). That fact that Kauilani's testimony contained details that were not part of the writing used to refresh her recollection had no part in the analysis.
Admitting the Statement from the Police Report Wasn't Error Either. The HSC also examined the admission of Kauilani's written statement in a 1996 police report based on HRE Rule 802.1(4):
(4) Past recollection recorded. A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
The HSC held that there was no error in reading the statement into evidence. Kauilani testified that she remembered the incident from 1996 and identified the statement as her own writing even though she never signed it. Finally, she noted that she wrote it on the day after the incident. This was sufficient foundation to read the statement to the jury.
Sentencing Juries Finds the Facts, the Sentencing Court Imposes the Extended Term Sentence (if it wants to). Before a court can impose an extended term of imprisonment under HRS § 706-661, the prosecution must first prove beyond a reasonable doubt "that an extended term of imprisonment is necessary for the protection of the public and that" the defendant is one of the six enumerated kinds of offenders listed in HRS § 706-662. Juries for extended term sentences are relatively new in Hawai'i and there are currently no standard jury instructions. The HSC agreed with Keohokapu that it was improper for the circuit court to provide instructions informing the jury about parole, the HPA, and indeterminate terms of imprisonment.
According to the HSC, the jury is asked to determine two facts: (1) whether an extended term is necessary to protect the public; and (2) whether the defendant is one of the enumerated offenders. If both facts were proven beyond a reasonable doubt, the jury's job is over. The sentencing court ultimately considers whether to impose the extended term. See HRS § 706-661 ("The court may sentence a person who satisfies the criteria for any of the categories set forth in section 706-662 to an extended term").
Even Though it may be Relevant, Juries Should not Know that Parole was Possible. The HSC was aware of the jury's duty and even noted that to determine if an extended term was necessary to protect the public, it is only natural for the jury to learn what the original term is as well as the extended term. However, apprising jurors about post-conviction actions by other governmental agencies should be avoided. The HSC relied heavily on People v. Ramos, 689 P.2d 430 (Cal. 1984), which held that instructions to sentencing juries allowing them to consider the many different post-conviction actions by other governmental entities like the parole board, commutation by the governor, or even review by the trial court, were improper. Id. at 441-444. The California Supreme Court explained that it was "inconsistent with the jury's proper decision-making role" and invited it to speculate about what would happen. Id.
According to the HSC, the "jury can make an intelligent determination as to whether it is necessary to incarcerate the defendant for an extended term to protect the public if instructed that the term will involve maximums of twenty years to life." It does not need to know about parole or even if the defendant will serve the entire term--extended or not. The jury did not need to know that parole was possible.
Chief Justice Recktenwald's Concurrence and Dissent. The CJ disagreed with this approach. He wrote that simply informing the jury that the extended term would move it from 20 years imprisonment to life is inaccurate. It denies the fact that Keohokapu would be eligible for parole. This eligibility, according to the CJ, is relevant and necessary for the jury to know about in order to determine if the extended term is needed to protect the public. Chief Justice Recktenwald also took issue with this approach because in some circumstances, the extended term goes from life with parole to life without parole. This approach would make this distinction impossible to articulate to the jury. Justice Nakayama joined.

Other Stuff . . . The HSC addressed the harmlessness of confessed error by the prosecution during the sentencing phase. The HSC disagreed with the ICA and held that it was not harmless. The case was vacated for a new sentencing trial.

Thursday, May 17, 2012

Evidence from Juvie Proceedings Inadmissible, Calling Jury Instructions Mumbo Jumbo is Misconduct

State v. Schnabel (HSC May 11, 2012)
Background. Less Allen Schnabel was charged with manslaughter (HRS § 707-702(1)) and unauthorized entry into a motor vehicle in the first degree (HRS § 708-836.5). The charges arose out of the death of Christopher Reuther at Zablan Beach Park in Nanakuli in 2007. Schnabel apparently punched Reuther once in the face, which caused his death. The prosecution gave notice that it intended to use at trial evidence that in 2002, a man, who was trying to shake Schnabel's hand, was punched in the face. He fell to the ground and was kicked several times. Schnabel was prosecuted as a juvenile and at the juvenile proceedings, an expert witness testified about how an orbital fracture could cause "subdural hematoma in the brain," which is a substantial risk of death. According to the prosecution, this evidence was admissible because it would prove that Schnabel was on notice that similar acts in the future could cause serious injuries. Schnabel filed a motion in limine to exclude this evidence. The motion was granted, but the prosecution moved to reconsider the ruling. The trial court did not reconsider the matter, but noted that if Schnabel testified, the prosecution would be able to cross-examine him about the incident. Schnabel did not testify. He specifically stated that he did not testify because he did not want to expose himself or the jury to the facts in the juvenile proceedings.
After the trial court instructed the jury, the prosecutor made its closing argument. During the argument, the prosecutor told the jurors to use common sense.
"Do not get too caught up in the mumbo jumbo of all the words but use your common sense . . . [D]ig deep down inside and ask yourself, deep down inside, you know, the gut feeling we talk about deep down inside. Put aside those words. . . . And then you reach down deep inside, deep down inside: Is he guilty? And if you can say that, that's your common sense."
Schnabel immediately objected. At a bench conference, Schnabel argued that the prosecutor urged the jurors to disregard the necessity of proof beyond a reasonable doubt and the instructions. The court overruled the objection and cautioned that jury that "pity, passion and prejudice have no play, I'll allow you to argue that basically as an illustration of your take on common sense." Two days later the court, sua sponte, gave the jury an instruction on reasonable doubt. Schnabel was found guilty of manslaughter and was sentenced to twenty years of imprisonment. He appealed, and the ICA affirmed.
Judicial Notice of the Law. The HSC--without being noted by either party--took judicial notice of HRS § 571-84(h). See Life of the Land, Inc. v. City Council of City and County of Honolulu, 61 Haw. 390, 419, 606 P.2d 866, 885 (1980); HRE Rule 202(b) ("The court shall take judicial notice of the constitutions and statutes of . . . every state."). The HSC also observed that the applicable law is not evidence that must be admitted by a party. "It is axiomatic that a court must 'know' the law within its jurisdiction; hence a court is required to 'notice' applicable law and to instruct the jury thereon[.]" State v. West, 95 Hawai'i 22, 26-27, 18 P.3d 884, 888-89 (2001).
Evidence from Juvenile Proceedings are Inadmissible . . . Any evidence from juvenile proceedings "shall ot in any civil, criminal, or other cause be lawful or proper evidence against the minor therein involved for any purpose whatever[.]" HRS § 571-84(h). Here, the prosecution was permitted to use an expert's testimony from a juvenile proceeding in Schnabel's very adult criminal trial. The plain language in HRS § 571-84(h) prohibited it from coming in at all. Here, the trial court should have been alerted to the fact that the juvenile proceedings were inadmissible at trial for any purpose--impeachment or otherwise. The HSC held that the trial court plainly erred in ruling that the evidence would be admissible for the purpose of impeaching Schnabel if he were to testify.
(. . . but Sentencing is O.K.) The HSC confirmed the key distinction between trial and sentencing hearings. In State v. Nobriga, CITE, the HSC already held that the statute prohibiting any evidence to come in at trial did not stop the same evidence from being used at a sentencing hearing. HRS § 571-84, according to the HSC, is designed to "prohibit the use of evidence against the child or minor involved in an adversary proceeding in any court other than Family Court" it is not "a blanket prohibition banning the use of juvenile records in a nonadversary proceeding, that is, at the sentencing state." Id. at 78-79, 527 P.2d at 1271-72.
The Error is not Harmless. The HSC rolled out the earliest formulation of Hawai'i's harmless error standard:
Error is not viewed in isolation and considered purely in the abstract. It must be examined in light of the entire proceedings and given the effect to which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction.
State v. Duncan, 101 Hawai'i 269, 278, 67 P.3d 768, 777 (2003) (quoting State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308 (1981)).
Schnabel stated plainly on the record that the only reason why he was not testifying was due to the fact that he could have been impeached with the juvenile proceedings. According to the HSC, this is an error that infringes on the constitutional right to testify. See Tachibana v. State, 79 Hawai'i 226, 331, 900 P.2d 1293, 1298 (1995). When an error "infringes upon a basic right of the accused" it cannot be considered harmless. State v. Cuevas, 53 Haw. 110, 115, 488 P.2d 322, 325 (1971).
Despite this standard from Cuevas and Tachibana, the HSC examined whether the error might have contributed to Schnabel's conviction. It held that it did because Schnabel's testimony would have negated a reckless state of mind and the exposure of the juvenile proceedings evidence preclude the jury from hearing that testimony. Schnabel's testimony--that he did not know that a single punch could kill a man--was corroborated by the medical examiner who testified that that fact is not well known and unique. Additionally, Schnabel was the only witness that would have been able to provide evidence of self-defense. Thus, the erroneous ruling might have contributed to the conviction. It was unnecessary to prove that the jury would have believed Schnabel.
The Elusive Harmless Error Standard. The HSC has unrolled two different standards to the harmless error test. The first--and older one--comes from State v. Heard, supra, and is a well-known standard: is there a reasonable possibility that the error might have contributed to the conviction? In other words, actual prejudice is not required. Rather, the court examines if it is reasonable to assume that but for the error, there might not have been a conviction at all. This standard--viewed in the abstract--would seem easy to prove. But harmless error is not cakewalk. Often times, the HSC or the ICA will find error, but hold that the overwhelming evidence of guilt renders it harmless (whether this is a true application ofthe Heard standard is questionable).
That leads to this second formulation of harmless error. Apparently, if the error infringes on a basic right, it cannot be considered harmless. Arguably, this would be a bypass around prejudice all together. It would seem that if the error infringed upon a basic right, then the court need not determine if the error might have contributed to the conviction. In other words, if it infringes upon a basic right, the question of prejudice--actual or possible--is utterly irrelevant. But that's not what the HSC did here. Perhaps some other time.
Calling Jury Instructions "Mumbo Jumbo" was Prosecutorial Misconduct.  The HSC held that the prosecutor's urging to not get caught up in the "mumbo jumbo" of the jury instructions was prosecutorial misconduct. The prosecutor's argument implied that the jury could simply ignore the law that was instructed to them and go with its gut feeling. The HSC also noted that telling jurors that they can determine guilt based on a "gut feeling" is a clear misstatement of the law. The trial court erred in equating "gut feelings" with "common sense." The prosecutor invited "the jury to base its verdict on considerations other than the evidence in the case[.]" State v. Mars, 116 Hawai'i 125, 143, 170 P.3d 861, 879 (App. 2007). This was improper conduct. State v. Cardus, 86 Hawai'i 426, 433, 439, 949 P.2d 1047, 1054, 1060 (App. 1997) (urging jury to ignore instructions and follow "common sense" was improper).
This too, was not Harmless. Having determined that the comments were indeed prosecutorial misconduct, the HSC moved on to determine whether it was harmless beyond a reasonable doubt. Again, it unfurled the reasonable-possibility-that-it-might-have-contributed-to-the-conviction standard. State v. Mainaaupo, 117 Hawai'i 235, 247, 178 P.3d 1, 13 (2008). However, in the area of prosecutorial misconduct, the court relies on three factors "(1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant." Id. at 252, 178 P.3d at 18.
According to the HSC, all three factors weighed against harmlessness. First, the comments urged jurors to disregard the cornerstone of the criminal justice system: proof beyond a reasonable doubt. Second, there was no curative instruction. Nothing got around the fact that Schnabel's objection was overruled. By overruling the objection, the court, "at least tacitly, placed its imprimatur upon the DPA's [improper remarks]." State v. Pacheco, 96 Hawai'i 83, 96, 26 P.3d 572, 585 (2001). For the HSC, the two unexplained instructions on reasonable doubt did not cure the lack of a curative instruction. They did not address the impropriety of the prosecutor's comments. Finally, the evidence was not so overwhelming that the misconduct was neutralized or rendered harmless.
Chief Justice Recktenwald's Dissent. Chief Justice Recktenwald took issue with the fact that no one objected on the grounds that the juvenile proceedings could not be used at trial. That meant that the majority found plain error. Furthermore, the majority relied upon a statute that was not part of the discussion or analysis below. For the Chief Justice, the issue was simply not before the court. Moreover, Chief Justice Recktenwald disagreed with the merits of the argument. Schnabel did not testify. That much is clear. But it was unclear for the Chief Justice if the court's ruling caused Schnabel to stay off the witness stand. He stated that the ruling was one of the factors underlying his decision to not testify. Furthermore, Schnabel did not make an offer of proof as to what his testimony would have been and so the entire issue of whether the error--if it was error--was plain enough to warrant a new trial was too speculative for the Chief Justice.
As for the applicability of HRS § 571-84(h), Chief Justice Recktenwald wrote that the plain language prohibits evidence from juvenile proceedings only if the minor was adjudicated. Without an adjudication, the prohibition from using that evidence does not apply. Here, Schnabel was not adjudicated in the proceedings. Thus, it could have been used against him if he were to testify.
As for the prosecutorial misconduct claim, Chief Justice Recktenwald agreed that the prosecutor's comments could be viewed as an invitation for jurors to disregard the law. However, he believed that a curative instruction had been given with the immediate instruction. Thus, it was unnecessary to asses the third prong--the strength of the case against Schnabel. Justice Nakayama joined.

Editor's Note. It appears that the practice of identifying police officers and trial court judges by the ICA and the HSC has been abandoned.

Tuesday, May 15, 2012

Unique Circumstances Save Untimely Civil Appeal

Cabral v. State (HSC May 9, 2012)
Background. After a fatal car accident on the Big Island, the Cabrals and other plaintiffs sued the State of Hawai'i. After a bench trial, the circuit court ruled for the State and dismissed all other claims. The court entered judgment on April 20, 2007. Ten days later, the plaintiffs filed a motion for reconsideration. That motion was denied on June 7, 2007. On July 6, the parties submitted a one-page stipulation to continue the time to file a notice of appeal for two weeks. The circuit court approved the stipulation and ordered it so. The stipulation failed to explain why two more weeks were necessary, and the circuit court made no findings explaining the need for the continuance. Within the two week period, the plaintiffs filed a motion to continue the time for filing the brief into September on the grounds that they were trying to settle the case. Before the circuit court ruled on the motion--and days before the deadline was up--the plaintiffs filed a notice of appeal on July 23. On September 7, the circuit court granted the motion, but it was moot already as the notice of appeal had been filed. The ICA held that there was no jurisdiction to hear the appeal as the court's order granting thestipulated extension was invalid. Chief Judge Nakamura dissented.
How to Calculate a Deadline for Filing a Notice of Appeal. In a civil case, the "notice of appeal shall be filed within 30 days after entry of the judgment or appealable order." Hawai'i Rules of Appellate Procedure Rule 4(a)(1). Here, the judgment was entered on April 20, 2007. That meant that the notice of appeal had to be filed by May 31. However, if a motion for reconsideration is filed, the time for filing the notice of appeal is "extended until 30 days after the entry of an order disposing of the motion." HRAP Rule 4(a)(3). The circuit court denied the motion for reconsideration on June 7. That puts the deadline to July 7, 2007. But because that day falls on a Saturday, the deadline extends to the "next day that is not a Saturday, Sunday, or a legal holday[.]" HRAP Rule 26(a). The deadline was originally July 9, 2007.
No Motion, No Good Cause, No Extension. This deadline is not set in stone.  A trial court, "upon a showing of good cause, may extend the time for filing a notice of appeal upon motion filed" before the deadline passes. HRAP Rule 4(a)(4)(A). Here, however, the plaintiffs filed a stipulation before the original deadline passed. The stipulation was approved and so ordered without a finding of good cause by the circuit court.
The HSC agreed with the ICA that the circuit court erred in extending the deadline by two weeks. There was no motion and there was no evidence of good cause being shown. Even the words "good cause being shown" were not found on the stipulation itself. So the HSC held that the circuit court erred in extending the deadline in violation of HRAP Rule 4(a)(4)(A).
But the Introduction of the "Unique Circumstances" Saves the Day! Unlike the ICA, the HSC did not end the inquiry there. It agreed with Chief Judge Nakamura and introduced to Hawai'i jurisprudence the unique circumstances doctrine. This is an equitable exception to the time limitations for filing a notice of appeal. It derived from federal courts--particularly the Supreme Court of the United States. The doctrine had a run in the federal courts from 1962 to 2007.
Under this doctrine, when the appellant's filing of its notice of appeal is untimely solely because it relied on an erroneous finding or decision by the trial court, the appellate court will allow the appeal to proceed on its merits. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217 (1962); Thompson v. Immigration & Naturalization Serv., 375 U.S. 384, 387 (1964). The doctrine was abolished in 2007 by a bare majority in Bowles v. Russell, 551 U.S. 205, 206-07 (2007). There, the majority held that the time limitations imposed by the federal rules were a "jurisdictional" requirement that could not be overlooked by an equitable doctrine. Justice Souter dissented and found it "intolerable for the judicial system to treat people this way." Id. at 215. He would have recognized unique circumstances there because "it certainly seems reasonable to rely on an order from a federal judge." Id. at 220, 223.
Hawai'i's Gloss on the Federal Doctrine. The HSC unanimously adopted the "unique circumstances" doctrine. As in the federal cases, the erroneous trial court's order was issued before the original deadline passed and the plaintiffs relied on it. Moreover, the appellee was not prejudiced by the defective extension--especially since it stipulated to it. The HSC agreed with Chief Judge Nakamura's dissent: "We require and permit parties to comply with court orders. We should permit them to rely on court orders in determining whether the time for filing a notice of appeal has expired."
Having its Cake and Eating it too. The HSC also made a very fine distinction to explain why it did not have to adopt the majority's position in Bowles. In the federal system, the deadline for filing an appeal is jurisdictional because it is a creature of statute. According to the HSC, the authorizing statute--HRS § 641-1(c)--allows appeals "to be taken in the manner and within the time provided by the rules of the court." Still yet, even though the time constraints in HRAP Rule 4 are jurisdictional, Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986), the procedure for requesting the extension--a motion and a good-cause finding--is not and principles of equity apply. And thus, the HSC allowed itself to apply the unique circumstances doctrine.

So What's Required Again? The HSC seems to have adopted a now-debunked doctrine in order to hear an appeal on its merits. Later cases will have to formulate the contours of the doctrine, but for now it seems that in Hawai'i, the appeal will be heard on its merits if (1) a trial court's extension of the deadline for filing a notice of appeal is deemed invalid; and (2) the appellant relied on the deadline and lets the original deadline pass (3) so long as there is no prejudice to the other party.

Monday, May 14, 2012

Native Hawaiian Rights Hang in the Balancing Test

State v. Pratt (HSC May 11, 2012)
Background. Lloyd Pratt was charged with three violations of camping in a closed area in the Kalalau State Park on Kauai. HAR § 13-146-04(a). Pratt moved to dismiss the prosecution on the grounds that he was a Native Hawaiian engaging in a constitutionally-protected activity.  Pratt established evidence that he was 75 % Hawaiian and that he was a kahu, or traditional and cultural caretaker of the valley. As part of his duties as a kahu, he goes into the Kalalau Valley to tend to a heiau and perform ceremonial rites. At the hearing, Dr. Davianna Pomaika'i McGregor testified for the defense. She formulated six elements that are essential to traditional and customary Native Hawaiian practices. After interviewing, Pratt, Dr. McGregor concluded that Pratt learned his contested practice from elders who lived in Kalalau Valley, he took responsibility for the Valley, his purpose was not commercial, and it was consistent with custom. Thus, she concluded that Pratt was engaging in a traditional and customary Native Hawaiian practice.
Wayne Souza of the Department of Land and Natural Resources testified for the prosecution. He explained that the purpose of the camping regulations is to limit the number of people who go into the Valley. Controlling the number of visitors, he testified, is necessary to keep the area as pristine as possible. The Valley is the home to several indigenous plant and wildlife and there are historically and culturally significant sites like the heiau.
At the end of the hearing, the prosecution conceded a major point: based on Dr. McGregor's testimony, the prosecution did "not dispute that the activities [engaged by Pratt] are traditional and customary Native Hawaiian practices." Nonetheless, even though they are proven to be traditional and customary practices, the State has a right to enforce its regulations restricting visitation into the Valley. The trial court acknowledged that Pratt had established a Native Hawaiian practice, but concluded further analysis was needed. The district court weighed the Native Hawaiian privilege against the State's interest in the regulation. The district court found in favor of the State's interest in protecting the park and denied the motion to dismiss. Pratt stipulated to all facts necessary to prove his conviction. He was convicted and the ICA, in a badly split decision, affirmed.
The (Limited) Native Hawaiian Privilege. The Hawai'i Constitution imposes a duty on the State to "protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahapua'a tenants who are descendants of native Hawaiians . . . subject to the right of the State to regulate such rights." Haw. Const. Art. XIII, Sec. 7. Moreover, non-commercial gathering rights are protected by HRS § 7-1; see also HRS § 1-1.
Establishing the Native-Hawaiian-Practice Defense. This Native Hawaiian practice is a defense to criminal charges when the defendant "at a minimum" proves (1) the practitioner is a "Native Hawaiian"; (2) the claimed right is constitutionally protected as a customary or traditional Native Hawaiian practice; and (3) the exercised right occurred on undeveloped or less-than-fully developed land. State v. Hanapi, 89 Hawai'i 177, 185-86, 970 P.2d 485, 492-93 (1998). A "Native Hawaiian" is someone whose "descendants [were] [N]ative Hawaiians who inhabited the islands prior to 1778[.]"Public Access Shoreline Hawai'i v. Hawai'i County Planning Com'n, 79 Hawai'i 425, 449, 903 P.2d 1246, 1270 (1995).
Prongs v. Balancing: The Big Issue here. In this case, the prosecution conceded that Pratt established the three Hanapi prongs. However, it maintained that further balancing was required before the defense can negate the criminal prosecution. The trial court and all three judges on the ICA agreed with this point. However, they all seem to fracture from that point on. Judge Leonard, who wrote the majority opinion, wrote that despite the concession, the second Hanapi prong was not met. She added that even if it had, the balancing test weighs in favor of the State's interest in the regulation. Judge Fujise did not go that far. She simply agreed on Judge Leonard's balancing test analysis. Chief Judge Nakamura dissented on the balancing test alone and wrote that the test weighed in favor of Pratt.
Three-Prong Hanapi Test Rejected. The HSC rejected all formulations and emphasized the need for a flexible totality-of-the-circumstances analysis. When it comes to Native Hawaiian rights, "the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area."  Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 10, 656 P.2d 745, 751 (1982). The HSC examined the line of cases that have examined the interplay between State regulations and Native Hawaiian customs and held that the determining factor is the balance of interests. It also noted that in Hanapi, it refused to adopt a bright-line rule for permitting Native Hawaiian practices on undeveloped lands.
The "New" Balance. In applying the totality of the circumstances, "the balancing of interests weighs in favor of permitting the park to regulate Pratt's activity, his argument of privilege notwithstanding. The HSC noted that the State's need for regulating the number of people going into the valley was necessary to protect the valley itself. On the other hand, Pratt has a clear interest in the valley too. But what did it for the HSC was the fact that Pratt did more than just tend to the valley. He took up residence there and cleared entire areas to replant a new species without consulting with DLNR. Pratt made no recent efforts to comply with the law either. And so, Pratt's conviction was affirmed.
What Happened to Hanapi? The HSC appears to have rejected the three-prong analysis in establishing a constitutionally-protected, Native Hawaiian custom. Then again, it did not write a single word about the prosecution's concession that Pratt met the Hanapi test. Instead, it just looked to the totality of the circumstances and balanced Pratt's interests against the State's. Would this still be the case if the prosecution did not concede? If so, then it would be fairly clear that Hanapi and its three factors are not the applicable test. The only test would then be the totality of the circumstances test, as feared by the dissent. The dissent takes a different approach. It noted that Judge Leonard was free to re-examine the prosecution's concession, but would have ruled that she got it wrong. This may be a minor point in the analysis, but it preserves the three-prong approach. The majority does not address this (at least not directly) so the specter of the Hanapi-prong test lingers.
Is this a good specter or a bad one? Depends. A defendant who may not exactly be a Native Hawaiian may think abandoning the rigid Hanapi approach is a good thing. That way, the not-so-Native-Hawaiian defendant could just go straight to the balancing approach. There, the prosecution has an opportunity to revive Hanapi by arguing that this case did not really address the big concession.
Justice Acoba's Dissent. Justice Acoba dissented. He would have rejected the totality of the circumstances test and believed that the three-prong approach in Hanapi was a good test. Justice Acoba explained that the totality-of-the-circumstances test renders Hanapi "imprecise and invites consideration of matters beyond the benchmarks." According to Justice Acoba, "what matters is not whether the test is flexible or whether it fits many scenarios, but whether it establishes a rational criteria that allow the court to apply the law governing the constitutional defense to the facts of a particular case."
Justice Acoba also wrote that Judge Leonard had the right to review the concession that Pratt's conduct were traditional and customary Native Hawaiian rights. "[A] confession of error by the prosecution is not binding upon an appellate court." State v. Line, 121 Hawai'i 74, 79, 214 P.3d 613, 618 (2009). He wrote that "as judges we exercise our own independent judgment on constitutional questions based on the facts of the case." Justice McKenna joined.

There's Power in a Stipulation.
In addition to the colorful defense and its new-fangled test, Justice Acoba also addressed the sufficiency of the evidence needed to convict Pratt despite the denial of his motion to dismiss. He looked beyond Pratt's stipulation to the facts and would have held that there was not enough evidence to prove his guilty beyond a reasonable doubt. And so at the outset, he would have vacated Pratt's conviction.  The HSC disagreed. Pratt signed a stipulation and he was addressed personally in court about the ramifications of his stipulation. 

Friday, May 11, 2012

Having to use a Peremptory Challenge to Correct the Trial Court was Plain Error

State v. Ho (HSC May 9, 2012)
Background. Patrick Ho was indicted for three counts of Sexual Assault in the First Degree, HRS §§ 707-730(1)(b) and (c), and nine counts of Sexual Assault in the Third Degree. HRS §§ 707-732(1)(b) and (c). The complainant was a teenaged girl.
During the jury selection hearing, Juror 19 told the court that she had been sexually assaulted as a child, but assured that she could be fair. Ho asked if she understood the presumption of innocence and Juror 19 said "there's a possibility that he is guilty because we're here." The court denied Ho's request to excuse Juror 19 for cause. "Juror 23a" also reported being sexually assaulted and also assured that she could be fair. She added that she had a friend in law enforcement. As Ho was trying to question her, the trial court cut him off and then denied his request to strike her from the panel for cause. After passing for cause, the parties moved on to exercising peremptory challenges.
Ho was forced to use two out of his three peremptory challenges. The final peremptory was used upon a potential juror who had found someone guilty in another criminal case and who testified that she would do the same for Ho "if she only suspected guilt."  After Ho finished his peremptory challenges, the prosecution "renewed" a request for striking for cause.
The prosecution asked the two to be stricken because it believed they struggled with the English language. The prosecution did not have to waste peremptory challenges. Those jurors were stricken and Jurors No. 7 and 9 made it onto the panel. No one questioned them. They heard the trial and rendered a verdict.  The jury found him guilty of two counts of first degree sexual assault and three counts of third degree. Ho appealed. The ICA affirmed. Judge Ginoza dissented.
How to Pick a Jury. When the offense is not punishable by life in prison, each party has three peremptory challenges to strike jurors from the panel even though they have been passed for cause. HRS § 635-50; HRPP Rule 24(b). Four "alternate" jurors may be selected in case something happens to a juror during trial. HRPP Rule 24(c). Parties get one preemptory among the alternates. "Challenges for cause may be made at any time prior to the exercise of peremptory challenges." HRPP Rule 24(d). Challenging for cause can only arise before peremptory challenges. HRPP Rule 24(d). Finally, the prosecution has as many peremptory challenges as are allowed to the defendant. HRS § 635-50; HRPP Rule 24.
The HSC reviewed State v. Cravalho, 79 Hawai'i 164, 174 P.2d 217 (App. 1994) and State v. Timas, 82 Hawai'i 499, 923 P.2d 916 (App. 1996). In Cravalho, an alternate was passed for cause, and the trial court allowed each party one preemptory challenge. The prosecution "waived" its challenge, and the defendant struck the juror. The circuit court empaneled another juror and the defendant could not exercise its preemptory challenge even though the prosecution had the opportunity to exercise its challenge. The ICA held that that was error because the defendant had been compelled to exhaust its preemptory challenges and the prosecution, in effect, had a second chance to strike a juror. Id. at 171, 880 P.2d at 223. Similarly, in Timas, the ICA held that the circuit court erred in passing an alternate juror for cause after the defendant exercised all of its preemptory challenges. Timas, 82 Hawai'i at 509, 923 P.2d at 924.
Prosecution can't "Renew" Objections for Cause Once Peremptory Challenges Made. The HSC held that the procedure here was improper. The prosecution did not "renew" its motion to have two jurors stricken for cause until after they had exhausted their peremptory challenges. In granting the motion, the trial court deprived Ho of (1) "the opportunity to compare and contrast the relative qualifications of the twelve jurors passed for cause before exercising his peremptory challenges; and (2) [Ho] was deprived of the opportunity to exercise any peremptory challenges with respect to the two jurors" who came in. The HSC added that the "renewed" motion to strike for cause was really two more peremptory challenges.
Prejudice Shmejudice. Errors arising from the selection of jurors are not like other kinds of errors. "[T]he denial or impairment of a defendant's right of preemptory challenge in a criminal case is reversible error not requiring a showing of prejudice." Timas, 80 Hawai'i at 509, 923 P.2d at 926. This is because the right to exercise a peremptory challenge is "one of the most important rights secured of an accused in a criminal case[.]" State v. Kauhi, 86 Hawai'i 195, 198, 948 P.2d 1036, 1039 (1997). The HSC did not have to find prejudice, vacated the judgment, and remanded for new trial.

Justice Nakayama's Dissent. The dispute, according to Justice Nakayama, centered around four jurors.  Two jurors were struck by way of peremptory challenges because the trial court refused to strike them for cause. Justice Nakayama pointed out that when jurors do not make it to the jury, there is no prejudice to complain of because the defendant used a peremptory challenge.  State v. Graham, 70 Haw. 627, 636 n. 3, 780 P.2d 1103, 1108 n. 3 (1988); State v. Iuli, 101 Hawai'i 196, 204, 65 P.3d 143, 151 (2003).  For Justice Nakayama, Ho used all three of his peremptory challenges after the panel had been passed for cause. He did not request any additional peremptory challenges and did not object to the passing of the jurors for cause. Ho did not demonstrate how the jury selection hearing impaired his right to exercise peremptory challenges. Justice Nakayama also took issue with the fact that the majority found plain error. Plain error requires an error. Because she would have found no error, Justice Nakayama wrote that invoking the plain-error doctrine was "unwarranted."

Wednesday, May 9, 2012

Psychologist's Report Must Explain why Defendant Refused to Participate in 704 Examination

State v. Tierney (HSC May 7, 2012)
Background. Michael Tierney sat on a bench in downtown Honolulu. A police officer saw him smoking what he believed to be a marijuana cigarette. The officer approached him and asked if he had any weapons. Tierney said no, and pulled out a bag of marijuana from one of his socks. Tierney was arrested and later charged with promoting a detrimental drug in the third degree. At the arraignment in district court, the court entered for Tierney a not guilty plea and referred him to the public defender's office. Tierney told the court that he wanted to represent himself. The judge said that he would not be adequate to represent himself. At the next court date, Tierney appeared with the public defender. Tierney said he still wanted to represent himself and told the court that the public defender "threatened to kill me" and that he was in court for felonies a few days before the appearance. He asked for discovery and a speedy trial. The district court at that point stated that fitness may be an issue and ordered a doctor to examine Tierney. Tierney said that no one could "force counsel upon me[.]"
The proceedings were suspended for one month. The court ordered a doctor to determine Tierney's fitness to proceed and the cognitive and his volitional capacity. It also ordered that if the examination "cannot be conducted by reasons of the unwillingness of [Tierney] to participate therein, the report shall so state and shall include, if possible, an opinion as to whether [Tierney's] unwillingness was the result of physical or mental disease, disorder, or defect." Dr. Olaf Gitter was appointed to conduct the examination. In his report, he wrote that after introducing himself to Tierney, he told the doctor that "he would like to invoke his Fifth Amendment rights and not participate in the evaluation. He then left the room." Dr. Gitter reported that he could not determine Tierney's fitness to proceed.
Tierney appeared without counsel at the fitness hearing. The court stated that it had "serious concerns" about his fitness to proceed and ordered him to go to an in-patient evaluation at OCCC. Again he refused to participate. Tierney was never informed that his statements to the doctor in the course of the evaluation could not be used against him at trial.
At the next hearing, the public defender appeared for Tierney and informed the court that he still wanted to proceed pro se. Tierney agreed. The court performed a colloquy on Tierney's understanding of his right to counsel and found that Tierney had knowingly, intelligently, and voluntarily waived his right to counsel. The court expressly found that Tierney was fit to proceed. Tierney was found guilty as charged and sentenced to five days jail. He appealed and was represented by counsel. The ICA affirmed.
Fitness to Proceed to Trial is a Necessary Finding Before Going to Trial. When the defendant's fitness to proceed "is drawn in question, the issue shall be determined by the court." HRS § 704-405. Determining fitness is based on an examination and report by a medical professional. Id. If the defendant is unwilling to participate in the examination, "the report shall so state and shall include if possible, an opinion as to whether such willingness of the defendant was the result of physical or mental disease, disorder, or defect." HRS § 704-405(5). Tierney refused to participate in the examination and so there was no medical opinion as to whether he was fit to proceed. But the report did not contain any opinion as to whether his unwillingness to participate was due to a mental disease, disorder, or defect or if it was even possible to render such an opinion.
Defendant's Unwillingness not an Excuse to Ditch the Report. The HSC held that HRS § 704-405(5) is mandatory. The report "shall" state an opinion as to whether Tierney's refusal to participate was caused by a mental disease, disorder, or defect. After Tierney twice refused to participate, the district court nonetheless chose to rely on its own observations to determine if Tierney was fit to proceed. Without a medical opinion, the court proceeded to trial in violation of HRS § 704-405(5).
The HSC explained that while the court has discretion in determining fitness to proceed, it cannot make that determination without the expert's report. See State v. Castro, 93 Hawai'i 454, 461, 5 P.3d 444, 451 (2000). Tierney's failure to participate did not relieve the court of its burden.
And the Remedy? Without any medical opinion as to whether the refusal to participate was based on a mental impediment, the trial court, according to the HSC, "cannot reasonably be assured that an evaluation under HRS § 704-404(5) has been undertaken by the examiner." So what should the court do?
The HSC presented a few options. According to the HSC, if the defendant keeps refusing, "the court should order that the examiner render an opinion based on 'medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in custody of public agencies.'" HRS § 704-404(8). On the other hand, the court can always appoint another examiner.
Justice Nakayama's Dissent. When a defendant's fitness to proceed is questioned, the trial court may suspend proceedings and appoint experts to "examine and report upon the physical and mental condition of the defendant." HRS § 704-404(2). When the examination cannot be finished because the defendant is unwilling to participate, "the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of physical or mental disease, disorder, or defect." HRS § 704-404(5). Justice Nakayama wrote that the majority inappropriately read out the words "if possible" from the statute. "The first cardinal rule of statutory construction is that legislative enactments are presumptively valid and, if possible, every word, clause, and sentence of a statute should be interpreted       in such a manner as to give them effect." Sato v. Tawata, 79 Hawai'i 14, 22, 897 P.2d 941, 949 (1995) (Ramil, J., dissenting). That's not, according to Justice Nakayama, what happened here. If the defendant refuses to participate, "the report shall so state[.]" HRS § 704-404(5). That happened here. The report accurately reflected that Tierney got up and left the interview.

If the defendant is unwilling to participate, then "if possible, an opinion" as to whether the refusal was caused by a mental defect should be reported too. Id. For Justice Nakayama, the requirement that the report must include an opinion on why the defendant refused was conditioned on if it was possible to render that opinion. Under these circumstances, it was not possible. Chief Justice Recktenwald joined.