Friday, December 7, 2012

Prosecution Can't Use Evidence from Trial Resulting in Acquittal


State v. Mundon (HSC December 5, 2012)
Background. James Mundon was initially indicted with twenty-eight counts including various degrees of sexual assault, kidnapping, assault, and terroristic threatening. The counts stem from an incident that took place in a single night. At the first trial, Mundon represented himself and had standby counsel. He was found guilty of terroristic threatening in the first degree, attempted assault in the first, assault in the third degree, and attempted sexual assault in the first degree. Mundon appealed and challenged the jury instructions. The HSC agreed, reversed the terroristic threateningcounty, vacated the rest, and remanded the case for retrial.
Trial. Just before opening statements, the prosecution announced that it would be introducing evidence of acts for which Mundon had been acquitted. Mundon objected, but the circuit court overruled the objection.
The complainant testified that she came to Kauai from Canada. On her second day, she met Mundon in the dark near the water in Kapa'a and accepted his invitation to sleep in the cab of his truck. When she awoke she found herself parked far from Kapa'a and discovered Mundon's hand on her outer labia. She told him off and he backed off. She felt that everything had cleared up and she went back to sleep. She awoke again and again found Mundon with his hand up her dress. She repeated herself again that she did not want to do that and Mundon stopped again. She went back to sleep. For the third time she awoke and found Mundon touching her. She grabbed her bag and was going to get out of the truck when Mundon pulled her back and told her that he had a knife and that he would cut her if she wouldn't shut up and lie still. She felt something cold and sharp, but saw no knife.
According to the complainant, Mundon ordered her to undress. She took off some, but not all of her clothes. Then Mundon kissed her and touched her breasts several times. The complainant was able to get away by telling him that she needed to use the bathroom. According to the complainant, Mundon caught up with her and a struggle ensued. She got away again and ran toward a nearby residential or hotel area screaming for help. The police were called and she gave a description of the truck. The police testified at trial that later that morning, they found a truck matching the description and Mundon sleeping inside it. The police arrested Mundon.
Mundon was found guilty of attempted sexual assault in the first degree, kidnapping, and two counts of assault in the third degree. Mundon appealed again and the ICA affirmed. Mundon appealed to the HSC.
Double Jeopardy does not Bar Retrial for Vacated Conviction. No person shall "be subject for the same offense to be twice put in jeopardy." Haw. Const. Art. I, Sec. 10. This is the Double Jeopardy clause in the Hawai'i Constitution and it is very similar to the guarantee in the Fifth Amendment to the United States Constitution. "Double jeopardy protects individuals against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." State v. Ake, 88 Hawai'i 389, 392, 967 P.2d 221, 224 (1998). Double Jeopardy does not, however, bar the prosecution "from retrying a defendant whose judgment of conviction is set aside because of [the trial court's] error." State v. Cabral, 8 Haw. App. 506, 511, 810 P.2d 672, 676 (1991).
. . . But Collateral Estoppel Lies Within Double Jeopardy Clause. At the outset, the HSC made it clear that Mundon was never retried for the offenses of which he was acquitted. Thus, retrial of the vacated conviction is not prohibited by Double Jeopardy.
According to the HSC, however, the doctrine of collateral estoppel is "embodied in the right against double jeopardy, and precludes relitigation issues already decided, even when double jeopardy is not necessarily implicated." The HSC relied on Ashe v. Swenson, 397 U.S. 436, 443 (1970), where the SCOTUS imported the common law doctrine of collateral estoppel to the analysis.
"[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. The Ashe Court cautioned courts against a "hypertechnical and archaic approach" and urged the courts, "with realism and rationality . . . [to] examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration[.]" Id. at 444.
The SCOTUS itself took a more technical approach in Dowling v. United States, 493 U.S. 342 (1990). In short, the SCOTUS majority held that the acquittal of some counts did not show that the jury determined one of the issues in the second trial. Id. at 350. Justice William J. Brennan dissented.
HSC Adopts Ashe Over Dowling. The HSC appeared to have agreed with Justice Brennan and, held that under Art. I, Sec. 10 of the Hawai'i Constitution the Ashe test controls. The HSC applied the test here. Mundon was acquitted of multiple counts accusing him of knowingly putting his hand on the complainant's genitals and breasts and putting his mouth on the complainant's breast all by a strong compulsion. The HSC noted that Mundon was acquitted of these offenses, but convicted of attempted sexual assault in the first degree and kidnapping. According to the HSC, the acquittals must have been based on the failure to prove the conduct elements. Thus, applying Ashe and collateral estoppel, the prosecution should not have been allowed to present evidence that Mundon touched the complainant's genitals and breasts with his hands and mouth. The HSC vacated the second conviction for Attempted Sexual Assault in the First Degree. As for the kidnapping charge, the HSC noted that the prosecution relied upon evidence of acts of which Mundon had been acquitted to make the case that Mundon restrained the complainant with the intention of subjecting her to sexual assault. HRS § 707-720(1)(d). Thus, the kidnapping charge must be vacated too.
But No Reference was Made for the Assault 2d. It is interesting to note that the HSC examined the assault charges and held that the evidence used to support them was not evidence of acquitted acts. There was no reason, therefore, to vacate those counts.
Using the Term "Victim" was Improper. The HSC examined other points raised by Mundon in the rather likely event of a retrial. Mundon objected to references by the prosecution's witnesses of the complainant as a "victim." The HSC more or less agreed. The "term 'victim' is conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged." State v. Nomura, 79 Hawai'i 413, 416, 903 P.2d 718, 721 (App. 1995). The HSC approved of the admonishment from Delaware: it "is incompatible with the presumption of innocence for the prosecution to refer to the complaining witness as the 'victim' just as it is to refer to the defendant as a 'criminal.'" State v. Jackson, 600 A.2d 21, 21 (Del. 1991).
And, to top it off, and Improper Sentence. The HSC also addressed an issue relating to sentencing. The circuit court sentenced Mundon to consecutive terms. At the hearing, the prosecution referenced State v. Vinhaca, 124 Hawai'i 128, 237 P.3d 1194 (2010). The circuit court acknowledged the similarities to that case and noted that it had presided over that case. In fact, during sentencing, the judge placed Mundon in the same category:
This Court presided over [Vinhaca] and did, in fact, sentence the defendant in that case to consecutive sentencing. . . . [G]iven this Court's familiarity with the Vinhaca case and your case, this Court places you in the same category as Mr. Vinhaca in terms of the need for consecutive sentencing.
Mundon noted that he was not familiar with that case. Even though some information was not available to a defendant in preparation for sentencing, the defendant must "have access to all factual information used in sentencing." State v. Durham, 125 Hawai'i 114, 122, 254 P.3d 425, 433 (2011). The HSC held that the circuit court cannot base its sentence of Mundon on its familiarity with another case about which Mundon knew nothing. The HSC vacated the judgment and remanded for re-sentencing the other counts that were affirmed.

Saturday, December 1, 2012

Dismissal as a Sanction Against Prosecution is not an Acquittal


State v. Clemente (ICA November 30, 2012)
Background. Drew Clemente was prosecuted for one count of excessive speeding and one count of operating a vehicle under the influence. The key witness for the prosecution was the officer who pulled him over: Officer Jeffrey Tallion. At the bench trial, Officer Tallion testified for the prosecution, but did not finish on the first day. The District Court ordered Officer Tallion to come back nine days later at 10:00 a.m. On the second day, the court bailiff confused Officer Tallion with another officer in a different case who had called in sick.
The District Court called the parties ahead of schedule and told them that Officer Tallion was ill. The prosecution orally moved to continue the trial. The District Court denied the motion and sua sponte dismissed the case with prejudice. About an hour later, Officer Tallion showed up, as scheduled, and the case was recalled. The bailiff realized her error and explained it to the court. The prosecution orally moved for reconsideration of the dismissal based on the mistake. Clemente opposed. The District Court denied the motion. Nine days later, the prosecution filed a written motion for reconsideration. Clemente again opposed and the District Court again denied the motion. The District Court explained that reopening the case would violate the Double Jeopardy Clauses of the State and federal constitutions, HRS § 701-110, and that it did not have jurisdiction to reopen the case. The prosecution appealed.
The Double Jeopardy Clause. "[N]or shall any person be subject for the same offense to be twice put in jeopardy." Haw. Const. Art. I, Sec. 10. Similarly, "nor shall any person subject for the same offense to be twice put in jeopardy of life or limb." U. S. Const. Am. V. These clauses, inter alia, "protect[] against a second prosecution for the same offense after acquittal." State v. Dow, 72 Haw. 56, 58, 806 P.2d 402, 404 (1991). A defendant is "acquitted" "only when the ruling o the judge, whatever its lable, actually represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offense charged." State v. Poohina, 97 Hawai'i 505, 509, 40 P.3d 907, 911 (2002). See also State v. Markowski, 88 Hawai'i 477, 484, 967 P.2d 67, 681 (App. 1998) (defendant could be retried because dismissal based on defective charging was not related to his "guilt or innocence.").
Here, the ICA compared this case to Poohina, where the Hawai'i Supreme Court held that a dismissal sua sponte is not a ruling on the merits of the case and did not rule on the defendant's "guilt." So if that was not an acquittal, the ICA reasoned that Clemente was not acquitted either. Instead, the District Court dismissed the case with prejudice as a sanction against the prosecution for wrongly concluding that it had a no-show witness.
HRS § 701-110: A Similar Analysis. The Double Jeopardy analysis has been codified by HRS § 701-110. A second prosecution is barred by a former prosecution when "the former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by a trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction." HRS § 701-110(1). According to the ICA, this statute "mimics" the constitutional analysis, and it did not go through a second analysis. It simply held that HRS § 701-110 was not a statutory bar for re-trial.
District Court Jurisdiction is good for ten days After the Ruling. The ICA rejected the District Court's conclusion that it had no jurisdiction to revisit the issues raised by the prosecution. The District Court may "[e]nter final judgments; and alter or set aside any judgment within ten days following the date of its rendition or as provided by the rules of the court[.]" HRS § 604-7(a)(3). Here, the ICA noted that the prosecution orally moved for reconsideration within one hour of the dismissal with prejudice. That meant, held the ICA, that the District Court had the power to set aside the dismissal order and it abused its discretion in denying the oral motion.

But What about the Written Motion? The ICA made no reference to the written motion filed nine days after the dismissal. Arguably, the District Court still had the power to review it because it was within the ten day period. But what if the written motion was filed after the ten day period? Under the ICA's analysis, it would probably be irrelevant since the oral motion should have been considered in the first instance.