Saturday, January 12, 2013

Jurisdictional Snits and the Right to Be at your own Trial


State v. Kaulia (January 4, 2013)
Background. Dennis Kaulia was charged with assault in the third degree. HRS § 707-712(1)(a). Kaulia demanded a jury trial, an attorney, and submitted a notice stating that Kaulia was a "foreign nation to USA and State of Hawaii as a subject of the Kingdom of Hawaii." The other document was a "Motion For Nolle Prosequi With Prejudice As to All Counts." The trial court interpreted these documents as a motion to dismiss the charge for lack of jurisdiction.
A formal motion to dismiss was later filed. Kaulia argued that the motion was based on the continuing existence of the Kingdom of Hawai'i. At the hearing, Kaulia requested an evidentiary hearing and wanted to call witnesses to establish the existence of the kingdom. The request and ultimately the motion were denied.
The prosecution filed a motion to amend the complaint to provide for only a petty misdemeanor of assault by mutual affray--an offense for which Kaulia had no right to trial by jury. The prosecution moved to remand the case back to the district court. The motion was granted and the case was remanded to district court.
Before the bench trial began, Kaulia attempted to revive his jurisdiction issue. The district court called him out of order and proceeded to trial. Before the first witness was sworn, Kaulia announced that he was walking out of the courtroom. The district court warned him that if he did that, the trial would still proceed without him. Kaulia walked out. After a recess, trail began without Kaulia. His attorney objected on the grounds that it could not proceed without him. The objection was overruled.
Trial proceeded without Kaulia. The district court found him guilty. Kaulia appealed and the ICA affirmed the conviction, but remanded for re-sentencing on other grounds. Kaulia appealed.
Criminal Jurisdiction Extends to those Claiming to be Citizens of the Hawaiian Kingdom. The HSC first took up the jurisdictional issue. The court rejected Kaulia's argument that the district court erroneously deprived him of the opportunity to present evidence establishing the illegality of the State of Hawai'i, which would have supported his argument that the district court had no jurisdiction over the case.
The "state's criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawai'i." State v. Jim, 105 Hawai'i 319, 330, 97 P.3d 395, 406 (App. 2004); see also HRS § 701-106. The prosecution alleged that Kaulia committed a crime based on conduct that took place in Kona on the Big Island. According to the HSC, that meant that Kaulia came within the ambit of the State of Hawai'i's criminal jurisdiction. The HSC did not delve into the legality of the State and reaffirmed that "[w]hatever may be said regarding the lawfulness" of the State's admission into the Union, "the State of Hawai'i . . . is now, a lawful government." State v. Fergerstrom, 106 Hawai'i 43, 55, 101 P.3d 652, 664 (App. 2004). Relying on decisions mainly from the ICA, the HSC stated that "[i]ndividuals claiming to be citizens of the Kingdom and not the State are not exempt from application of the State's laws." Id. at 55, 101 P.3d at 664; State v. Lorenzo, 77 Hawai'i 219, 883 P.2d 641 (App. 1994); State v. French, 77 Hawai'i 22, 883 P.2d 644 (App. 1994); Nishitani v. Baker, 82 Hawai'i 291, 921 P.2d 1182 (App. 1996); State v. Lee, 90 Hawai'i 130, 976 P.2d 444 (1999).
But no Jurisdiction Because of the Right to a Jury Trial. Whenever the defendant has "the right to a trial by jury in the first instance, the district court, upon demand by the accused for a trial by jury, shall not exercise jurisdiction over the case, but shall examine and discharge or commit for trial the accused as provided by law[.]" HRS § 604-8(a). Kaulia had a right to a jury trial because he was charged with a misdemeanor. HRS §§ 707-712(2) and 706-663; HRS § 806-60 (right to jury trial extends to offense which may result in imprisonment for six months or more); State v. Kasprzycki, 64 Haw. 374, 375, 641 P.2d 978, 978-79 (1992) (no constitutional right for "petty" misdemeanors that would only result in maximum of 30 days jail).
Here, Kaulia demanded a jury trial and the district court committed the case to the circuit court. Then, the prosecution filed an amended complaint alleging only a petty misdemeanor in the circuit court and requested the case to be remanded back to the district court. The motion was granted and remanded without any waiver of the right to a jury trial. According to the HSC, because the prosecution failed to file the petty misdemeanor complaint in the district court and because Kaulia did not waive his right to a jury trial, the prior demand for a jury trial was never extinguished. Waiving the right to a jury trial must be on the record and expressly made. HRPP Rule 5(b)(3); State v. Young, 73 Haw. 217, 220, 830 P.2d 512, 514 (1992) ("waiver of right to a trial by jury cannot be presumed by a silent record"); State v. Swain, 61 Haw. 173, 175, 599 P.2d 282, 284 (1979). Thus, the district court when it was remanded did not have jurisdiction to hear the case for a petty misdemeanor of assault by mutual affray.
The Right to be Present for one's own Trial. "The defendant shall be present at the arraignment, at the time of the plea, at evidentiary pretrial hearings, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence[.]" HRPP Rule 43(a).  This right to be present at every critical stage of a criminal proceeding "is founded upon the Confrontation and Due Process clauses of both the United States and Hawai'i Constitutions." State v. Walsh, 125 Hawai'i 271, 285, 260 P.3d 350, 364 (2011). Relying on cases from other jurisdictions, the HSC noted that this right is extremely important because once it is waived, the defendant also waives the right to confront and cross-examine witnesses and the right to testify in his or her own defense. Diaz v. United States, 223 U.S. 442, 455 (1912). Even if the defendant's counsel continues the trial without the defendant, "any later challenge to a defendant's Sixth Amendment right to effective counsel is limited since a defendant who waived his right to be present during trial is unavailable to aid counsel in his representation, and cannot later claim counsel's trial strategy unreasonable." Commonwealth v. Vega, 719 A.2d 227, 231 (Pa. 1998).
According to the HSC, when Kaulia announced that he was walking out of the courtroom, he expressed an intention to waive "not only his constitutional right to be present, but also his right to confront witnesses, his right to testify in his own defense, and his right to assist his counsel in defending against the charge." These are three very important rights. The district court failed to inform Kaulia about them.
The Right to be Present at Trial Can be Waived, but After a Colloquy. The HSC next examined whether Kaulia adequately waived his rights. Looking back to Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995), the HSC noted that in the past, the best way to ensure an adequate waiver of constitutional rights is through an on-the-record colloquy with the defendant. They are required to ensure an adequate waiver of the right to testify, Id., the right to a jury trial, State v. Ibuos, 75 Haw. 118, 857 P.2d 576 (1993), the right to have guilt proven beyond a reasonable doubt (i.e. entry of guilty plea), State v. Vaitogi, 59 Haw. 592, 585 P.2d 1259 (1978), and the right to counsel. State v. Vares, 71 Haw. 617, 801 P.2d 555 (1990). Given this precedent, the HSC held that before a trial court can proceed without the defendant present, the court must conduct an on-the-record colloquy with the defendant to identify the constitutional rights being waived and ensure that the waiver of those rights are knowingly, voluntarily, and intelligently waived.
But When must it be done? The HSC next addressed when a colloquy has to be made. When a defendant is voluntarily absent from the proceedings, it may operate as a waiver of the right to be present regardless of "whether or not the defendant has been informed by the court of the obligation to remain during trial." State v. Caraballo, 62 Haw. 309, 323, 615 P.2d 91, 100 (1980). The HSC, however, held that once the court is informed of the defendant's intention to leave the courtroom, "it should seek to advise the defendant of the constitutional rights the defendant will be giving up by" leaving.
But this test fashioned by the HSC depends on the circumstances. The HSC noted that there are times when it would be difficult or even impossible for a trial court to be informed of the defendant's intention to leave. Nonetheless, when (1) the trial court is informed of the intention to leave and (2) there is an opportunity to advise the defendant, "the court should inform the defendant of the constitutional rights that will be forfeited by leaving the courtroom."
As for Kaulia, both were prongs were met. Kaulia said he was going to "walk out" of the proceedings. But it was unclear if he was going to follow through with it. He had appeared voluntarily before. Furthermore, had the district court engaged in a colloquy, then it could have had some kind of "salutary effect of persuading [Kaulia] to remain[.]" Thus, the HSC held that in these circumstances, the district court should have engaged or at least attempted to engage in an on-the-record colloquy.
. . . Other Issues. There were other issues to relating to just how clear Kaulia's mind was given the fact that he disclosed that he was on medication and on the Double Jeopardy Clause.
Historical Note. This is Justice Richard Pollack's first published opinion as an associate justice of the Hawai'i Supreme Court. Congratulations, Justice Pollack! 

Tuesday, January 8, 2013

Excessive Speeding Requires Mens Rea and is not Strict Liability Offense


State v. Gonzalez (HSC November 28, 2012)
Background. Jose R. Gonzalez was charged with excessive speeding. HRS § 291C-105(a). At his arraignment, he was orally charged with the following:
[Gonzalez,] you're charged with on or about the 14th of January, 2011, in the City and County of Honolulu, State of Hawaii, you did drive a motor vehicle at a speed exceeding the applicable State of Hawaii or county speed limit by 30 miles per hour or more and/or 80 miles per hour or more irrespective of the applicable State of Hawai'i or county speed limit. By doing so you violated Section 291C-105(a)(1) and/or (a)(2) of the Hawai'i Revised Statutes.
Gonzalez orally moved to dismiss the charge on the grounds that the charge failed to state the requisite state of mind. The prosecution argued that state of mind is not required. The motion was denied.
At trial, HPD Officer Jeremy Franks testified that on the H-2 Freeway just before the Mililani Mauka off-ramp he used his Laser Technology Incorporated (LTI) Ultralyte 100 Laser to measure an oncoming vehicle's speed. The laser gun clocked the vehicle in at 96 m.p.h. in a 55-mph zone. Officer Franks stopped the vehicle. Officer Franks testified that he had been trained in using the laser gun and had verified the accuracy of the gun on the day he used it on the freeway. He explained that his training comprised of four hours of operational training in January 2003 at the police academy and more training by "LTI representatives" and a retired HPD sergeant, Bobby Lung. Officer Franks also testified that he had a manual on the laser gun, which requires four separate tests that must be done before it is used. Officer Franks testified that all four tests were done before using the laser gun. On cross-examination, Officer Franks admitted that the manual with the four tests for the laser gun was not the same manual that came with the laser gun. Nonetheless, the manual he used did have the HPD seal and the LTI copyright.
Gonzalez testified. He testified that he was a military police officer in the United States Army and on that day he was driving next to a black jeep which was driving erratically. Gonzalez testified that he sped past it to get away from it. He also testified that his own vehicle had problems with the transmission and whenever he would try to drive faster than fifty-five m.p.h., the vehicle would start to shake. He testified that on the day he was pulled over, the vehicle was not shaking. The district court found Gonzalez guilty as charged and added that it found that the prosecution had proven a "reckless" state of mind.
 Although there is no mention of it in the opinion, there is no analysis by the ICA or even mention of the ICA. This suggests that the appeal was transferred directly to the HSC.
The Prosecution Waived the Argument on Appeal that Excessive Speeding is a Strict Liability Because it did not Raise the Issue Before the Trial Court (Even if the Prosecution did Prevail). The HSC first examined a procedural point: whether the prosecution is precluded from raising the argument that excessive speeding is a strict liability offense for the first time on appeal. It is well-settled that "the failure to properly raise an issue at the trial level precludes a party from raising that issue on appeal." State v. Kikuta, 125 Hawai'i 78, 89, 253 P.3d 639, 650 (2011). At the same time, however, the HSC noted that this usually does not apply to the party that has prevailed below.
Nonetheless, the HSC noted that "a party can waive an argument by failing to raise it at trial even if the party ultimately prevails on that issue." See Id., State v. Harada, 98 Hawai'i 18, 30, 41 P.3d 174, 186 (2002); State v. Rodrigues, 67 Haw. 496, 498, 692 P.2d 1156, 1158 (1985). Here, the HSC noted that the prosecution had the chance to argue that HRS § 291C-105(a) was a strict liability offense when Gonzalez moved to dismiss the charge on the grounds that no mens rea had been articulated. It did not. Instead, it argued that mens rea was not an element and did not need to be included in the charge. The prosecution cannot, according to the HSC, now raise this issue for the first time on appeal.
Strict Liability v. No Mens Rea: Apparently it's Different. It looks like the HSC is really tightening up its analysis of waived arguments for appellate purposes. Here, the HSC held that the prosecution waived its argument that excessive speeding is a strict liability offense because it did not raise that particular issue before the district court. This waiver may have happened even though the prosecution prevailed below and even though the prosecution argued that mens rea is not an element of the offense and, thus, need not be charged. So what exactly was the issue raised below?
It looks like the HSC has distinguished the issue of whether an offense has mens rea as an element from the issue of whether the same offense is a strict liability offense. Isn't this the same issue? Isn't an offense without a state of mind a strict liability offense? Apparently not. But what makes it even more difficult to figure out is that back in April, the HSC expressly noted that mens rea must be pleaded even though it is by definition not an element of the offense. Does that mean that there is no argument for the prosecution left to pursue on appeal because the district court prosecutor argued that mens rea was not an element and therefore needn't be pleaded as opposed to arguing that the offense was a strict liability offense requiring no proof of mens rea and therefore needn't be pleaded? Guess so.
Excessive Speeding Offense is Not a Strict Liability Offense. The HSC, cognizant that this issue would arise again and soon, examined the issue anyways. Criminal offenses found outside the Hawai'i Penal Code require proof of a state of mind unless "a legislative purpose to impose absolute liability plainly appears." HRS § 702-212. The commentary to the statute explains that in most cases, state of mind is required and there are "relatively few instances when absolute or strict liability will be recognized." Strict liability applies to offenses only if the statute "expressly impose[s] absolute liability," State v. Eastman, 81 Hawai'i 131, 140, 913 P.2d 57, 60 (1996), or (2) the legislative history "unequivocally indicates" the intention to get rid of the state-of-mind requirement. State v. Buch, 83 Hawai'i 306, 316, 926 P.2d 599, 607 (1996). According to the HSC, neither the statute's language nor history show any intention to eliminate the mens rea requirement. Thus, the prosecution must prove that in excessive speeding cases, the defendant acted intentionally, knowingly, or recklessly. HRS § 702-204.
In light of that holding, the prosecution conceded that the mens rea language needed to be part of the charge and should be dismissed without prejudice. State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012).
There was Adequate Foundation to show that the Laser Gun was Accurate. The HSC also examined the evidentiary issues raised at trial because of the likelihood of a retrial. Before the reading of a laser gun can be admitted at trial, the prosecution must lay a foundation that (1) that particular laser gun was complied with "accepted procedures" in testing its accuracy that have been recommended by its manufacturer and (2) the officer who used the laser gun met the training requirements approved by the manufacturer. State v. Assaye, 121 Hawai'i 204, 213-15, 216 P.3d 1227, 1236-38 (2009).
The HSC held that the prosecution laid enough foundation to show the laser gun was accurate. The manual used by Officer Franks may not have been the one provided by the manufacturer. However, the manual with the four tests was reviewed by LTI personnel, had the LTI copyright on it, and information from LTI personnel had been covered in the manual. That was enough for the district court and the HSC held that the district court did not abuse its discretion.
. . . but not Enough Foundation to show Proper Training. Establishing manufacturer-approved training is another story. Assaye requires evidence that "the nature and extent of an officer's training in the operation of the laser gun meets the requirement indicated by the manufacturer." Id. at 215, 216 P.3d at 1138. The HSC broke this requirement down into two parts: proof of "(1) the requirements indicated by the manufacturer, and (2) the training actually received by the operator of the laser gun."
The prosecution here showed only the training actually received by Officer Franks. There was no evidence of what the manufacturer required. There was no evidence establishing what exactly was recommended by the manufacturer.