Thursday, July 18, 2013

Hearsay Statements Contained in Sworn Statements still Unreliable at ADLRO Hearings

McGrail v. Admin. Dir. of Courts (ICA July 18, 2013)
Background. Patrick McGrail was arrested for operating a vehicle while under the influence of an intoxicant. In her police report, HPD Officer Jasmine McGuire wrote that she was in her car driving eastbound on Kalakaua Avenue “in the mauka most lane” when she saw a sedan ahead of her with no tail lights. McGuire wrote that the vehicle was “moving unsmooth” and “made a left turn onto Pau Street without signaling.” McGuire followed the sedan onto Pau Street, where it continued “making unsmooth movements while changing lanes[.]” McGuire wrote that she saw the sedan hit a sidewalk with its passenger side tire, but no damages were reported. Then the sedan “jerk[ed] suddenly away from the curb and turn left onto Ala Wai Boulevard” and straight toward another curb. McGuire then conducted a traffic stop.

Officer Marc Cobb-Adams came to the scene. McGuire briefed Cobb-Adams and Cobb-Adams conducted field sobriety maneuvers on McGrail. Cobb-Adams also claimed to have smelled alcoholic beverages from McGrail’s breath and body and saw that McGrail had watery and glassy eyes. Cobb-Adams reported that McGrail staggered out of his vehicle and performed the maneuvers poorly. Cobb-Adams was arrested. After the implied consent forms were read to him, McGrail agreed to a breath test. The results came to 0.259 grams of alcohol per 210 liters of breath. He was later served a notice of administrative revocation of his driver’s license.

The reports were submitted to the Administrative Driver’s License Revocation Office. Cobb-Adams’ report was sworn by him to be true and correct. McGrail did not. The ADLRO determined that there was sufficient evidence to revoke his license. McGrail challenged the determination and requested a hearing. Eventually, McGrail moved to strike McGuire’s unsworn report and the unsworn statements of McGuire in Cobb-Adams’ report. The hearing officer granted the motion in part by striking McGuire’s report, but keeping her statements in Cobb-Adams’ report. The hearing officer also upheld the revocation. McGrail requested judicial review and the district court affirmed. McGrail appealed to the ICA.

Challenging an Administrative Revocation. Once a license is revoked, the revocation is affirmed only if the ADLRO determines (1) there was a reasonable suspicion to stop the vehicle; (2) there was probable cause to believe the driver was under the influence of an intoxicant; (3) there was preponderant evidence that the driver was operating a vehicle while under the influence of an intoxicant. HRS § 291E-38(e).

In this case, McGuire was the only officer who observed McGrail’s driving and the hearing officer struck her report because it was not a sworn statement by the officer. That means that the only evidence establishing a reasonable suspicion for the stop came from the McGuire’s hearsay statements contained in Cobb-Adams’ report.

Hearsay in Administrative Proceedings . . . According to the ICA, the issue turned on the use of McGuire’s hearsay statements in the Cobb-Adams report. Hearsay is generally admissible at administrative proceedings. See Price v. Zoning Bd. of Appeals, 77 Hawaii 168, 176 & n. 8, 883 P.2d 629, 637 & n. 8 (1994). McGrail, however, argued that the statutory scheme governing ADLRO proceedings places so much emphasis on sworn statements that the unsworn hearsay statements used by the hearing officer cannot be used. The ICA agreed.

ADLRO Proceedings Hinge on “Sworn Statements.” The ICA began with an overview of HRS Ch. 291E, Part III—better known as the ADLRO process. According to the ICA, in establishing this process, the Legislature “emphasized the importance of sworn statements by requiring them for police and government officers playing key roles in the revocation process.”

For example, the ICA looked at HRS § 291E-36(a). In order to revoke a license, the ADLRO has to receive “the sworn statement of the arresting law enforcement officer . . ., stating facts that establish” reasonable suspicion for the stop, probable cause to believe that the driver was OUI, and that the driver agreed to submit to a chemical test. Moreover, when a blood or breath test is used, the ADLRO must receive sworn statements from “the person responsible for maintenance of the testing equipment” that establishes that the equipment was approved for use in Hawaii, that the person was trained and certified to use the equipment, and the equipment was in proper working order when it was used. Id. The ADLRO also has to receive a sworn statement from the person who actually conducted the chemical test that shows proper training to operate the equipment, that the person followed the proper procedures related to the test, that the equipment was functioning properly, and that the breath or blood sampled belonged to the driver. Id.

And in order to sustain that revocation, the hearing officer must consider the “sworn statement of any law enforcement officer or other person or other evidence or information required by section 291E-36.” HRS § 291E-37(c)(3). At an ADLRO hearing, the hearing officer is required to admit into evidence all sworn statements. HRS § 291E-38(h).

Hearsay is Frowned Upon at ADLRO Hearings. The importance of sworn statements means that hearing officers “must exclude from the record . . . all unsworn statements (except the arrest report) of law enforcement officials who do not appear to testify[.]” Desmond v. Admin. Dir. of the Courts, 91 Hawaii 212, 220, 982 P.2d 346, 354 (App. 1998), rev’d on other grounds, 90 Hawaii 301, 978 P.2d 739 (1999). The reliance on sworn statements, according to the ICA, also ensures reliability.

Can’t Bootstrap Hearsay at the ADLRO. Given the importance of sworn statements in these proceedings, the ICA held that the hearing officer erred in considering the unsworn statements of McGuire that were included in the Cobb-Adams report. In more general terms, the ICA held that “where . . . the Arresting Officer played no role in, and had no influence on, the decision to stop the vehicle, the hearing officer cannot consider the unsworn statements of the Stopping Officer in determining whether there was reasonable suspicion for the stop simply because the Stopping Officer’s unsworn statements were included in the sworn police-report statement of the Arresting Officer.” To rely on those statements would conflict with the legislative intent behind the ADLRO procedures, Desmond, and its reliability would be questioned.

Thus, the hearing officer erred in relying on the hearsay statements and the ICA reversed the district court’s judgment affirming the revocation.

Grand Juries: Begging the Question. The ICA examined not the plain language of any particular statute here. There is no statute that really applies to this situation. Police reports contain a lot of different statements out there. They record the observations of the officer, and take down statements of witnesses and other officers. It seems that in ADLRO proceedings, the ICA is convinced that when those reports, which are sworn to be true by the officer writing the report, contain statements of fellow officers that have not been verified, those statements are unreliable and cannot be used by the hearing officer. That makes sense. It’s hearsay—even if the rule doesn’t apply in an administrative context. And the rationale is fairly sound: the statutory scheme frowns upon it.

McGrail Clashing with Murphy and Costello? Decades ago, defense attorneys were challenging the sufficiency of evidence adduced before Grand Juries. Officers are often sworn in to testify before the Grand Jury and once there, they tell present hearsay statements of other officers, witnesses, and sometimes the professional opinions of doctors and experts. The HSC confronted the issue head on in State v. Layton, 53 Haw. 513, 497 P.2d 559 (1972). There, the HSC noted the uneasiness courts felt about the prosecution’s reliance on “excessive hearsay.”

[W]e think it not amiss for us to state that excessive use of hearsay in the presentation of government cases to grand juries tends to destroy the historical function of grand juries in assessing the likelihood of prosecutorial success and tends to destroy the protection from unwarranted prosecutions that grand juries are supposed to afford the innocent. Hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge.

Id. at 515, 497 P.2d at 561 (quoting Costello v. United States, 350 U.S. 359 (1956).

Later, the HSC watered down the standard even further and held that “where the hearsay testimony was not used deliberately in the place of better evidence to improve the case for an indictment, dismissal of the indictment is not required.” State v. Murphy, 59 Haw. 1, 6, 575 P.2d 448, 453 (1978). Since Murphy, it has been extremely difficult to find excessive hearsay being used deliberately and in the place of better evidence. In fact, the HSC has not thrown out a there is no published case showing that the standard has been met. See State v. Corpuz, 67 Haw. 438, 440, 690 P.2d 282, 285 (1984).


But that’s grand juries returning indictments for serious felonies. The administrative review of a driver’s license revocation, however, is a different matter entirely and hearsay is clearly impermissible. Perhaps it’s time for the defense bar to revisit the old Murphy rule.

Tachibana Colloquy has to be an Actual Colloquy

State v. Han (HSC June 19, 2013)
Background. Chong Hung Han was charged with one count of abuse of a family or household member. HRS § 709-906. On the first day of trial, the court held the following exchange with Han without the help of an interpreter:

[Y]ou have a constitutional right to testify in your own defense. You should consult with your lawyer regarding the decision to testify. However, it is ultimately your decision, and no one can prevent you from testifying should you choose to do so. If you decide to testify, the prosecutor will be allowed to cross-examine you based on your direct testimony.
            You also have a constitutional right not to testify and to remain silent. If you choose not to testify, the jury will be instructed that it cannot hold your silence against you in deciding your case.
            If you have not testified by the end of the trial, I will question you to ensure that it was your decision not to testify.
            Do you have any questions about what I just explained?
[Han]: (No audible response)
THE COURT: Okay, thank you very much.

At the end of trial, Han rested. The family court had this exchange with Han, but this time, he had an interpreter:

            THE COURT: Oh, okay. All right. And so let me take this opportunity, then, to question your client again and—before we bring in our jury.
All right, [Han], good morning. Your attorney just informed the court that you are not going to testify on your behalf.
            [Han]: (Through an interpreter) Yes.
            THE COURT: Okay. All right, remember in the beginning—beginning of our trial, this court advised you of your rights. And that is, one, you have the right to testify on your behalf, and that—that decision to testify—whether to testify or not is your decision alone and that nobody can force you to testify. And then, of course, second, you also have the constitutional right to remain silent and that if you decide to exercise your right to remain silent, the jury will be instruct—will be instructed not to hold that against you.
            Okay. And—and I trust that you have—now that the State has finished its case and you had a chance to discuss what happened with your attorney, and based on that discussion, you have decided that you are not going to testify on your behalf. Is anybody threatening or forcing you this morning not to testify?
[Han]: (Through an interpreter) No.
THE COURT: The decision not to testify is yours and yours alone after you have discussed the matter with your attorney.
[Han]: (Through an interpreter) Yes.

Han never testified, he was found guilty, and the court sentenced him to probation with two days jail. Han appealed. The ICA affirmed. Han petitioned for certiorari.

Know your Rights . . . “A defendant’s right to testify in his or her own defense is guaranteed by the constitutions of the United States and Hawaii and by a Hawaii Statute.” Tachibana v. State, 79 Hawaii 226, 231, 900 P.2d 1293, 1298 (1995). To protect that right, “trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.” Id. at 1303. Specifically, the court must inform the “(1) that he or she has a right to testify, (2) that if he or she wants to testify that no one can prevent him or her from doing so, and (3) that if he or she testifies the prosecution will be allowed to cross examine him or her. In connection with the privilege against self-incrimination, the defendant should also be advised that (4) he or she has a right not to testify and (5) that if he or she does not testify then the jury can be instructed about that right.” Id. at 236 n. 7, 900 P.2d at 1303, n. 7. The advisement should also be given at the start of the trial. State v. Lewis, 94 Hawaii 292, 297, 12 P.3d 1233, 1238 (2000).

No Waiver, Know Nothing. Han argued that there was insufficient evidence that he had waived his right to testify at trial. Waiver of a fundamental right must be done voluntarily and intelligently and “this court will look to the totality of the facts and circumstances of each particular case.” State v. Friedman, 93 Hawaii 63, 66-67, 996 P.2d 268, 273-74 (2000). The HSC agreed with Han that he did not knowingly, intelligently, and voluntarily waived his right to testify.

“The Ultimate Colloquy.” “[I]n order to protect the right to testify under the Hawaii Constitution, trial courts must advise criminal defendants of their right to testify and must obtain a waiver of that right in every case in which the defendant does testify.” Tachibana, 79 Hawaii at 236, 900 P.2d at 1303. This has to be a colloquy, “an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” Black’s Law Dictionary, 300 (9th ed. 2009).

The HSC held that this case did not have a true colloquy. There was no real discussion or exchange to determine and ascertain Han’s understanding of his rights. The trial court simply announced that Han had a right to remain silent and if he exercised that right, the jury will be instructed not to hold the silence against him. The HSC noted that the trial court should have inquired whether Han knew what that meant and whether he understood those principles.

The trial court then stated that since Han spoke to his attorney, he had decided not to testify. The trial court did engage with Han to ensure that that was his decision. These failings rendered the colloquy defective.

Just the Salient Facts, Ma’am. The HSC turned to federal cases that have examined the language barrier in the context of waiving constitutional rights. “[L]anguage barrier, like [] mental illness, is a salient fact that was known to the district court and put the court on notice that [the defendant’s] waiver might be less than knowing and intelligent.” United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997). The HSC noted that language barriers and mental illness are “salient facts” that underscored the importance of conducting a true colloquy before the defendant waives his or her rights.

Dodging the First Challenge. There were two advisements in this case. The first took place before trial began and the second at the close of the defendant’s case. Han argued that during the first advisement, Han provided no “audible indication” that he understood his rights. Because the HSC found error in the second advisement, it dodged Han’s challenge that the failure to ascertain whether he properly understood his rights for the first one rendered the advisement defective. The HSC specifically noted that even though an on-the-record waiver of the defendant’s right is not required before trial, it really helps the court to review on appeal.

Not Harmless Error. “Once a violation of the constitutional right to testify is established, the conviction must be vacated unless the State can prove that the violation was harmless beyond a reasonable doubt.” Tachibana, 70 Hawaii at 240, 900 P.2d at 1307. An error cannot be harmless if “there is a reasonable possibility that the error might have contributed to the conviction.” State v. Schnabel, 127 Hawaii 432, 450, 279 P.3d 1237, 1255 (2012).


The prosecution did not argue that the error was harmless (it argued there was no error). Moreover, the HSC noted that the evidence presented at trial included some physical evidence, and the testimony of the complainant. Han’s closing argument, however, noted that the physical evidence did not match with the complainant’s version of events and that the complainant was not credible. Had Han testified, the jury would have to weigh the conflicting versions of events and then determine if the prosecution had proved its case. This rendered the failure to adequately engage in a colloquy an error that was not harmless beyond a reasonable doubt.