Saturday, November 30, 2013

Two Complainants + One Charge = Unanimity Instruction

State v. Getz (HSC November 8, 2013)
Background. Chad Getz was charged with a single count of robbery in the second degree. The charging document alleged that Getz used force against “Angela Rueber and/or Jessie Saffery” and had the “intent to overcome Angela Rueber’s and/or Jessie Saffery’s physical resistance.” At his jury trial, two witnesses testified for the prosecution. Rueber and Saffery were loss prevention personnel at Nordstrum. One night, they saw on the surveillance cameras, Getz walk into the store with an Old Navy bag, take a coach purse and walk out of the “handbag department.” Rueber left the office to confront Getz and remained in contact with Saffery by radio. Rueber saw Getz walking toward the exit doors of Nordstrum. Rueber and a salesperson pursued him. Saffery saw what was happening on the video cameras and went to help Rueber and the salesperson. Getz left the store, and was walking toward a stairwell.

Rueber followed him and identified herself. She also ordered him to come back into the store. Getz turned to her and said “no, I’m not going anywhere with you” and turned and continued walking away. Rueber grabbed the purse, but Getz didn’t let go and kept walking down the stairs. They were playing a tug-of-war with the bag. Rueber positioned herself so that she had one hand on the bag with her other arm blocking the stairwell so Getz couldn’t go through. However, Getz “broke through” by pushing his weight and continued down the stairs. This struggle continued through three flights of stairs. Rueber kept trying to sweep Getz’s feet to make him lose balance, but Getz did not fall. He kept walking. He never punched, kicked, or threatened her. Saffery testified that she caught up to the pair and tried to help Rueber. Eventually, a police officer showed up and ordered Getz to stand down. He was compliant and was arrested at the scene. Saffery testified that before the officer arrived, Getz grabbed her arm, but was not clear when that happened.

The Trial Court Leaves out the Unanimity Instruction. The circuit court instructed the jury that one of the elements it must find beyond a reasonable doubt in robbery was that while committing a theft, the defendant “used his force against Angela Rueber and/or Jessie Saffery, a person who was present, with intent to overcome Angela Rueber and/or Jessie Saffery’s physical resistance[.]” The instruction was given by agreement.

During the settling of the instructions, the circuit court withdrew the following standard jury instruction regarding unanimity:

The law allows the introduction of evidence for the purpose of showing that there is more than one [act] [omission] [item] upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that [the same act] [the same omission] [possession of the same item] has been proved beyond a reasonable doubt.

Getz objected to the withdrawal, but the circuit court explained that “no Arceo is necessary” given these facts. The jury was never instructed that it had to agree unanimously as whom Getz used force against. At closing, the prosecution did not single out Saffery or Rueber. Instead, it simply referred to them collectively. The prosecution even focused on the either-or language in the instructions. The jury found Getz guilty as charged and the circuit court sentenced Getz to ten years prison, but reduced the mandatory minimum (he was a repeat offender) from ten to four years. Getz appealed on the grounds that there was insufficient evidence. The ICA affirmed.

The Right to a Unanimous Guilty Verdict. “[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, sections 5 and 14 of the Hawai'i Constitution.” State v. Arceo, 84 Hawaii 1, 30, 928 P.2d 843, 872 (1996). “[U]nanimity extends to all issues which are left to the jury.” Id. Thus, “an accused in a criminal case can only be convicted upon proof by the prosecution of every material element of the crime charged beyond a reasonable doubt, the constitutional precept also implicates the defendant’s right to due process of law[.]” Id.

And the Instructions that Protect that Right. In Arceo, the HSC held that “when separate and distinct culpable acts are subsumed within a single count . . . any one of which could support a conviction . . . and the defendant is ultimately convicted by a jury of the charged offense, the defendant’s constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the ‘conduct’ element of the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.” Id. at 32-33, 928 P.2d at 874-75.

This second requirement has evolved into the Arceo instruction and has been made part of the standard pattern jury instructions. It is intended “to eliminate any ambiguity that might infect the jury’s deliberations respecting the particular conduct in which the defendant is accused of engaging and allegedly constitutes the charged offense.” State v. Valentine, 93 Hawaii 199, 208, 998 P.2d 479, 488 (2000). So the instruction is needed when the prosecution fails to make the election, the prosecution presents proof of two or more separate and distinct culpable acts, and it submits to the jury only one offense was committed. Id.

The Circuit Court Erred in Withdrawing the Instruction. The HSC held that there was a single count of robbery. The charge and the elements for the offense referred to “Rueber and/or Saffery.” There was no election by the prosecution. At closing, the prosecution referred to both of them and treated them collectively. Thus, it is quite possible that some jurors believed that Getz committed the offense against Rueber, while others figured it was Saffery, there might have even been a third group that believed the offense was committed against both of them. This case, according to the HSC, called for the Arceo instruction.

Not a Harmless Error. “[W]hen jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent or misleading.” State v. Mark, 123 Hawaii 205, 219, 231 P.3d 478, 492 (2010). The HSC must also consider if “there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.” Arceo, 84 Hawaii at 12, 928 P.2d at 854.

Here, Getz objected to the withdrawal of the unanimity instruction, but did not raise the issue before the ICA. However, the failure to give a required unanimity instruction is considered plain error. Id. at 33, 928 P.2d at 875. The HSC followed suit and found a reasonable possibility that the omission of this instruction contributed to the conviction. The error was not harmless beyond a reasonable doubt and it vacated the judgment and remanded for new trial.

Waiving your Rights is Tougher than you Think

State v. Gomez-Lobato (HSC October 30, 2013)
Background. Luis Gomez-Lobato was charged with a single count of abuse of a family or household member. At his arraignment, Gomez-Lobato was represented by a lawyer and had the assistance of a Spanish interpreter. Gomez-Lobato pleaded not guilty. Counsel requested a recess in order to go over the jury waiver form with the interpreter. After a recess, the family court had a colloquy with Gomez-Lobato through the interpreter. The family court received the form and asked if the initials on it were his? He said yes. The family court asked if he understood what he was doing and signing before initialing the form? He said yes. The family court asked if the form was explained to him in Spanish? Yes. The family court inquired if he discussed this with his attorney. Yes. And Gomez-Lobato had no questions for the judge. Based on those answers, the family court concluded that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a jury trial.

The prosecution served an amended complaint that changed the date of the alleged incident from Sept. 23, to September 25, 2013. No waiver of jury trial took place. After a one-day bench trial, the family court convicted Gomez-Lobato and sentenced him to probation for two years. He appealed and the ICA affirmed. Gomez-Lobato petitioned for certiorari. The prosecution did not respond.

The Right to a Jury Trial and Waiver of it. A criminal defendant has the right to a trial by jury when the potential penalty is imprisonment for at least six months. HRS § 806-60. And—like most rights—the right to a jury trial can be waived. State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). “[W]aiver shall be either by written consent filed in court or by oral consent in open court entered on the record.” Hawaii Rules of Penal Procedure Rule 23(a). In addition to the rule, the court is still obligated to ensure a knowing, intelligent, and voluntary waiver through an on-the-record colloquy. Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293 (1995); State v. Ibuos, 75 Haw. at 121, 857 P.2d at 578.

“Where it appears from the record that a defendant has voluntarily waived a constitutional right to a jury trial, the defendant carries the burden of demonstrating by a preponderance of the evidence that his/her waiver was involuntary.” State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000).

The Rejection of the Ninth Circuit’s Four-Part Colloquy (Again). The Ninth Circuit has held that  when conducting a colloquy about waiving the right to a jury trial, the trial court must inform the defendant that the right to a jury trial encompasses the selection of twelve members of the community, that the defendant may take part in jury selection, a unanimous verdict, and that when there is a waiver of this right, the court alone decides guilt. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997).

The HSC has rejected this as a mandatory part of the colloquy, and held that these four points are not “constitutionally required.” State v. Friedman, 93 Hawaii at 69, 996 P.2d at 274. According to the HSC, the appellate court must simply assess the “totality of the circumstances surrounding the case, taking into account the defendant’s background, experience, and conduct.” Id. at 70, 996 P.2d at 275. The HSC cautioned trial courts and “advised” that these elements be made part of the colloquy, but it has never required it. State v. Myers, 108 Hawaii 300, 307, 119 P.3d 608, 615 (App. 2005); State v. Mitchell, 94 Hawaii 388, 395, 15 P.3d 314, 321 (App. 200).

The Totality-of-the-Circumstances Reigns Supreme . . . Like Friedman, Gomez-Lobato has argued the need to adopt the bright-line rule by the 9th Circuit. The HSC made it clear that this was not the real issue on appeal. The waiver form included the four elements from Duarte-Higareda. The issue, according to the HSC, was whether the combined effect of the colloquy and the form was enough to show a knowing, voluntary, and intelligent waiver. It wasn’t.

. . . and Here Something More was Needed. The HSC explained that the waiver form was interpreted for Gomez-Lobato and the court communicated to him through an interpreter. The language barrier was significant enough to give the family court notice that his waiver “might be less than knowing and intelligent.” Duarte-Higareda, 113 F.3d at 1003. It should have prompted the family court to ask additional questions “to verify that Gomez-Lobato understood the right he was waiving.” Despite the colloquy and the interpreter, the family court’s questions—do you know what you’re “doing and signing?”—were simply too vague to arise to a voluntary, intelligent, and knowing waiver. The family court did not ask Gomze-Lobato if he “truly” understood the right he was waiving. This is only exacerbated by the fact that the record is void of any information about Gomez-Lobato’s background, experience, and conduct. Thus, the HSC vacated the conviction and remanded for a new trial.

A Very Curious Footnote. The HSC noted that in some cases, a defendant may get a jury trial even when the punishment is less than six months. When the maximum penalty does not exceed 30 days, it is presumed to be a petty misdemeanor and there is no jury trial right. State v. Lindsey, 77 Hawaii 162, 165, 883 P.2d 83, 86 (1994). To overcome the presumption, the court must consider (1) the treatment of the offense at common law, (2) the gravity of the offense, and (3) the authorized penalty for the offense and find that the offense “unequivocally demonstrates that society demands that persons charged with the offense at issue be afforded the right to a jury trial.” Id. If the penalty is more than 30 days, but less than 180 days, then no presumption applies, but the three factors still have to be considered. Id. at 86 n. 5, 883 P.2d at 165 n. 5. Has this intriguing little test has probably been applied to perhaps the most feared of all petty misdemeanors—operating under the influence of an intoxicant?

Justice Acoba’s Concurrence. Justice Acoba wrote separately because he believed that under the constitutional right to a jury trial pursuant to Haw. Const. Art. I, Sec. 14, the right can only be waived when the trial court engages in an on-the-record colloquy that includes notice to the defendant of the four elements from Duarte-Higareda.

Monday, November 4, 2013

The Raw Materials of a Defense

State v. Scott (HSC October 16, 2013)
Background. Kevin Scott and his brother Jefferson Scott were indicted separately out of the same incident involving Leif Martin and Kerry Martin. Jefferson Scott was indicted first and convicted of some of the offenses. Months later, Kevin was indicted for committing assault in the second degree upon Leif, two counts of terroristic threatening in the first upon Leif and Kerry and one count of terroristic threatening in the first degree by a common scheme. Kevin demanded a jury trial.

Scott Requests Transcripts, Audio, and Video Records from his Brother’s Trial . . . Before trial, the prosecution filed notice of its intention to use evidence that Jefferson assisted Kevin after Kevin got into a dispute with the Martins. Kevin filed a motion to continue the trial on the grounds that he needed more time to get transcripts from Jefferson’s trial. The transcripts would assist him in his defense. Kevin’s counsel explained that the reason for not getting the transcripts sooner was caused by plea negotiations that fell through. In addition to the motion to continue, Kevin submitted a request for transcripts of Jefferson’s jury trial proceedings, a pretrial motion hearing, and the sentencing hearing. He later requested an audio disc of the same proceedings.

The prosecution objected to the motion and argued that Kevin failed to show that the requested transcripts were necessary to the defense. The circuit court denied the motion to continue on the grounds that Kevin failed to show a need for the transcripts. The request for the transcripts and audio discs were also denied. The administrative judge wrote that Kevin had no constitutional right to free audio or video in this case.

At trial, Kevin was found guilty of assault in the second degree, terroristic threatening in the second degree, and terroristic threatening in the first degree. The circuit court sentenced him to five years prison. The ICA affirmed the conviction.

The Right to a Transcript in Your Prior Proceedings . . . A criminal defendant has the “right to transcripts of prior proceedings.” State v. Mundon, 121 Hawaii 339, 357, 219 P.3d 1126, 1144 (2009). The government “must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.” Britt v. North Carolina, 404 U.S. 226, 227 (1971). The SCOTUS identified two factors in determining this need: (1) the value of the transcript to the defendant; and (2) the availability of alternatives that would fulfill the same function. Id. at 227-28. Then, with regard to the first factor, the SCOTUS held that there is a great value in transcripts of prior proceedings and the defense is not required to establish “need tailoring to the facts of the particular case.” Id. at 228. The HSC applied this test in Mundon and elaborated on the first factor. It held that “there is innate value to a criminal defendant in being able to review transcripts for trial preparation and impeachment purposes such that a defendant need not show a particularized need for such transcripts.” Mundon, 121 Hawaii at 358, 219 P.3d at 1145.

Once Britten . . . Here, the HSC applied this two-part Britt test to his brother’s trial. The HSC specified that the issue pertained to the transcript of the “co-defendant,” which is defined as the “defendants sued in the same litigation or charged with the same crime.” Black’s Law Dictionary 293 (9th ed. 2009). The HSC first explained that the need for these transcripts is worthy and of great value. The same witnesses testified, the charges were similar, and the underlying incident was the same. Moreover, the prosecution had the advantage of prosecuting Jefferson and had the benefit of examining the witnesses and knew about which areas in the testimony were open for impeachment. In light of this innate value, Kevin did not have to show a particularized need for the transcripts or the DVDs from his brother’s trial.

As for the second prong—availability of alternatives—the burden switches to the prosecution. “A defendant who claims the right to a free transcript does not . . . bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.” Britt, 404 U.S. at 230. In other words, the prosecution has to prove that the defendant has adequate alternatives to a written transcript. In Britt, the SCOTUS held that there was an adequate alternative because the defense conceded that the court reporter “would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.” Id. at 229. The HSC in Mundon, however, found a different result because “the transcript must be available to defense counsel prior to trial if it is to be useful as an impeachment and trial preparation tool.” 121 Hawaii at 358, 219 P.3d at 1145. Here, the HSC held that no alternatives were presented to the defense.

An Open Question on the Remedy. The HSC next examined what to do now that it held that the court erred in precluding transcripts for Kevin. In Mundon the HSC stated that the defendant “was not required to show that he was prejudiced by proceeding to trial without the written transcripts.” 121 Hawaii at 358, 219 P.3d at 1145. Curiously, the HSC noted that this “appears to require automatic reversal when an indigent defendant is wrongfully denied the transcript of his or her prior proceeding.” It then noted that courts of other jurisdictions have held that the wrongful denial of an indigent defendant’s motion for a free transcript requires automatic reversal. See People v. Hosner, 538 P.2d 1141, 1148 (Cal. 1975) (en banc); Kennedy v. Lockyer, 379 F.3d 1041, 1053 (9th Cir. 2004); Turner v. Malley, 613 F.2d 264, 266-67 (10th Cir. 1979); United States v. Pulido, 879 F.2d 1255, 1259 (5th Cir. 1989); United States v. Talbert, 706 F.2d 464, 471 (4th Cir. 1983).

Then again, when it comes to the co-defendant’s transcript, some courts have applied the harmless error standard. State v. Razinha, 599 P.2d 808, 811-12 (Ariz. Ct. App. 1979); United States v. Bamberger, 482 F.2d 166, 168-69 (9th Cir. 1973).

The HSC dodged this question and held that under either standard, the case will be remanded for a new trial—be it automatic reversal or harmless error. The HSC noted that denying the requested transcripts was not harmless beyond a reasonable doubt because the Scott brothers were codefendants with charges arising from the identical incident that involved the same witnesses. This was enough to contribute to Kevin’s conviction.


Justice Acoba’s Concurrence. Justice Acoba wrote separately clearly rejected the harmless error approach for co-defendants’ transcripts and would have adopted the automatic reversal standard that “appears” to be in effect for requests for the defendant’s own transcripts.