Monday, January 27, 2014

Pleading Not Guilty Essential Before Being Found Guilty

State v. Basnet (HSC December 18, 2013)
Background. Sushil Basnet was charged by way of complaint with a single count of abuse of family or household member after he was arrested one morning at the Himalayan Kitchen. The complaint generated by the prosecution was captioned in the district court. He was served with a penal summons to appear before the family court after he bailed out. When he appeared at the family court he waived the oral reading of the charge, entered a not guilty plea, and demanded a jury trial. The family court ordered Basnet to appear before the circuit court.

At the circuit court, the parties appeared and indicated that they were ready for trial. The circuit court set the case for trial the next day. They returned, but were told to come back one week later. The prosecutor then orally moved to amend the complaint to change the heading from “district court” to “family court.” Basnet objected. A week later, Basnet argued that under the rules of penal procedure, in a non-felony case, he could not be arraigned in the circuit court. That had to happen in the district court. He also argued that the complaint’s failure to define the term “family or household member” rendered it deficient. The circuit court rejected these arguments and allowed the prosecution to amend the complaint. The jury found Basnet guilty and he was sentenced as charged. Basnet appealed and the ICA affirmed the judgment.

The Tricky Transition to the Trial Court. The arraignment is a critical stage of a criminal proceeding. The arraignment formally apprises the accused of the actual charges brought on by the government and the formal response to those charges. Territory v. Marshall, 13 Haw. 76, 83 (Terr. 1900).  It is a critical stage in the criminal prosecution. Hamilton v. Alabama, 368 U.S. 52, 54 (1961). “A defendant who has been held by district court to answer in circuit court shall be arraigned in circuit court within 14 days after the district court’s oral order of commitment following . . . arraignment and plea, where the defendant elected a jury trial[.]” HRPP Rule 10(a). The HSC held that this rule requires a new arraignment to the circuit court after the district court issues its order of commitment to the circuit court. And so, the family/circuit court’s failure to arraign Basnet was error.

An Arraignment, no big deal right? Wrong (but only if you Object). “[T]here must be in every criminal case an arraignment and plea, the object of the arraignment being to identify the accused, inform him of the charge and obtain his plea, the object of the plea being to make an issue to be tried.” Terr. v. Marshall, 13 Haw. at 83.

At the same time, the failure to arraign can easily be waived. State v. Kikuchi, 54 Haw. 496, 510 P.2d 781 (1973). In that case, the defendant never objected to the absence of an arraignment and went to trial. The HSC held that because he “had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution he has suffered no prejudice.” Id. at 500, 510 P.2d at 783.

But unlike that case, Basnet objected throughout the course of his trial. The HSC noted that this was analogous to challenges to the sufficiency of the complaint or charging instrument. When you don’t object to it, then the defendant on appeal must show prejudice “or that the indictment or complaint cannot within reason be construed to charge a crime.” State v. Merino, 81 Hawaii 198, 915 P.2d 672 (1996).

The Complaint is Fine. Basnet also challenged the complaint itself. He argued that because the charge did not include the statutory definition of “family or household member,” it was unconstitutionally deficient. The term “family or household member” includes spouses, reciprocal beneficiaries, former spouses and former reciprocal beneficiaries, persons in a “dating relationship,” which is further defined under HRS § 586-1, persons with a child in common, parents, children, persons related by consanguinity, and persons “jointly residing or formerly residing in the same dwelling unit.” HRS § 709-906(1). Basnet argued that this is an essential element and the statutory definition must be included in the charging instrument. The argument is based on the now-well-established State v. Wheeler, 121 Hawaii 383, 219 P.3d 1170 (2009). The HSC disagreed and simply concluded that the term “family or household member” is “readily comprehendible to a person of common understanding.”

“Operate” v. “Family or Household Member.” It looks like that the HSC in a few short years has distanced itself from Wheeler. According to the HSC, the term “operate” in the DUI statute does not provide adequate notice of all the elements to the offense because the term “operate” is limited to driving or having physical control of the vehicle on a public way, street, road or highway. HRS § 291E-1. This is different. The term “family or household member” provides adequate notice because—as we have learned—it’s readily comprehendible to folks of a common understanding. Perhaps. It is difficult to discern what is readily comprehendible and what needs further elaboration in a charging document.

Readily Comprehendible that Former Roommates are “Household Member”? The term “family or household member” covers a lot of the obvious: spouses, parents, children, and baby mommas and daddies. But it also covers former roommates and those in a dating relationship—yes, folks without kids who were never married and are just, well, going out with each other. Policy arguments to include those people aside, is it readily apparent that the term “family or household member” should include boyfriends, girlfriends, and former roommates? Apparently so.

“Physical Abuse” is Clear Enough too. The HSC also held that the term “physical abuse” needn’t be defined in the written charge. The term is not defined by statute, but has been interpreted to mean “to maltreat in such a way as to cause injury, hurt or damage to that person’s body.” State v. Nomura, 79 Hawaii 413, 416, 903 P.2d 718, 721 (App. 1995). This was just as readily comprehendible for the HSC.

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