Thursday, January 30, 2014

Parents have Constitutional Right to Counsel Against DHS

In re TM (HSC January 6, 2014)
Background. Mother had her child, TM, when she was fifteen years old. About a year later, mother was diagnosed with mental health issues. The Department of Human Services filed two petitions for foster care. One for the mother and the other for TM. At the initial hearing on both petitions, the family court addressed all of the parents and encouraged them to get counsel. If they could not afford counsel, the court would review an application and appoint one if they qualified. The family court then addressed Mother and said it would “find a person that can act” as both a guardian ad litem and a lawyer. Mother’s guardian appeared at subsequent hearings and told the family court that there may be a conflict of interest between what is in Mother’s best interest and what she wants to do about her child. No lawyer was appointed. For nearly two years, no lawyer was appointed. Finally, DHS moved to terminate Mother’s rights to TM.

When Mother turned 18, her case as a child was dismissed. The family court eventually appointed counsel for Mother in anticipation of the termination of parental rights hearing. Soon after the appointment of counsel, Mother tried to continue the hearing. All motions to continue were denied. At the hearing, Mother presented evidence that she was improving her situation and with more time she could have a stable house, job, and motor vehicle. Again, the motion was not continued. The family court granted Mother’s motion to terminate parental rights. Mother appealed. The ICA affirmed; Chief Judge Nakamura dissented. Mother petitioned for certiorari.

An Abuse of Discretion under the Old Standard . . . The family court “may” appoint counsel for indigent parents in proceedings involving child custody. HRS § 587A-34 and 17. The decision on when and whether to appoint counsel was reviewed for an abuse of discretion. In re Doe, 99 Hawaii 522, 57 P.3d 477 (2002). Under this standard, the HSC held that the family court abused its discretion in waiting almost 19 months before appointing counsel. DHS must and will file a motion for the termination of parental rights if a child is in temporary foster care for more than 24 consecutive months. HRS § 587A-33. Still, there was no indication that Mother was aware of this deadline. The record also showed that the family court was well aware of the need for an attorney, but did nothing to appoint one for over nineteen months. The absence of counsel was brought to the family court’s attention during this period, but nothing happened. In sum, the HSC held that the failure to appoint counsel during the first 19 months and with only 5 months before a termination of parental rights hearing was an abuse of discretion.

. . . And a now for the New Standard. According to the HSC, this case “reveals the inadequacy of an approach that allows the appointment of counsel to be determined on a case-by-case basis once DHS moves to assert foster custody over a child.” It is well-established that “parents have a substantial liberty interest in the care, custody, and control of their children protected by the due process clause of article I, section 5 of the Hawaii Constitution.” In re Doe, 99 Hawaii at 533, 57 P.3d at 459. Because of that constitutional dimension, “the state may not deprive a person of his or her liberty interest without providing a fair procedure for the deprivation.” Id.

The HSC noted that inherent in this liberty interest and the need for a “fair procedure” is the right to effective assistance of counsel. In re RGB, 123 Hawaii 1, 17, 229 P.3d 1066, 1082 (2010). The HSC held that counsel is necessary to assist parents whose children have been placed in foster care—even if no termination proceedings were initiated. “[A]s soon as DHS files a petition asserting custody over a child, parents’ rights are ‘substantially affected.’ At that point, an attorney is essential to protect an indigent parent’s liberty interest in the care, custody, and control of his or her children.” Thus, the case-by-case approach was abandoned and “upon the filing date of this opinion [January 6, 2014], trial courts must appoint counsel  for indigent parents upon the granting of a petition to DHS for temporary foster care of their children.”

Editor’s Note. I represented Mother before the ICA and the HSC.

Wednesday, January 29, 2014

HSC Badly Divided and Unanimous at the Same Time

State v. McKnight (HSC December 31, 2013)
Background. Robert McKnight was charged with electronic enticement and promoting child abuse in the third degree. McKnight communicated with agent Vincente Domingo with the Attorney General’s office on a chatroom. Domingo pretended to be a teenaged girl living on Oahu. Over several months, McKnight communicated with Domingo via chatrooms, cellular telephones, email, and telephone. The chats were intimate in nature and included discussions of sexual acts. At one point, they discussed meeting in person. McKnight agreed to purchase a ticket for Domingo from Oahu to Maui and he would pick “her” up at the airport. On the meeting day, McKnight went to the Kahului Airport where he was arrested by the police and special agents.

He was taken to the Wailuku Police Station and advised of his Miranda rights. McKnight said he wanted to talk to a lawyer. The agents left the room and conferred with another agent and wondered if they could go back in there and ask for his address and a description of his residence. The agents needed to get a search warrant for the house. They convinced themselves that it was permissible and went back inside the room with McKnight. McKnight asked what was going to happen next and Domingo told him that they were going to “do a search warrant” of his house. McKnight then said he changed his mind about giving a statement. They recorded the interrogation and throughout it, McKnight asked if he could call his mother. Domingo said he couldn’t promise anything. He continually asked if he could call his mother. Again, Domingo did not promise anything. He made an incriminating statement.

The agents then prepared a search warrant for the house and presented the affidavit and warrant to District Court Judge Simone Polak. Judge Polak approved the warrant and wrote in the wrong month on the date of issuance to read: “This warrant may be served and the search made on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]” The warrant stated that the date of issuance was June 6, 2006. The police searched anyway, confiscated a computer, and later found evidence underlying the promoting child abuse charge.

McKnight moved to suppress his statement and the evidence obtained at his house. The circuit court granted the motion and the prosecution moved to sever the promoting child abuse charge and take that up on appeal while it proceeded with the electronic enticement charge. At trial, the circuit court instructed the jury that the offense constituted five elements and it did not instruct the jury that it had to find beyond a reasonable doubt that McKnight used a computer or other electronic device to travel to the agreed-upon meeting place. McKnight was found guilty of the electronic enticement count. McKnight appealed. Both appeals were consolidated. The ICA affirmed the conviction, but vacated the suppression order. McKnight sought certiorari.

A Badly-Divided Court. The HSC divided this case into three distinct issues. What makes this case different is that for each section there are divergent majorities and dissenters.

No Evidence of Computer Use Required for Every Element of Electronic Enticement. McKnight argued that the circuit court did not properly instruct the jury about the elements of electronic enticement. Here’s how the statute is written:

Any person who, using a computer or other electronic device:
(a) Intentionally or knowingly communicates [with a minor or a person pretending to be a minor] and
(b) With the intent to promote or facilitate the commission of a felony . . . [t]hat is an offense defined in section 846E-1 . . . [a]grees to meet with the minor or [purported minor] and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time; is guilty of electronic enticement[.]

HRS § 707-756. McKnight argued that the statute clearly and unambiguously requires proof that the person use a computer or other electronic device to “travel to the agreed upon meeting place at the agreed upon meeting time[.]” The HSC disagreed.

The Court’s “foremost obligation [in statutory interpretation] is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” State v. Kotis, 91 Hawaii 319, 327, 984 P.2d 78, 86 (1999). The plain language of the statute, however, “does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctionary review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.” Keliipuleole v. Wilson, 85 Hawaii 217, 221, 941 P.2d 300, 304 (1997).

According to the HSC, strictly interpreting the statute so that some form of computer usage is required to travel to the meeting place at the meeting time leads to an absurd result. The HSC went into the legislative history of the criminal statute and found committee reports detailing the kinds of factual scenarios that this statute was meant to criminalize. Those factual scenarios did not require computer usage to travel to the meeting place at the meeting time. Thus, the HSC held that even though the statute “appears to require that a defendant use a computer or other electronic device to travel . . ., a literal reading of this paragraph is absurd.” The HSC went even further and held that computer or electronic use is only required to acts of communication with the minor or purported minor. The other acts—agreement to meet and traveling to meet—do not require it. The HSC reasoned that if the legislature had intended to require a nexus of computer usage for the second element of electronic enticement, “it could have structured the second subsection more naturally[.]”

Chief Justice Recktenwald’s Concurrence and Dissent. The Chief Justice agreed in part, but also dissented here. He agreed that it is absurd to require a computer or other electronic device to travel to the meeting place. However, he disagreed that computer usage is not required for the second element—agreeing upon a meeting place. There is nothing absurd about requiring computer usage to set up a meeting place. After all, it is called electronic enticement. He also wrote that the majority’s reliance on legislative history is misplaced. “It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning.” State v. Richie, 88 Hawaii 19, 30, 960 P.2d 1227, 1238 (1998). For the Chief Justice, the circuit court erred in failing to instruct the jury that computer usage was required to set up the meeting place and time. That error was not harmless and a new trial was warranted. Judge Rom Trader joined.

Rejection of the Plain-Language Rule. This is certainly a new court when it comes to the plain language rule. For some time, especially during the later years under the Chief Justice Moon, the court had become more and more committed to a strict interpretation of statutes. If the language is plain and unambiguous, then so be it. That’s how it should be read. Now, it seems that this is not the case—at least not as much. Determining when the court will stick to the plain language or when it will depart and delve into legislative history to ascertain some alternative meaning remains anybody’s guess.

The Statement was Properly Suppressed. The HSC unanimously held that the statement was properly suppressed. When the accused invokes his or her right to counsel, all questioning in the custodial interrogation must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The accused can also waive his rights by re-initiating communication with the police. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). Even then, the questioning can continue only if the accused knowingly, intelligently, and voluntarily waives his rights. State v. Hoey, 77 Hawaii 17, 34-36, 881 P.2d 504, 521-23 (1994).

Here, the HSC held that McKnight clearly and unequivocally invoked his right to counsel in the interrogation room and thus, the agents “were prohibited from further questioning McKnight until an attorney had been provided or McKnight voluntarily reinitiated communication.” Domingo respected that right at first, but he later went back into the room to “obtain information he hoped to use in a warrant application.” No attempt was made to find an attorney. When McKnight asked what was going to happen next, Domingo said they’d search his house with a warrant (even though they didn’t have one). Based on the totality of these circumstances, McKnight never reinitiated contact and his subsequent waiver of his Miranda rights was not voluntarily given. Moreover, Domingo’s conduct and comment about the search “were reasonably likely to elicit an incriminating response.” The statement was obtained in violation of his constitutional rights.

The Execution of the Search Warrant was Valid Despite the “Scrivener’s Error.” The Hawaii Constitution protects persons from unreasonable searches, seizures, and invasions of privacy. Haw. Const. Art. I, Sect. 7. A written search warrant must “command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property to be specified.” HRPP Rule 41(c). Here, the warrant commanded officers to search McKnight’s home not less than 10 days from the issuance of the search warrant. The issuance date was wrongly written. The HSC held that this was nothing more than a scrivener’s error and did not render the search invalid. The HSC relied on cases from a variety of other jurisdictions in support of this holding. State v. Dalton, 887 P.2d 379 (Or. Ct. App. 1997); Heard v. State, 612 S.W.2d 312 (Ark. 1981); State v. Shupper, 207 S.E.2d 799, 800-01 (S.C. 1974); State v. E.J.F., 999 So.2d 224, 231-32 (La. Ct. App. 2008); People v. Deveaux, 561 N.E.2d 1259, 1263-64 (Ill. App. Ct. 1990); State v. Steffes, 887 P.2d 1196 (Mont. 1994).

The HSC also looked at the underlying purpose of the exclusionary rule. The exclusion of evidence promotes three purposes: (1) judicial integrity; (2) the protection of individual privacy; and (3) deterrence of illegal police misconduct. State v. Torres, 125 Hawaii 382, 394, 262 P.3d 1006, 1018 (2011). According to the HSC, the search of an otherwise valid warrant did not offend these purposes. Thus, the erroneous issuance date did not make a difference in searching the home.

Justice Acoba’s Dissent. Justice Acoba wrote that the invalid issuance date rendered the search invalid. For Justice Acoba, this case radically departs from well-established judicial precedent and introduces a “good faith” exception to the warrant requirement. Our constitution affords greater protections than the federal constitution’s Fourth Amendment. State v. Dixon, 83 Hawaii 13, 23, 924 P.2d 181, 191 (1996). Hawaii’s exclusionary rule, he wrote, should not distinguish between police misconduct and judicial error. The constitution is designed to protect individuals “against intrusions by the government.” State v. Kahoonei, 83 Hawaii 124, 129, 925 P.2d 294, 299 (1996). Justice Acoba wrote that this error was more than a mere scrivener’s error. It invites officers executing the warrant to proceed at their own peril when there are conflicting commands in the warrant itself. He also wrote that all three of the underlying purposes to Hawaii’s exclusionary rule were undermined. Judicial integrity is undermined for Justice Acoba. “An error by the hand of either a police officer or a judge is not excused to the detriment of privacy rights.” It shows that the government failed to abide by its own laws. He also believed that the misconduct by the police was the failure to read the warrant. Allowing the search “entirely exculpates the police officer or officers who received the warrant from the judge and proceeded to execute it, even though the discrepancy on the face of the warrant should have been obvious to the officers.” Justice Acoba would have upheld the suppression on these grounds. Justice McKenna joined.


Editor’s Note. I represented Mr. McKnight before the ICA and the HSC.

Tuesday, January 28, 2014

Narrowing the Prohibition Against Disjunctive Pleading

State v. Codiamat (HSC December 27, 2013)
Background. Marianne Codiamat was charged with a single count of harassment:

On or about the 6th day of January, 2011, in the City and County of Honolulu, State of Hawaii, MARIANNE L. CODIAMAT, with intent to harass, annoy, or alarm [Complainant], did strike, shove, kick, or otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact, thereby committing the offense of harassment in violation of [HRS § 711-1106(1)(a).].

Codiamat moved to dismiss the charge based on deficient pleading. She argued that the use of the disjunctive rendered the complaint deficient and too difficult for her to prepare for a defense. Over the prosecution’s objection, the district court granted the motion and dismissed the case without prejudice. The prosecution appealed and the ICA affirmed, and Chief Judge Nakamura concurred and wrote separately to state that the precedent should be reexamined and overturned. Inexplicably, Codiamat petitioned for certiorari.

The Constitution and the Charge. The Sixth Amendment to the United States Constitution and Article I, Section 14 of the Hawaii Constitution require the charge to be “worded in a manner such that the nature and cause of the accusation could be understood by a person of common understanding.” State v. Sprattling, 99 Hawaii 312, 318, 55 P.3d 276, 282 (2002). Historically, “[t]he rule against disjunctive allegations in Hawaii has been modified and relaxed in in cases of offenses which are constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents or which may produce one or more of several results.” Territory v. Tamashiro, 37 Haw. 552, 553 (Terr. 1947).

The rule changed after statehood. “Where a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive, but not in the disjunctive.” State v. Jendrusch, 58 Haw. 279, 283 n. 4, 567 P.2d 1242, 1245 n. 4 (1977). The rule was clarified to charge offenses in a “conjunctive/disjunctive” allegation; the infamous “and/or” pleading. State v. Batson, 73 Haw. 236, 250, 831 P.2d 924, 932 (1992).

A Closer Look at the Jendrusch Rule. The HSC closely examined the rule and noted that “complaints charging non-synonymous acts disjunctively may not provide adequate notice.” But even then, it may not be fatally flawed. The HSC read Jendrusch narrowly and noted that only when charging separate subsections of the harassment statute. These days, there are six different subsections and six different types of behavior that constitute harassment. Those are the “non-synonymous acts.”

But even among the subsections, there are different forms of conduct. For example, in subsection (b), a person commits harassment if that person “insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another[.]” HRS § 711-1106(b). There are alternative ways to violate this subsection.

Here, the HSC noted that Codiamat was charged with violating only subsection (a): “Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact[.]” The HSC reasoned that the differences between striking, shoving, kicking or otherwise touching a person in an offensive way and subjecting the person to offensive physical contact are “inconsequential because the actions are closely related, falling within the same category of behavior.” And since only one category is alleged, the Jendrusch rule is not violated.

Defending the Narrowly-Read Jendrusch Rule. The HSC went on to defend its reading of the old rule. As long as the charges are coming from the same statutory sections or subsections, they can be charged disjunctively. This alerts the defendant to be prepared for multiple theories presented by the prosecution. But when the charging instrument mixes the subsections in the disjunctive, it would run afoul with the Jendrusch rule and be constitutionally deficient.

Justice Acoba’s Dissent. Justice Acoba disagreed with the majority and would have held that the exclusive use of “or” rendered the complaint deficient. It didn’t matter to Justice Acoba that the acts of “touching” and “subjecting” were in the same subsection. They were different forms of conduct with very different meanings. He also took issue with the majority’s focus on the sections and subjections. For him, there is simply no rational basis to determine the way a charge should be written based on the mere “location in the statute where the conduct is described rather than on the conduct itself.” Why, he argued, would a person of common understanding have no problem noting the differences in conduct within a subsection, but have a problem once it is outside that subsection? Justice Pollak joined.

Prosecution Need only Disprove one of three Elements to Keep it a Class A Kidnapping

State v. Bailey (HSC December 24, 2013)
Background. Ezra Kualaau contacted Andrew Rodriguez to buy crack cocaine. Rodriguez and Bladesin-Isaiah Bailey went to Kualaau’s house in a white Chevy Impala. Kualaau had no shirt or shoes on and was wearing basketball shorts when he joined them at a park across the street from his house in Waiau on the island of Oahu. Rodriguez sat in the driver’s seat, Bailey in the front seat passenger’s seat, and Kualaau in the back. After a cop car drove by, the Bailey and Rodriguez looked at each other, Bailey went to his trunk and Kualaau started getting hit. He was struck in the head and lost consciousness. He was handcuffed and placed in the trunk and then they drove off. In the trunk, Kualaau accessed his cell phone and texted his mother that he was being kidnapped and he called 911. The car drove to a cul-de-sac and parked. They placed a plastic bag and cloth over Kualaau’s head. They walked him up a trail and told him that if he made noise, they’d shoot him. At the top of the trail, they started punching Kualaau several times in the head. Then they shoved him to the ground, ripped the bag off, and ran away. Once he heard the car door slam, Kualaau went down the trail for help. Officer Hamala Wong found Kualaau in the Moanalua Valley area with “abrasions” on his face and body. He had a swollen nose. A doctor later found that he had a broken nose.

The police found Bailey, Rodriguez, and the white impala on Salt Lake Boulevard. Bailey and Rodrigeuz were indicted with one count of kidnapping and one count of assault in the second degree. Witnesses at trial placed a white car and testified that they saw a man being put in the trunk in the Waiau area. At the close of the prosecution’s case, Bailey moved for an acquittal based on the lack of venue. Bailey argued that no witness testified that “this occurred in the City and County of Honolulu.” The trial court denied the motion because there was testimony that some of this took place in Waiau and were definitely happening on the island of Oahu.

Bailey did not testify, but Rodriguez did. He admitted to handcuffing Kualaau, taking him to Moanalua, and putting him in the trunk. He denied putting a bag over his head and punching him. At the closing argument, both defendants argued that there was no proof that the broken nose resulted from the kidnapping. The jury found both guilty as charged for the kidnapping and assault in the third degree as a lesser-included offense. The jury also found that the prosecution proved beyond a reasonable doubt that Bailey did not release Kualaau voluntarily, that he did not release him “alive and not suffering from serious or substantial bodily injury” and that he did not release him in a safe place. The defendants moved for a judgment of acquittal based on lack of venue and the lack of evidence for the class-A kidnapping. The motions were denied and Bailey was sentenced to eight years prison as a young adult offender. He appealed and the ICA affirmed.

Venue Required for a Conviction. “[N]o person may be convicted of an offense unless” facts establishing venue are proven beyond a reasonable doubt. HRS § 701-114(1)(d). Furthermore, the prosecution must take place “in the circuit in which the offense or any part of it was committed.” HRPP Rule 18. The failure to establish venue may result in an acquittal. State v. Kwak, 80 Hawaii 297, 305, 909 P.2d 1112, 1120 (1995); State v. Miyashiro, 3 Haw. App. 229, 232-33, 647 P.2d 302, 304-05 (1982).

A Lesson in Geography. The State of Hawaii is “divided into four judicial circuits.” HRS § 603-1. The first judicial circuit “is the island of Oahu.” Id. The “City and County of Honolulu encompasses the island of Oahu.” Rev. Charter of the City and County of Honolulu (RCCH) § 1-102. Finally, the “first judicial circuit covers the Island of Oahu [and] all other islands belonging to the state (other than Maui, Molokai, Lanai, Kahoolawe, Molokini, Hawaii, Kauai, and Niihau)[.]” State v. Correa, 5 Haw. App. 644, 650, 706 P.2d 1321, 1325 (1985). Proof that an event arose “on the Island of Oahu is proof that it occurred within the first judicial circuit.” Id. The entire event does not have to take place on Oahu either. “Any part” of the offense is enough establish venue. HRPP Rule 18. Here, the HSC held that there was ample evidence establishing that the offense took place on Oahu and, therefore, within the first judicial circuit. The police and witnesses testified about streets and locations in Waiau, Moanalua, and Pearl City. They used the phrase “island of Oahu” rather than “City and County of Honolulu.” That was enough to establish proper venue.

Impress your Friends at Cocktail Parties. The State is divided into four judicial circuits. Which one is the fourth circuit? For a long time, I could never figure out how Kauai managed to become the Fifth Circuit. Turns out that the fourth circuit used to be Kona and West Hawaii. It makes sense. If you move in a roughly clockwise direction starting with Oahu, you see Oahu as the first, Maui County as the second, Hilo as third, Kona fourth, and Kauai/Niihau as fifth. Then the Big Island became all of the Third Circuit, but Kauai never changed its name. Hence the oddly named Fifth Circuit out of the four judicial circuits. Yes, it’s trivial, but now you know—and knowing is half the battle.

The Quirky thing about Kidnapping. Kidnapping is a class A felony unless and until the prosecution disproves “that the defendant voluntarily released the victim, alive and not suffering from serious or substantial bodily harm, in a safe place prior to trial.” HRS § 707-720(3). If it cannot disprove this, it reduces the offense to a class B. But what exactly does the prosecution have to disprove? According to the HSC, the prosecution needs to only disprove one of the elements in this defense. The HSC turned to the way it interpreted the parental discipline statute in State v. Kikuta, 125 Hawaii 78, 253 P.3d 639 (2011). “[B]ecause the requirements [of the parental discipline defense] are set out in the conjunctive, rather than the disjunctive, a defendant need only fail to fulfill any one element in order to fail to sustain the defense.” Id. at 87, 253 P.3d at 648. Similarly, the HSC held that the prosecution need only disprove one of the elements in order to overcome the non-affirmative defense in the kidnapping statute.


Here, the defense has three elements: (1) the defendant must voluntarily release the victim; (2) the victim must be alive and not suffer from serious or substantial bodily injury; and (3) the victim must be released in a safe place. The jury’s interrogatories showed that the prosecution proved beyond a reasonable doubt that Bailey did not release the victim voluntarily and that the victim was not in a “safe place.” The reduction to a class B was not authorized by the jury’s findings.

Monday, January 27, 2014

Merger was the Case

State v. Santiago (HSC December 20, 2013)
Background. Anthony Santiago was charged with both robbery in the second degree and assault in the first degree. Santiago was driving his truck through Waikiki and Kaulana Akau was in the passenger’s seat. Santiago picked up Brad Easterling—the complainant—and his friend, Dustin Hernandez and they sat in the bed of the truck. At trial, there are very different versions of what happened. Easterling said that during the ride, he gave Santiago some marijuana and when they got to their destination, he and his friend got out of the truck and shook hands with Akau and Santiago. When Easterling shook hands with Santiago, Santiago grabbed hold of his hand, Easterling dropped his skateboard, and someone took his backpack. He heard someone say “take off” and the truck started moving. Easterling was dragged for a distance and had serious abrasions and bruises on his left arm, shoulder, hand, knee, and hip.

Akau said he never saw the exchange of marijuana during the ride and could not recall shaking Easterling’s hand. He said he saw the marijuana exchange after the ride. He said that he saw Santiago grab the bag and accelerate. He denied saying “take off.”

Santiago’s version went like this: there was no marijuana exchange during the ride, but afterwards, he got a small amount after Easterling got out of the truck. They shook hands and he never pulled him into the truck. Easterling was standing outside the truck on the driver’s side when he handed him a bag with marijuana. Santiago passed it over to Akau to examine it. Then Akau handed it back Easterling. They started discussing the quality and quantity of the marijuana when Easterling received a text message from his girlfriend. As he responded to the text, Easterling reached into the truck for what he thought was the marijuana. Easterling and Akau were struggling and Santiago was being hit. He never saw a backpack. Once Santiago separated Easterling and Akau, he took off in a panic. After driving some distance, he stopped at an intersection and Akau lunged over and “pulled fingers off the door.”

Easterling’s treating physician testified that Easterling suffered permanent disfigurement to his body as a result of being dragged along the roadway. The doctor concluded that this was a “serious bodily injury.” Akau was also charged as an accomplice to the robbery. The trials were consolidated.

The jury was instructed about the elements of both offenses for Santiago. The court also provided a special interrogatory: (1) did Santiago commit the both offenses as a “continuing and uninterrupted course of conduct”? and (2) did were the offenses committed with separate and distinct intents, rather than acting with one intention, one general impulse, and one plan to commit both offenses? No specific unanimity instruction was given. At closing, the prosecutor argued that Santiago “robbed” Easterling of his backpack and committed assault. The jury found Santiago guilty as charged and answered yes to both questions in the interrogatory. The jury also found Akau guilty as an accomplice. The court placed Akau on probation and sentenced Santiago to prison for ten years. The ICA affirmed.

No Arceo, No Problem! The HSC held that there was no need for the unanimity instruction. “When it appears . . . that a conviction may occur as a result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice” and a more specific instruction is needed to ensure that “the jury understands its duty to unanimous[ly] agree to a particular set of facts.” State v. Arceo, 84 Hawaii 1, 32, 928 P.2d 843, 874 (1996). The instruction is unnecessary when the prosecution elects as to which specific act it is relying upon to establish the “conduct” element. Id. at 33, 928 P.2d at 875. This instruction is also not required when (1) the offense is not defined in a way to preclude it from being a continuous offense and (2) the prosecution alleges, tries, and argues that the defendant engaged in a continuous course of conduct. State v. Apao, 95 Hawaii 440, 447, 24 P.3d 32, 39 (2001).

The HSC held that in this case the prosecution did not adduce evidence of multiple acts to support the counts of robbery and assault. According to the HSC, it was clear that the act of causing injury came from dragging Easterling down the road and not the elbowing, grabbing, or hitting. Although the latter may have been injuries, both robbery and assault in the first degree required proof of a “serious injury” (i.e., a “substantial risk of death” or “serious, permanent disfigurement”). There can be no mistake that the dragging and road rash were the intended evidence, not the grabbing and elbowing.

When Two Become One. The HSC, however, did find trouble in the conviction and sentence. When the same conduct can establish “an element of more than one offense, the defendant may be prosecuted for each offense . . . . The defendant may not, however, be convicted of more than one offense if [i]inconsistent findings of fact are required to establish the commission of the offenses[.]” HRS § 701-109(c).

Santiago was found guilty of robbery in the second degree and assault in the first degree. Robbery required proof that Santiago “recklessly inflicted serious bodily injury” upon Easterling in the course of a theft. HRS § 708-841. He was also found guilty of assault in the first degree—which required proof that he knowingly or intentionally caused serious bodily injury. HRS § 707-710. So far so good. The only legitimately serious bodily injury was the road rash.

But in answering in the affirmative to the question as to whether there were “separate and distinct intents, rather than acting with one intention, one general impulse, and one plan to commit both offenses,” the jury did not find that the two offenses merged into a single conviction. This, according to the HSC, revealed the inconsistent findings of fact because of the two divergent states of mind in either offense. One cannot recklessly cause serious bodily injury while committing a theft and at the same time knowingly or intentionally causing the same serious bodily injury for the assault charge. These are “mutually exclusive states of mind.” Briones v. State, 71 Haw. 442, 457, 848 P.2d 966, 974 (1993). Thus, one of the convictions must be dropped.


So what do we do now? Which one must go to the wayside? When the defendant has been wrongly convicted of two offenses, the appellate court may consider principles of equity and judicial economy in fashioning a remedy. See State v. Jumila, 87 Hawaii 1, 950 P.2d 1201 (1998). Generally, when one must go, the remedy is to reverse the lesser offense to avoid “manifest unfair[ness] to the prosecution and to the public[.]” Id. When the offenses are of an “equal grade,” like here, the court is free to examine which count should be reversed. See State v. Luiafi, 1 Haw. App. 625, 644, 623 P.2d 1271, 1283 (1983). Here, the HSC examined the record and noted that the robbery charge was the primary focus of the prosecution’s closing argument. The prosecutor only mentioned the assault “in passing.” Akau’s lawyer also tied the injury to the robbery and not the assault and upholding the verdict for robbery would be consistent with the verdict against Akau. The remedy was to reverse the conviction for assault in the first degree.

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.

Wednesday, January 15, 2014

Hussein Loses Some of its Umph?

State v. Kong (HSC December 10, 2013)
Background. After being charged with various drug offenses, Stanley Kong petitioned and was admitted into the Maui Drug Court Program. At the hearing on the petition, the circuit court explained that if he violated the terms and conditions of the program, he could be terminated fro the program. The circuit court found that Kong waived his rights “as indicated in the petition for admission” and let him in. Kong participated in the program for many months, but at a status hearing, Kong told the court that he had relapsed and “used drugs.” The circuit court gave him another chance and he remained in the program. At the next hearing, Kong did not show up so the court issued a bench warrant. He got picked up and appeared in custody before the court.

At that point, Kong told the court he wanted to “self-terminate” himself and requested to have bail set. The court told him that he had a right to a termination hearing with a lawyer “to determine if termination is appropriate.” The court also told him that if terminated, there would be a “stipulated facts” trial in which the facts that were alleged in the underlying charging instruments were stipulated as proven and he would almost certainly be found guilty as charged. Kong said he understood, but wanted to self-terminate anyway. His lawyer, however, raised the possibility of a conflict of interest and argued that her office may have to withdraw from representation. The hearing was continued.

At the next hearing, Kong again said he wanted to self-terminate. The court found that he terminated himself from the program, conducted a stipulated facts trial, and found Kong guilty as charged. At sentencing, Kong told the court that he did “not want to stipulate to the contents of [the presentence investigation] report” but did not specify. The court said that was “fine” and imposed consecutive terms of imprisonment.

Here was the court’s rationale for the consecutive terms:

Taking into consideration all of the factors set forth in Hawaii Revised Statutes Section 707-606, including the extensive record of the defendant, which includes six burglary convictions, which really represents—I’m sorry. Yeah, six burglary convictions, ten felonies, which represents a lot of harm to the community.

The Court is going to impose the following sentence in this matter. The defendant will be committed to the care and custody of the Director of the Department of Public Safety for a period of ten years on Count 1, five years on Count 2.
. . . .
In view of his extensive criminality, the Court is going to make these counts run consecutively for a total of fifteen years[.]

Kong appealed, the ICA affirmed, and Kong petitioned for certiorari. The HSC accepted certiorari.

Hussein is not Offended. Not long ago, the HSC held that the sentencing courts “must state on the record at the time of sentencing the reasons for imposing a consecutive sentence.” State v. Hussein, 122 Hawaii 495, 503, 229 P.3d 313, 328 (2010). This “express statement, which evinces not merely consideration of the factors, but recites the specific circumstances that led the court to impose sentences consecutively in a particular case, provides a meaningful rationale to the defendant, the victim, and the public.” Id. at 509-10, 229 P.3d at 327-28. It also provides “the conclusions drawn by the court from the consideration of all the facts that pertain to the statutory factors.” Id.

Here, the HSC held that the circuit court’s explanation—extensive criminality—met these factors of identifying the facts considered by the court and confirming the defendant, victim, public, and appellate court that the decision was deliberate, rational and fair. That was good enough for the HSC.

The HSC also addressed the argument that the ICA’s analysis was a “post hoc justification” for the circuit court’s rationale. The HSC did not necessarily agree with Kong’s argument that the ICA was speculating. Instead, it noted that the ICA was “attempting to link the circuit court’s express reasoning to the examples given in Hussein.” And even if it was error by the ICA to speculate, the HSC held that it did not warrant vacating Kong’s conviction.

The PSI Report May have been Wrong—But it’s All Good. The HSC rejected Kong’s argument that basing a sentence on a presentence investigation report that wrongly identifies prior convictions that had been vacated and dismissed was error. The HSC relied on State v. Sinagoga, 81 Hawaii 421, 918 P.2d 228 (App. 1996). There, ICA set up an analytical framework for challenging the prior convictions in a PSI report. The first step starts with a challenge by the defendant. Id. at 447, 918 P.2d at 254. According to the HSC, this framework applied to Kong and because Kong never challenged the priors before the circuit court, there was no error in the circuit court relying on that report.

Kong’s “Self-Termination” was a Valid Waiver of his Right to a Termination Hearing. Finally, the HSC held that Kong knowingly and intelligently waived his right to a termination hearing from the Maui Drug Court Program. Waiver must be the “knowing, intelligent, and voluntary relinquishment of a known right.” State v. Freidman, 93 Hawaii 63, 68 996 P.2d 268, 273 (2000). Here, the circuit court conducted a colloquy with Kong albeit that it was interrupted by a week. This was enough for the HSC even though it recognized that “extensive advisements regarding the right to a termination hearing did not occur” at the final self-termination hearing.

Justice Acoba’s Dissent. Justice Acoba believed that the majority got it wrong on all three issues. Justice Acoba wrote that the circuit court’s rationale in imposing an additional five years of prison does not past muster under Hussein. Justice Acoba, who wrote for the Court in Hussein, believed that that case marked “a sea change in this court’s jurisprudence.” Sentencing courts had to provide express reasons on the record for the imposition of consecutive prison sentences. This was because, inter alia, “the absence, refusal, of reasons is a hallmark of injustice.” Hussein, 122 Hawaii at 505, 229 P.3d at 323. That, according to Justice Acoba, was the kind of injustice that took place here. The circuit court’s statement provided no real grounds or reasons for the consecutive sentence. This is especially egregious since no one even asked for the consecutive terms.

Justice Acoba also took issue with the errors in the PSI report. The Sinagoga framework is limited to challenges to prior convictions that were uncounseled or not against the defendant. State v. Veikoso, 102 Hawaii 219, 226 n. 8, 74 P.3d 575, 582 n. 8 (2003). Justice Acoba noted that Kong challenged the very existence of prior convictions that showed up on his PSI. This places the challenge out of the Sinagoga analysis and the prosecution should not have benefitted from a presumption of validity in PSI reports. The use of a faulty PSI, according to Justice Acoba, violated Kong’s due process rights.

In the end, Justice Acoba would have vacated the judgment and remanded for sentencing again. “The vacation of a sentence based on prior void convictions would appear to be the obvious effectuation  of [the plain error] doctrine. Under the law, this is the right thing to do.” Justice McKenna joined.