Friday, February 21, 2014

County's Ordinance for Low Priority Enforcement of Pot Preempted by State Law

Ruggles v. Yayong (ICA February 7, 2014)
Background. The voters on the Big Island passed an initiative to make the enforcement of marijuana laws the lowest enforcement priority in the county. The law required law enforcement activities related to drug offenses for adults to be higher than cannabis possession and cultivation of a single case involving twenty-four or fewer plants when intended for adult personal use. The law also prohibited the chief of police and the police commissioner from working with federal law enforcement agencies and prohibited the County Council from authorizing the acceptance of funds to investigate, cite, arrest, prosecute the lowest law enforcement priority policy. A group of concerned citizens on the Big Island brought a lawsuit against county officials alleging that the officials failed or refused to enforce this new law. The County responded by dismissing the case. The circuit court dismissed it on the grounds that the Hawaii Penal Code superseded the new law.

County v. State Powers (State Wins most of the time). The counties derive their power to enact and enforce its ordinances from the general laws of the State. Haw. Const. Art. VIII, Sec. 1. The legislature, however, has the power to enact laws of “statewide concern.” Haw. Const. Art. VIII, Sec. 6. The State legislature can “enact all laws of general application throughout the State on matters of concern and interest and laws relating to the fiscal powers of the counties, and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.” HRS § 50-15. If they do conflict, the county ordinance is invalid. Stallard v. Consol. Maui, Inc., 103 Hawaii 468, 473, 83 P.3d 731 ,736 (2004).

On the other end of the spectrum, counties have the power to protect “health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject matter not inconsistent with or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State.” HRS § 46-1.5(13). In other words, the ordinance is preempted by State law if “(1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.” Richardson v. City and County of Honolulu, 76 Hawaii 46, 62, 868 P.2d 1193, 1209 (1994).

Why does the County Represent the State in Prosecutions? The ICA has duly answered this age-old question. The power to detect, investigate, and prosecute criminal offenses lies within the purview of the chief law enforcement officer of the state, the Attorney General. HRS § 28-2.5(a). “The public prosecutor, however, has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction. What is thus reserved to the attorney general is the residual authority to act.” Amemiya v. Sapienza, 63 Haw. 424, 427, 629 P.2d 1126, 1129 (1981).

Hawaii Penal Code and Hawaii’s Uniform Controlled Substances Act Preempt the County Ordinance. The ICA held that the Hawaii Penal Code that regulates and (outlaws) the possession of just about any kind of marijuana and the Uniform Controlled Substances preempt the county ordinance. “[H]ow violations of state penal laws are investigated by authorized state and county officials is inherently . . . a matter of statewide concern.” Marsland v. First Hawaiian Bank, 70 Haw. 126, 133, 764 P.2d 1228, 1232 (1988). Here, that was enough for the ICA to agree with the circuit court’s dismissal.

. . . Nice Try, Big Islanders. The pro se parties that brought this lawsuit tried to get the County to enforce its own initiative. The County has refused on the grounds that State laws preempt it. That may be so. Looks like the only way to get this through is through the Legislature, not the County Council.


So What Else is Preempted? This opinion—a refresher course in the delegation of power from the State to the counties—raises interesting questions. Just about every county prohibits the use of a cell phone while in the car. But now it seems like the State has passed a law too. Are the counties preempted? It would seem so.

Landing on Kahoolawe is not a Strict Liability Offense

State v. Armitage et al. (HSC January 28, 2014)
Background. Nelson Armitage, Russell Kahookele, and Henry Noa were charged by complaint of violating Haw. Admin. Regulation (HAR) § 13-261-10, the offense of entering into the Kahoolawe Island Reserve. The complaints read as follows:

That on or about the 31st day of July, 2006 . . . [the defendants] did enter or attempt to enter into, or remain within the Kahoolawe Island Reserve without being specifically authorized to do so by the commission or its authorized representative, thereby committing the offense of Entrance Into the Reserve, in violation of [HAR § 13-261-10].

The Defendants pleaded not guilty and their cases were consolidated. In their motion to dismiss, they challenged the constitutionality of the regulations and the prosecution itself. The Defendants argued, inter alia, that they had a constitutional right to go onto Kahoolawe in furtherance of traditional Native Hawaiian practices, founding an indigenous nation, and to practice their religion. They also argued that they constituted a recognized sovereign entity as an alternative to the State of Hawaii itself. The motion was denied. The parties then entered into a stipulated facts trial and the district court found the Defendants guilty as charged, but stayed sentence pending this appeal. The ICA affirmed and the Defendants petitioned to the HSC.

At the Outset, the Complaints are Deficient for Failing to Plead Mens Rea. The HSC’s actual holding in this case has nothing to do with Native Hawaiian rights, recognition of the Kingdom of Hawaii, or any other heady matters. The HSC instead focused on whether the prosecution adequately pleaded the offense.

“No person or vessel shall enter or attempt to enter into or remain within the [Kahoolawe Island] reserve unless such person or vessel” is authorized to do so or has met certain enumerated exceptions. HAR § 13-261-10. The regulation does not expressly include a state of mind. Generally, when an offense does not include it, the prosecution still has to prove that the person acted “intentionally, knowingly, or recklessly” unless the absolute liability “plainly appears” or a violation. HRS § 702-204. The HSC held that this offense is not a violation—the offender faces the possibility of up to 30 days jail and a $1,000 fine. HRS § 6K-8. It also held that it does not “plainly appear” from the legislative history of the reg or the reg itself that this should be a strict liability offense. Therefore, HAR § 13-261-10 is not a strict liability offense and the prosecution must prove that the Defendants committed the act knowingly, intelligently, or recklessly.

“A charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense and thus the charge is dismissed without prejudice because it violates due process.” State v. Appollonio, 130 Hawaii 353, 359, 311 P.3d 676, 682 (2013). The complaints here did not allege a state of mind and so it must be dismissed.

The Long Appellate Process Does not Toll the Statute of Limitations. This offense is a petty misdemeanor. HRS § 6K-8. The statute of limitations for a petty misdemeanor is normally one year. HRS § 701-108(2)(f). The HSC rejected the Defendants’ argument that once dismissed, the prosecution cannot simply re-file because it is time barred. The period of limitation does not run and is tolled “[d]uring any time when a prosecution against the accused for the same conduct is pending in this State[.]” HRS § 701-108(6). According to the HSC, this time includes the time pending on appeal in the State. Specifically, the HSC held that the statute of limitations was tolled from the start of the filing of the complaints and will not end until the HSC remands it back down to the district court and enters its order dismissing without prejudice.

Once that issue was settled and given the likelihood of a retrial, the HSC addressed the other issues raised by the Defendants.

The Right to Establish an Alternative, Sovereign, Indigenous Government. HSC rejects right to nation-building. Although the an indigenous Kingdom of Hawaii “exists as a state in accordance with recognized attributes of a state’s sovereign state” allowing a defendant to challenge jurisdiction, State v. Lorenzo, 77 Hawaii 219, 221, 883 P.2d 641, 644 (App. 1994), the HSC now held that there is no fundamental right to build a sovereign Hawaiian nation. Rather, Lorenzo stands for the proposition that once a federally-recognized sovereign Hawaiian nation has been established, courts may face jurisdictional challenges. Until then, there is no such right.

Landing and Occupying Kahoolawe is not Symbolic Speech Either. The HSC also rejected the claim that going onto Kahoolawe, though politically motivated, was not symbolic speech protected by the First Amendment and the Hawaii Constitution. State v. Jim, 105 Hawaii 319, 97 P.3d 395 (App. 2004) (physical presence of protesters to prevent workers from investigating a water line not protected by freedom of expression); Kleinjans v. Lombardi, 52 Haw. 427, 433, 478 P.2d 320, 324 (1970) (occupying university office “did not take the form of a public rally but instead involved the occupation of the private office of a university official. There could not be any good faith claim that this area was open to the public for the purpose of expressing dissident ideas.”). The HSC specifically held that the occupation could not be considered “speech.”

The Other Issues. The HSC rejected all of the claims raised by the Defendants including infringements on the free exercise of religion and traditional and customary rights of Native Hawaiians.

The Chief Justice’s Concurrence and Dissent. The Chief Justice would have affirmed the conviction because despite the deficient pleading, no one objected on those grounds and no prejudice was demonstrated. Justice Nakayama joined.

Thursday, February 6, 2014

HSC Gets Serious About Waiving Trial Rights

State v. Baker (HSC January 27, 2014)
Background. Kaolino Richard Baker was charged with a single count of abuse of family or household member. HRS § 709-909. The incident involved his ex-girlfriend. At a pretrial hearing, Baker’s lawyer said that he signed a “waiver of jury trial” form. The form stated that Baker had a series of numbered paragraphs all of which were initialed except for the one stating that he was “entering this waiver of my own free will after careful consideration. No promises or threats have been made to me to induce me to waive my right to a jury trial.” He did, however, sign the form and it was certified by counsel that counsel went over all of the contents of the form and that counsel believed that it was signed voluntarily and intelligently. The family court conducted a colloquy, but failed to ask Baker about whether his decision to waive the right to a jury trial was voluntary. After the colloquy, Baker signed the form a second time certifying that the judge questioned him in open court “to make sure that I knew what I was doing and understood this form before I signed it.”

After a bench trial, the family court found Baker guilty and sentenced him to probation for two years, including 30 days jail. Baker appealed. The ICA affirmed.

Trial By Jury is Kind of a Big Deal. “Trial by jury is considered fundamental to our system of criminal justice.” State v. Pokini, 55 Haw. 640, 656, 526 P.2d 94, 108 (1974). Here in Hawaii, trial by jury generally applies when the potential penalty for the charged offense is six months or more. HRS § 806-60. Baker had a right to a jury trial because the potential penalty for abuse of a family or household member could lead to a year in jail.

In these cases, the trial court at arraignment must inform the defendant about the right to a jury trial and inform the defendant that he or she “may elect to be tried without a jury in the district court.” HRPP Rule 5(b)(1). This right—like almost all others—can be waived, but it must be “in writing or orally in open court.” State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). The waiver is the “knowing, intelligent, and voluntary relinquishment of a known right.” State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000). Waiver is reviewed on a totality of the circumstances and must be approved by the trial court. HRPP Rule 23(a).

Trial Court has the Duty to Ensure a Proper Waiver of Rights. Approving of the waiver of a right is a “serious and weighty responsibility.” United States v. Saadya, 750 F.2d 1419, 1421 (9th Cir. 1985). In Hawaii, trial courts must engage in an on-the-record colloquy with the defendant to carry out this serious and weighty duty. State v. Gomez-Lobato, 130 Hawaii 465,__, 312 P.3d 897, 901 (2013). Here, there was nothing in the record indicating that Baker voluntarily waived his jury trial right. Both the colloquy and the waiver form failed to show that Baker understood that his waiver has to be of his own free will or that no one put pressure on him or that it was simply voluntarily given. This was enough to vacate the judgment and remand for a new trial.

Justice Acoba’s Concurrence. Justice Acoba agreed that the failure to ensure that the waiver of this right was voluntarily given requires a new trial. He wrote separately to note that the colloquy and the form should also include informing Baker that (1) twelve members from the community compose a jury; (2) the defendant may take part in the jury selection; (3) a jury verdict must be unanimous; and (4) the court alone decides “guilt or innocence” if the defendant waives a jury trial. See Gomez-Lobato, 130 Hawaii 465, __, 312P.3d 897, 905 (2013) (Acoba, J., concurring).

Wednesday, February 5, 2014

Right to Counsel can be Revived After Verdict

State v. Pitts (HSC January 22, 2014)
Background. Joseph Pitts was charged with attempted murder for allegedly stabbing his close friend. After going through three court-appointed attorneys, trial began. Just after opening statements, Pitts told the trial court that he wanted to represent himself. His lawyer said that Pitts believed “he knows the case better than [his lawyer] and that the truth will set him free.” The trial court ordered Pitts to consider it over the weekend. When trial resumed on Monday, Pitts said that he will put his stubbornness aside and keep his lawyer for trial. In the middle of the prosecution’s case, Pitts said he wanted to fire his lawyer. The circuit court gave him a day to think about his decision and then had a colloquy about the waiver of his counsel. The trial court then kept his lawyer as a standby counsel and Pitts represented himself. Trial resumed and this time Pitts said he wanted his lawyer back. His lawyer said that there may be a conflict at this point since he shared with the prosecution. The trial court denied the request on the grounds that there may be an ethical problem and “the bottom line is . . . [Pitts] waived [his] right to counsel.” Pitts was found guilty.

A week later, his lawyer withdrew as standby counsel and asked for a substitute counsel. His lawyer also moved for a mistrial. The lawyer explained that Pitts has asked for his help in requesting a new trial, sentencing, and an appeal. The prosecution objected to the motion. The trial court denied the motion and said from the bench that his lawyer may not have standing to file the motion requesting the appointment of counsel in the first place. Pitts filed five post-verdict motions on his own seeking to set aside the verdict, a new trial, appointment of counsel for sentencing and appeal, psychiatric evaluation, and a continuance. Pitts repeatedly asked for a lawyer at the hearing. All motions were denied except for the appointment of appellate counsel. He was sentenced. Pitts appealed and the ICA affirmed.

Right to Counsel Extends After the Verdict. “The Sixth and Fourteenth Amendments to the United States Constitution guarantee to a person to be represented by counsel at every critical stage of the prosecution.” Reponte v. State, 57 Haw. 354, 361, 556 P.2d 577, 582 (1976). Art. I, Sec. 14 of the Hawaii Constitution also guarantees the accused the right to counsel. A stage is “critical” when the “potential substantial prejudice to defendant’s rights inheres.” State v. Masaniai, 63 Haw. 354, 359, 628 P.2d 1018, 1022 (1981). There is also a right to represent one’s self when the defendant “voluntarily and intelligently elects to do so. There can be some tension in these two principles.” Marshall v. Rodgers, __ U.S. __, 133 S.Ct. 1446, 1449 (2013).

The HSC held that the post-trial motion stage is a critical stage of the prosecution in which the right to counsel attaches despite a defendant’s mid-trial waiver of his or her right to counsel at trial. Here, the trial court insisted that Pitts represent himself despite his repeated requests for a lawyer. The HSC noted that the right to represent one’s self is not irreversible and can be terminated. In sum, the HSC held that “in the absence of extraordinary circumstances, a defendant who has exercised the right to self-representation at trial, but expressly requests counsel for post-verdict motions or for sentencing has a right to counsel.” And Pitts’ firing of four court-appointed lawyers is not an extraordinary circumstance (as many court-appointed lawyers can attest). The HSC vacated the judgment and remanded for re-sentencing and filing a motion for new trial.

Scientific Certainty is not Required Before Admitting Expert Opinion in Murder Trial

State v. DeLeon (HSC January 15, 2014)
Background. Phillip DeLeon was indicted with inter alia the murder of Shawn Powell and the attempted murder of Powell’s friend, Justin Gamboa after a fight in a nightclub. Before trial, the prosecution filed a motion in limine seeking to exclude evidence that Powell had cocaine in his system at the time of the shooting. DeLeon opposed the motion on the grounds that it was relevant and went to the heart of his self-defense claim. DeLeon also noted that he had retained Dr. Clifford G. Wong a toxicologist at Clinical Laboratories of Hawaii. DeLeon proffered that Dr. Wong would testify about whether Powell was under the influence of the cocaine and needed evidence of its existence in his system introduced at trial. The trial court deferred the matter and would wait for an HRE Rule 104 hearing at trial. The trial court noted that it was concerned about “[q]uestionable relevancy and materiality will just create undue confusion.”

Right before opening statements, the trial court permitted DeLeon to tell the jury that Powell might have been “high on something without making any specifications.” The substance and its amount would be determined after the 104 hearing. Prosecution witnesses testified that Gamboa and Powell went to Bar Seven—a nightclub next to Ala Moana Center—during the wee hours of the morning in June in their Lincoln Navigator. Powell was drinking, but not drunk. He started talking to DeLeon. The two got into a fight. When Powell’s friends intervened, DeLeon started yelling. Someone slapped his head and DeLeon walked away.

Then Powell and his friends went to Seoul Karaoke at around 3:45 a.m. They were told that they were closing so they walked back to the Navigator and someone started to yell at them. It was DeLeon. Friends testified that Powell was calm and DeLeon was calm too. Powell was about an arm’s length away when DeLeon grabbed his gun and started shooting. He shot into the ground three times and then into Powell’s chest. He started shooting at Powell’s friends and toward the Navigator. Gamboa was also shot, and he survived.

One of the workers at the karaoke bar, Daekum Kim, testified that near closing a group of drunk men came in and they left after they were told that the bar was closing up. Kim heard folks yelling outside and bad words then he heard a single shot and a few seconds later he heard more shots. Kim called the police and did not go outside.

Liana Cuarisma testified that she was DeLeon’s girlfriend. She testified that at around 3:50 a.m., she received a call from DeLeon saying that he “just got fucking mobbed” at Bar Seven. He sounded upset and was breathing heavily. The next day, DeLeon told her that he had to go to Washington to see his mother. That night he dropped him off at the airport.

A medical examiner testified that Powell’s wounds were consistent with a gun shot fired away from his body. In other words, the barrel was not placed against his body, but no one could conclude how far away the gun was when it was fired. The State rested after that.

The 104 Hearing and the Defense. The prosecution again moved to exclude Dr. Wong’s testimony about cocaine in Powell’s system. Specifically, it objected to a letter in which Dr. Wong wrote that the cocaine in Powell showed that he was under the influence of “two drugs at the time of the shooting, and accordingly, made a fatal misjudgment in his attempt to accost the defendant, [] Deleon, even after warning shots were fired.” Dr. Wong testified at the hearing and explained his findings—particularly the effects of cocaine, the amount found in Powell’s system, and retrograde extrapolation for alcohol and coke. In the end, he concluded that the ingestion of cocaine “had an impact on Powell’s behavior.” The trial court permitted Dr. Wong to testify about the effects of alcohol, but not cocaine.

One of DeLeon’s friends, Chang, saw DeLeon was drinking alone at Bar Seven and ended up talking with Powell. They looked like they were friendly to each other. Chang testified that one of Powell’s friends say that he wanted to “crack” DeLeon. Chang said he wasn’t doing anything wrong and that he should leave him alone. He turned away and heard a slap. DeLeon started yelling and Chang intervened. DeLeon then left the nightclub. About half an hour later, Chang went to the same karaoke bar and saw Powell and his crew, but he left before the shooting.

Then Dr. Wong testified as an expert witness. He testified that Powell had a blood alcohol level of 0.171, which he opined is a “high degree of alcohol intoxication.”

The jury was instructed about self-defense with the standard jury instructions. There was no objection. DeLeon was convicted of murder in the second degree and using a firearm while committing a felony and sentenced to twenty years prison. He appealed to the ICA, which vacated on grounds not raised before the HSC. The murder conviction was affirmed. DeLeon petitioned to the HSC.

The Circuit Court Cannot Exclude Expert Testimony for Failing to be Within a Degree of Scientific “Certainty.” The HSC rejected DeLeon’s claim that his lawyer was ineffective in failing to present to the jury testimony that Powell was under the influence of cocaine. Instead, it held that the circuit court plainly erred in excluding the testimony.

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise.” HRE Rule 702. “[T]he touchstones of admissibility for expert testimony under HRE Rule 702 are relevance and reliability.” State v. Vliet, 95 Hawaii 94, 106, 19 P.3d 42, 54 (2001).

The HSC noted that in civil cases, medical opinions must be based on a reasonable degree of scientific or medical probability—not certainty. Miyamoto v. Lum, 104 Hawai'I 1, 15-16, 84 P.3d 509, 523-24 (2004); Craft v. Peebles, 78 Hawaii 287, 305, 893 P.3d 138, 156 (1995). The court also noted that federal courts interpreting the identical FRE Rule 702 have rejected the need for scientific certainty before admitting expert opinion. United States v. Mornan, 413 F.3d 372, 376, 381 (3d. Cir. 2005); United States v. Cyphers, 535 F.2d 1064, 1071-73 (7th Cir. 1977). Other jurisdictions concur. State v. Gardner, 616 A.2d 1124, 1129 (R.I. 1992); Robinson v. United States, 50 A.3d 508, 514 (D.C. 2012).

Given this consensus, the HSC held that “trial courts should not require a reasonable degree of scientific certainty before admitting expert opinions but may exclude testimony based on speculation or possibility.” The HSC further held that this was plain error. The trial court’s preclusion deprived DeLeon from presenting a complete defense. The self-defense claim relied on Powell’s aggression just before the shooting.

Standard Self-Defense Instruction is A-O.K. Self-defense is based in part on the defendant’s perception for the need to employ the protective force. “[A] person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action[.]” HRS § 703-304(3).

DeLeon argues that the standard jury instruction on self-defense failed to include this language. The HSC noted that while it does not track the statute verbatim, it does properly instruct the jury. The jury instruction stated that “[t]he reasonableness of the defendant’s belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be.” This was sufficient for the HSC in State v. Augustin, 101 Hawaii 127, 127 63 P.3d 1097, 1097 (2002) and it was fine here. After all, the court “is not required to instruct the jury in the exact words of the applicable statute but to present the jury with an understandable instruction that aids the jury in applying the law to the facts of the case.” State v. Metcalfe, 129 Hawaii 206, 230, 297 P.3d 1062, 1086 (2013). Basically, the HSC upheld the standard jury instructions.

Justice Acoba’s Concurrence and Dissent. Justice Acoba concurred because he believed a new trial was necessary. He wrote separately because he felt that the self-defense jury instruction should be modified so that the jury will be instructed that DeLeon was permitted to estimate the necessity of using deadly force if he could not retreat safely. He also wrote that the jury must be instructed about the viewing the circumstances surrounding DeLeon’s use of deadly force. Justice Acoba dissented in Augustin and he dissented here. Justice Pollak joined.