Wednesday, April 2, 2014

Specific Instances of Abuse Cannot be Charged as a Continuous Course of Conduct

State v. DeCoite (HSC February 28, 2014)
Background. Henry DeCoite was charged with a single count of abuse of a family or household member. HRS § 709-906. The complaint stated that the offense took place “during or about the period between February 1, 2005, through June 1, 2007, inclusive, as a continuing course of conduct[.]” In response to a discovery request, the prosecution produced two instances of abuse on November 29, 2006 and on March 13, 2007. DeCoite filed a motion to dismiss the complaint on the grounds that the abuse statute does not allow the prosecution to charge the offense as a continuing course of conduct. At the hearing, the prosecution apparently presented some evidence from a domestic violence expert that multiple instances of abuse toward the same person in a relationship are part of that cycle of violence. The family court (Judge Richard T. Bissen) granted the motion. The prosecution appealed and the ICA reversed. DeCoite petitioned for certiorari.

Discreet Instances of Abuse are not a Continuing Course of Conduct . . . “It shall be unlawful for any person . . . to physically abuse a family or household member[.]” HRS § 709-906(1). The HSC zeroed in on the issue to determine a “narrow” view as to whether two instances of abuse constitutes a continuous course of conduct. A continuous offense arises when there is “a continuous, unlawful act or series of acts set afoot by a single impulse and operated by an unintermittent force, however long a time it may occupy[.]” State v. Arceo, 84 Hawaii 1, 18, 928 P.2d 843, 860 (1996). “The test to determine whether [a] defendant intended to commit more than one offense in the course of a criminal episode is whether the evidence discloses one general intent or discloses separate and distinct intents.” State v. Castro, 69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988). When there “is but one intention, one general impulse, and one plan, there is but one offense.” Id.

So much for the Cycle of Violence . . .
The HSC expressly rejected the prosecution’s contention that the instances of abuse were part of a continuous “cycle of violence.” Here, the conduct element is the act of “physical abuse.” HRS § 709-906(1). Physical abuse means “to maltreat in such a manner as to cause injury, hurt or damage to that person’s body.” State v. Fields, 115 Hawaii 503, 530, 168 P.3d 955, 982 (2007). This, according to the HSC, contemplates discrete episodes of violence whether they occur as an isolated incident or part of a series. The HSC also noted that the “cycle of violence” may include multiple instances of abuse interspersed with a make-up or “loving” stage, but to be a continuous course of conduct, there must be a single criminal impulse. The desire or impulse of the serial abuser is control and power, which are not criminal impulses. In sum, the HSC held that “as a matter of law, an alleged two-year period of domestic abuse can never be charged as a continuous conduct offense.”

The Merger Footnote. In a footnote, the HSC warned that this holding does not stop the defense from seeking a merger of multiple counts of domestic abuse “that factually arise from a single, discrete criminal transaction.” See HRS § 701-109(1)(e). And so, perhaps the cycle of violence does live on, but only as a way for the defense to merge multiple charges of domestic abuse. Ironies abound.

Justice Acoba’s Concurrence. Justice Acoba concurred and wrote separately to note that the issue of whether an offense can be a continuous course of conduct must be determined on a case-by-case basis. He agreed with the result under these particular facts that the two incidents here were not part of a continuous course of conduct.


Justice Pollak’s Dissent. Justice Pollak dissented and wrote that the abuse statute can be construed to include a continuing course of conduct. He took the position that abuse of a family or household member occurs multiple times over a period of time. Hence the statute requiring a “cooling off” period. Justice Pollak felt that the two-year marking as a matter of law was also arbitrary and restricted the flexibility that the case-by-case analysis normally affords. He also wrote that the record in this particular case was too incomplete to warrant adequate appellate review of the issue. Ultimately, he believed that the case should have been remanded back to the trial court to enter findings regarding DeCoite’s motion to dismiss for a completely different issue—violations of the statute of limitations.

A Tachibana Colloquy is not Reciting “a Litany of Rights”

State v. Pomroy (HSC January 31, 2014)
Background. Henry Pomroy was charged with a single count of assault in the third degree. He waived his right to a trial by jury. On the day of trial, the district court did not conduct a colloquy with Pomroy about his right to testify or not testify before trial began. At trial, the complainant, Clark Lukens, testified that Pomroy was his neighbor at the Hale Moana Apartment Complex in Hilo. While he was in the backyard, Pomroy approached him and was screaming. Pomroy accused Lukens of trying to get Pomroy evicted. After five minutes of this, Pomroy left. Lukens then went into an elevator and then Pomroy suddenly appeared out of nowhere. Pomroy went into the elevator with him and the doors closed. According to Lukens, Pomroy shoved, pushed, and elbowed him several times. When the doors opened, Pomroy stopped the attack and left. He said that he had been hit very hard and was in extreme pain, but admitted that he suffered no injuries. None of the other witnesses testified about visible injuries. After the prosecution rested, Pomroy’s counsel said, “we’ll rest too, Your Honor.”

The district court (Judge Barbara Takase) addressed Pomroy. The court told Pomroy that he had the right to testify and that “decision is yours and yours alone. If you choose to testify you will be subject to cross-examination by the state. If you choose not to testify, I cannot hold that against you. But the only evidence I will have is what the State has presented, unless you have other witnesses; you understand that?” Pomroy replied, “Yes, ma’am.” Then this happened:

THE COURT: Alright. Is it your choice to testify or not?
THE DEFENDANT: I think I have already said what has happened, yeah. I don’t have to testify.
THE COURT: Alright. I don’t know what you mean by “I’ve already said” because—
THE DEFENDANT: In my report, when I made it two years ago, what had happened. That’s pretty much what it is.
THE COURT: So you’re talking about what the officer testified to? Because you understand the police report is not in evidence. You understand that?
THE DEFENDANT: I don’t understand what you’re saying.
(Discussion between Counsel and Defendant)
THE COURT: Alright.
THE DEFENDANT: I don’t need any testimony I guess.
THE COURT: Your choice not to testify?
THE DEFENDANT: Yes, ma’am.

The defense rested (again) and the district court found Pomroy guilty as charged. Pomroy filed a motion for new trial alleging that the district court failed to inform him about his right to testify before trial began and that the colloquy was insufficient to ensure a knowing, intelligent, and voluntary understanding of the right to testify before resting. The motion was denied and Pomroy was sentenced to 6 months jail (with 90 days stayed). Pomroy appealed and the ICA affirmed (Nakamura, Foley, and Fujise). Then he petitioned for cert.

The Right to Testify and Ensuring that you Know About it. “In the trial of any person on the charge of any offense, he shall have a right . . . to be heard in his defense.” State v. Tachibana, 79 Hawaii 226, 231-32, 900 P.2d 1293, 1298-99 (1995). In order to protect this right, “trial courts must advise criminal defendants of their right to testify and must obtain an on-the-record waiver of that right in every case in which the defendant does not testify.” Id. at 236, 900 P.2d at 1303. The actually colloquy must include informing the defendant of (1) the right to testify, (2) that if he or she wishes to testify, no one can prevent the person from doing so, (3) if the person testifies, he or she will be subjected to cross-examination by the prosecution, and (4) the defendant does not have to testify and if he or she does not, a jury would be instructed about that right. Id. at 236 n. 7, 900 P.2d at 1303 n. 7. The “ideal time to conduct the colloquy is immediately prior to the close of the defendant’s case.” Id. at 237, 900 P.2d at 1304.

In addition to this colloquy, the HSC has required a similar colloquy at the start of trial. State v. Lewis, 94 Hawaii 292, 12 P.3d 1233 (2000). The requirement, however, is not as strong as the one before the defense rests. The failure to give a pre-trial colloquy requires additional proof of “actual prejudice” before it arises to reversible error. Id. at 297, 12 P.3d at 1238.

The Colloquy at the End of Trial was Defective. Here, the HSC held that the colloquy at the end of the trial was insufficient. The HSC held that the district court failed to advise Pomroy that he had the right not to testify and that no one can prevent him from testifying. Moreover, the HSC held that this was not a “true colloquy.” A colloquy is an “oral exchange” where the “judge ascertains the defendant’s understanding of the proceedings and of the defendant’s rights.” State v. Han, 130 Hawaii 83, 135, 306 P.3d 128, 90 (2013).

That did not happen here. The district court did nothing more than recite “a litany of rights” and ask if Pomroy understood that litany. There was no engagement to ensure the Pomroy understood his rights. It became even more evident that Pomroy did not understand because he told the district court that he felt he said what he needed to say in some police report that was never admitted into evidence. And even after it was explained to him that that statement was not in evidence, there was no engagement to ensure that he understood the rights that the district court had recited. Thus, the conviction was vacated and remanded for new  trial.

Ensuring an Engagement. This is a tough one. In Han and here, the trial courts did not go through each right and ask the defendant after reciting each right if he or she understood. Would that have made the difference? Why? How would that be any different? How does that show engagement? What if instead of saying “that” the district court said, “do you understand all of these rights?” It certainly would still be a “litany of rights.” Would it have made a difference at all?

Chief Justice Recktenwald’s Dissent. The Chief Justice believed that the record showed an adequate waiver of the right to testify at trial. The district court, he believed, is in the best position to evaluate not only the words coming out of Pomroy’s mouth, but his demeanor and the inflection in his voice. There is nothing in the record that would assume the district court ignored any uncertainties on display in the district court. Justice Nakayama joined.

Prosecutor Can't Supply Legal Definitions for the Court at Closing

State v. Basham (HSC February 6, 2014)
Background. Michael Basham and his son, Aliikea, were charged with assault in the first degree. The prosecution alleged that the Bashams intentionally or knowingly caused “serious bodily injury” to Steven Bloom. See HRS § 707-710. Both went to trial at the same time.

The prosecution adduced these facts from witness testimony. Steven Bloom and his wife, Jennifer Chavez, were driving around Ewa Beach looking for a beach. They got into a minor motor vehicle accident with a blue car, which collided into the back of their car. Both pulled off to the side of the road. The driver was uninjured and Bloom suggested that they exchange insurance information. The driver said he had to call his father. Bloom went back to his car to get his proof of insurance and when he walked back to the blue car he saw Aliikea running up from a nearby beach. Aliikea, according to Bloom, was loud, aggressive, and was trying to intimidate him. Aliikea pushed Bloom. Michael came up from the beach too. Michael was upset too, but Bloom recalled Michael yelling at Aliikea and the driver not hit him. But when Michael showed up, the driver got agitated. Aliikea pushed Bloom again, and put his hands up to or grabbed Bloom’s throat. Bloom knocked Aliikea’s hand away, told Chavez to get behind him, and then he lost consciousness. He could not remember what happened next. He woke up later in his car.

Chavez testified that Aliikea pushed Bloom to the ground and Bloom hit his head. He went down, Basham held him down while Aliikea kicked Bloom and the driver jumped on top of Bloom. On cross-examination, Chavez clarified that Basham held him momentarily and when Aliikea was kicking Bloom and the driver was jumping on him, no one was holding him down. Bloom started having a seizure and Chavez was screaming at the men. When they stopped, she helped him back into his car.  Chavez called 911 and was still on the phone with dispatch when Michael came and started hitting their car. The paramedics and the police showed up soon after that. The police officers testified that when they got there, the driver was gone and Aliikea and Michael were still there. The police were unable to determine what happened.

Michael did not testify, but Aliikea did. He told the jury that he was with his family at the beach when he saw a motor vehicle accident involving his father’s car. Michael told Aliikea to go check it out. Aliikea admitted he was frustrated with his brother, who had been driving the car. He was scolding his brother when Bloom kept coming up to them with his insurance information. Aliikea said he told Bloom to step away until Michael could get there. When Michael showed up, he started talking to Bloom while Aliikea talked to his brother, who was getting a little “crazy.” According to Aliikea, things were fairly calm when out of nowhere, the driver attacked Bloom and started punching him. He said that neither he nor his father held Bloom to the ground. He confirmed that after the attack, the couple went back into their car and it looked like they were going to drive off. Aliikea’s brother was gone already. They knew the police were coming, so Michael told his son to let them know not to drive off. He stood in front of the car to stop them from leaving. Then the cops came.

During the settling of jury instructions, the parties agreed that the court (Judge Randal Lee) should instruct the jury about accomplice liability. The actual instruction given to the jury went like this:

A defendant charged with committing an offense may be guilty because he is an accomplice of another in the commission of the offense. The prosecution must prove accomplice liability beyond a reasonable doubt.

A person is an accomplice of another in the commission of an offense if, with the intention of promoting or facilitating the commission of the offense, the person aids or agrees or attempts to aid the other person in planning or commission of the offense.

Mere presence at the scene of an offense or knowledge that an offense is being committed, without more, does not make a person an accomplice to the offense. However, if a person plans or participates in the commission of the offense with the intent to promote or facilitate the offense, he is an accomplice to the commission of the offense.

The jury was not instructed on the definition of the words “intent to promote or facilitate the commission of the offense.”

At closing, the prosecutor argued that Bloom and Chavez were completely credible and “on behalf of the prosecution, I adamantly state to you, that Mr. and Mrs. Bloom have been completely credible witnesses. . . . They have absolutely no reason to fabricate or otherwise make up the accounts that they recited to you in explicit detail.” Aliikea, on the other hand, “has absolutely no reason to tell you the truth.”

The prosecutor moved on to the accomplice instruction. “Let’s define a couple of those words and put it in everyday English that we can understand. A person is an accomplice if with the intent to promote—what does that ‘promote’ mean? It simply means for our purposes to encourage, the desire to bring about.” Basham objected and during a bench conference, Basham argued that the prosecutor’s definition was a “far cry” from the statutory definition.” Aliikea joined in the objection. The trial court overruled them. The prosecutor continued to tell the jurors that “promote” simply meant “to encourage,” “facilitate,” “make easy” or “bring about.”

Both Bashams were found guilty as charged and sentenced to ten years prison. Basham appealed to the ICA, which affirmed, and then he petitioned for a writ of cert.

Giving your own Erroneous Legal Definitions at Closing is Prosecutorial Misconduct. Basham raised two instances of prosecutorial misconduct. The first was that the prosecutor made incorrect and misleading statements about the law of accomplice liability. The prosecutor defined for the jury the word “promote.” The HSC examined the accomplice statute and held that the word “promote,” though undefined, requires a “conscious objective of bringing about the commission of the offense.” Having the intent to make easy or encourage criminal conduct is not the same. Arguments “of counsel which misstate the law are subject to objection and to correction by the court.” State v. Espiritu, 117 Hawaii 127, 140, 176 P.3d 885, 898 (2008). The prosecutor here provided an erroneous definition of accomplice liability and instead of admonishing the prosecutor, the court overruled Basham’s objection. By overruling the objection, “the court endorsed the definition given by the prosecutor.” The HSC also noted that this error is not harmless beyond a reasonable doubt. There was some question as to whether Basham was an accomplice at all. The HSC vacated the judgment and remanded for new trial.

The Argument that Basham Lied to the Police Without Basham Testifying is Improper Argument. In addition to adding legal terms, the prosecutor argued that Basham was lying to the police. The prosecutor pointed out that the responding officer had determined—after much confusion—that Basham had been the driver that hit Bloom. The prosecutor queried, “who could the only source of that information be? Not [Bloom] who had been knocked unconscious. Michael Basham.” The prosecutor concluded that Basham “took the role of his son as the driver and lied to the police.” The HSC disagreed with the ICA and held that this was not a logical inference that a prosecutor could have made to the jury. Even if it had been a logical inference, the allegation of lying to the police carried the improper perception “by the public as particularly wrongful[.]” Moreover, the HSC noted that if the prosecutor had even tried to admit this as evidence, it would be deemed inadmissible under HRE Rule 404(b) and 403.

Prosecutor’s Comments on the Credibility of Witnesses Improper. Finally, the HSC addressed the prosecutor’s comments that “on behalf of the prosecution, I adamantly state to you, that [Bloom] and [Chavez] have been completely credible witnesses, that they are worthy of your belief.” And that Aliikea had “no reason to tell you the truth.”

According to the HSC, these comments are undoubtedly “an expression of a personal view on the credibility of the State’s witnesses and the guilt of the defendants.” More importantly, the HSC noted that the prosecutor had no basis for making this comment other than the fact that Aliikea was the defendant and standing trial as the accused. This is an impermissible. The prosecutor’s “improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986). Without any particular basis for this assertion, it is a generic accusation that defendants cannot or do no tell the truth. It is “improper, under article I, section14 of the Hawaii Constitution, for the prosecution to make generic accusations during closing argument that a defendant tailored his testimony based solely on the defendant’s exercise of his constitutional right to be present during the trial.” State v. Mattson, 122 Hawaii 312, 326, 226 P.3d 482, 496 (2010). So too, the prosecutor cannot ask the jury to infer a defendant’s incredibility based on the mere fact that the person is a defendant. According to the HSC, Basham was being penalized simply because he was the defendant. This is wholly improper.

Justice Nakayama’s Dissent. Justice Nakayama disagreed with the HSC’s interpretation of the accomplice statute and believed that the prosecutor’s definition of the word “promote” was harmless. For her, the prosecutor’s definition was not all that different than what the statute required and, thus, the court properly overruled the objection. As for the other comments, Justice Nakayama did not agree with the majority that they arose to prosecutorial misconduct. Her disagreement centered largely around her position that the court should not be recognizing plain error in these matters especially since Basham did not object to some comments. As for the prosecutor’s personal view, she believed the comment was nothing more than a “rhetorical device” and that the comment about the defendant having no reason to tell the truth was appropriate in light of the conflicting testimony. Chief Justice Recktenwald joined.