Monday, May 19, 2014

A Temper Tantrum about Going to bed Early isn't Terroristic Threatening

In re PP (ICA April 30, 2014)
Background. A minor was charged with terroristic threatening in the second degree. HRS § 707-717(1). He was accused of threatening by words or conduct to cause bodily injury to Jeffrey Kuewa in reckless disregard of the risk of terrorizing him. At trial before the family court, Kuewa testified that he is a counselor at a youth shelter in Haleiwa. He caught the minor smoking in his room and imposed and early bed time (EBT) at 7:00 p.m. Later that day, Kuewa discovered the minor had not finished his chores, was screaming, and was in an out-of-bounds area in the shelter. He gave him two more EBTs, but never told the minor. The next day, the minor approached Kuewa in an aggressive manner outside the shelter and glared at him. Kuewa told him the additional EBTs were based on going out of bounds and screaming. The minor told him he thought it was just for one day. Kuewa told him he was missing the point of an EBT and admitted he compared the minor a “little girl.” Kuewa testified that he was maybe expecting the minor to swing at him. He never did and walked back into the shelter.

Kuewa later learned that once inside the shelter, the minor was telling people that he was going to get Kuewa. The minor went into detail about how he was going to make Kuewa his “bitch” and would kick his ass. A counselor testified that as the minor said this, he was punching the couch and then “even threatened to kill Jeff, things like that.” Kuewa wasn’t around. He learned about it later and called the police. The counselor told the minor that he needed to stop acting like this or else he would not able to go to the beach. He stopped and went to the beach. When they all returned, Kuewa was there in the parking lot.

The family court found that the minor committed the offense. Minor appealed.

Terroristic Threatening and a True Threat. “A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person . . . [w]ith the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person[.]” HRS § 707-715. The state of mind needed to find the offense requires at a minimum recklessness as defined in HRS § 702-206. According to the ICA, the State was required to show that the minor, by word or conduct, threatened to cause bodily injury to Kuewa in reckless disregard of the risk of terrorizing him.

The “True Threat” Requirement. This offense requires proof that the conduct had the attributes of a “true threat.” “Proof of a ‘true threat’ focuses on threats which are so unambiguous and have such immediacy that they convincingly express an intention of being carried out. So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as of purpose and imminent prospect of execution, the statute may properly be applied.” State v. Chung, 75 Haw. 398, 417, 862 P.2d 1063, 1072-73 (1993).

Later, the HSC clarified that a “true threat” is something different than hyperbole and that the prosecution has to “prove beyond a reasonable doubt that the alleged threat was objectively capable of inducing a reasonable fear of bodily injury in the person at whom the threat was directed and who was aware of the circumstances under which the remarks were uttered.” State v. Valdivia, 95 Hawaii 465, 475, 24 P.3d 661, 671 (2001). Finally, the HSC again reiterated that proof of a “true threat” is required in State v. Martins, 106 Hawaii 136, 102 P.3d 1034 (2004).

Ranting and Raving on the Couch is not a True Threat. The ICA characterized the evidence as a couch-rant. It was “a temper tantrum by a frustrated and foul-mouthed kid who was reacting . . . to what he perceived as unjustified, unfair punishment. . . . The evidence is that he just sat there, punching on the couch, carrying on with curse words and adolescent taunts about how he would show whose dick is bigger, how he was going to get Kuewa for punishing him. Notwithstanding the caustic and hyperbolic language he used, there is simply no evidence that could reasonably support a conclusion that Minor was aware of anything but his own childish feelings about the circumstances.”

The ICA held that this was not a true threat. The Minor was having a tantrum on the couch and was making obscene, over-the-top threats to an adult who was not there. When ordered to stop or he won’t got to the beach, he stopped. The ICA reversed the family court’s findings and decree.


Chief Judge Nakamura’s Dissent. The Chief Judge wrote that there was sufficient evidence supporting the family court’s findings of the offense. The minor was shouting and punching the couch in the presence of two workers at the shelter. He was ranting about sexually assaulting and killing Kuewa when he came back to work. This was enough evidence for the Chief Judge.

Monday, May 5, 2014

Yes, Forgery Includes Using Counterfeit Cash

State v. Eberly (ICA March 31, 2014)
Background. Bardwell Eberly, Antony Moore, and Chrisitna Whitley were originally charged with forgery in the first degree. HRS § 708-853. Specifically, they were charged with “uttering” a forged instrument “purported to be United States Currency.” Eberly pleaded guilty to a reduced charge of forgery in the third degree. Before sentencing, however, the HSC in an unrelated case affirmed Eberly’s conviction and sentence to prison. The sentence was stayed pending appeal this entire time. Now that it had come down, the trial court in this case told Eberly that he could not be sentenced to probation. Eberly moved to withdraw his guilty plea. He was sentenced to a year in jail. Eberly appealed.

The Issue and the two big Procedural Problems. Eberly presented a straight-forward issue on appeal: the forgery statutes plainly and unambiguously do not include counterfeiting U.S. currency. The problem in getting to the issue is that it was never raised below. There’s also the additional problem of the guilty plea: “a guilty plea made voluntarily and intelligently precludes a defendant from later asserting any nonjurisdictional claims, including constitutional challenges to the pretrial proceedings.” State v. Morin, 71 Haw. 159, 162, 785 P.2d 1316, 1318 (1990).

The ICA got around these problems and reviewed the case de novo because the issue goes to the heart of a court’s jurisdiction in a criminal case. The “existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of a cause of action.” Amantiad v. Odum, 90 Hawaii 152, 158-59, 977 P.2d 160, 166-67 (1999). “If a court lacks jurisdiction over the subject matter of a proceeding, any judgment rendered in that proceeding is invalid.” Bush v. Haw’n Homes Com’n, 76 Hawaii 128, 133, 870 P.2d 1272, 1277 (1994). And so, the ICA did not review this issue for plain error but instead took a fresh de novo review to see if the circuit court had jurisdiction to enter the judgment of conviction and sentence. Turns out it did.

Jurisdiction over Criminal Proceedings. Circuit courts have jurisdiction over “[c]riminal offenses cognizable under the laws of the State, committed within their respective circuits or transferred to them for trial by change of venue from some other circuit court[.] HRS § 603-21.5(a)(1). This is a “fundamental and indispensable prerequisite [] to a valid prosecution.” State v. Alagao, 77 Hawaii 260, 261-62, 883 P.2d 682, 683-84 (App. 1994).

Using Counterfeit cash Constitutes “Uttering” a “Forged Instrument.” The ICA rejected Eberly’s argument that counterfeiting U.S. currency is not conduct fitting the forgery statutes. A person commits the act of forgery when the person “falsely makes, completes, endorses, or alters a written instrument, or utters a forged instrument[.]” HRS § 708-851. The language at issue centers around “utters a forged instrument.” See HRS § 708-853. The charge limited Eberly’s conduct to “uttering” a forged instrument. A “written instrument” is defined as any “paper, document, or other instrument containing written or printed matter or its equivalent” or a “token, coin, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification[.]” HRS § 708-850(7). Finally, “utter” means “offer, whether accepted or not, a forged instrument with representation by acts or words, oral or in writing, that the instrument is genuine.” HRS § 708-850(8).

The factual basis for the guilty plea stated that Eberly gave Whitley a counterfeit $20 bill. According to the ICA, the bill is a “written instrument” because it’s a paper, containing printed matter. The act of giving it to Whitley was enough for the ICA to hold that handing it over to Whitley was enough to show forgery.


A Field Day for Appellate Attorneys? The actual issue in this case is not as newsworthy as the way the ICA got to it. One of the biggest problems for appellate attorneys once they are hired or appointed to a criminal case is to search the record for some shred of evidence showing that counsel preserved an issue on appeal. No one wants the appellate court to dodge an issue simply because it was never raised. That’s been the plain errorbattle raging in the HSC for some time now. The other big issue that arises comes with pleading guilty or no contest. Once that happens, then any issues that may have went down prior to the change of plea are considered waived and can’t be resurrected at trial. Now, it seems that jurisdiction can be the means to get certain issues before an appellate court—even if the defendant pleaded out and even if counsel never raised the issue below.

The DUI Exception to Miranda?

State v. Won (ICA March 28, 2014)
Background. Yong Shik Won was charged with a single count of operating a vehicle while under the influence of an intoxicant. Won was pulled over in the middle of the night by the police and taken to the police station. Once at the station, the police read to Won a form with numbered paragraphs. Paragraph 1 read that any person operating a vehicle on the roadway “shall be deemed to have given consent to a test or tests” to determine the driver’s blood-alcohol content (BAC). Paragraph 2 read that Won was “not entitled to an attorney before you submit to a test or tests[.]” Paragraph 3 read that Won may refuse to take a test “except as provided in section 291E-21. However, if you refuse, “you shall be subject to up to thirty days imprisonment and/or fine up to $1,000 or the sanctions of 291E-65, if applicable.”

Won initialed paragraphs 1 and 3, but not 2 (the bit about the attorney). He told the police that he did not agree with that and would not initial it. Then he signed and dated the form and said he agreed to take a breath test, but refused a blood test. The breath test was given and the results showed a BAC of 0.170.

Won filed a motion to suppress, which was denied by the district court (Hon. Judge David Lo), and was found guilty. Won appealed. The Attorney General’s office filed an amicus brief arguing that the implied consent laws were constitutional.

The Implied Consent Statutory Scheme. Any person operating a vehicle on a public way, street, road, or highway “shall be deemed to have given consent . . . to a test or tests” to determine the driver’s blood-alcohol level. HRS § 291E-11(a). The test can only be administered after the driver “has been informed by a law enforcement officer that the person may refuse to submit to testing under this chapter.” HRS § 291E-11(b)(2). If a person refuses to take a test, “none shall be given.” HRS § 291E-15. For a long time, the consequences for a refusal were administrative in nature. In other words, it would adversely affect the person’s driver’s license and was not a criminal offense. HRS §§ 291E-41 and 65.

But in 2011, the Legislature criminalized acts of refusal: “[R]efusal to submit to a breath, blood, or urine test as required by part II is a petty misdemeanor.” HRS § 291E-68. A petty misdemeanor carries maximum penalties of 30 days in jail and a  fine of up to $1,000. HRS § 706-663 and 706-640.

Won’s Miranda Argument. Won argued that because it is now a criminal offense to refuse chemical testing, the police are required to apprise him of his constitutional right to remain silent, right to confer with counsel even if he cannot afford one, and be told that anything he says can and will be used against him in court. Because the police failed to inform him of these rights, his response to the implied consent form is inadmissible and the breath test results must be suppressed as a fruit of the poisonous tree. The ICA disagreed.

Miranda Warnings Required in Custodial Interrogations . . . The United States and Hawaii constitutions require “that before any reference is made at trial to statements made by the accused during custodial interrogation, the prosecutor must first demonstrate that certain safeguards were taken before the accused was questioned . . . [T]he prosecutor must show that each accused was warned that he had a right to remain silent, that anything he said could be used against him, that he had a right to the presence of an attorney, and that if could no[t] afford an attorney one would be appointed for him.” State v. Ketchum, 97 Hawaii 107, 116, 34 P.3d 1006, 1015 (2001); see also Miranda v. Arizona, 384 U.S. 436 (1966).

These warnings are required when the suspect is (1) in custody and (2) subject to an interrogation. State v. Ketchum, 97 Hawaii at 118-19, 34 P.3d at 1017-18. The ICA agreed with Won that there is no question that when the form was presented to him at the police station, Won was in custody. The court disagreed about interrogation.

“Interrogation” arises when the police officer “should have known that his or her words or actions were reasonably likely to elicit an incriminating response from the person in custody.” Id. at 119, 34 P.3d at 1018; See also Rhode Island v. Innis, 446 U.S. 291, (1980).

. . . but not Always. The ICA added that the law distinguishes a suspect being compelled to provide testimonial communications—in which Miranda applies—from being compelled to become the source of real or physical evidence. The communication, according to the ICA, is “testimonial” when the communication relates “to a factual assertion or disclose[s] information.” Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990).

The Statutory Exception to Miranda Requirements!? The ICA rejected Won’s argument that Miranda warnings were required before being presented with the implied consent form. The ICA held inter alia that reading the form to Won did not constitute and interrogation and that his response was not a “testimonial communication.” According to the ICA, a DUI investigation presents “unique circumstances” for the police. The statutes require them to inform arrestees that they can refuse testing. In other words, their conduct in dealing with suspects is highly regulated by statute and is designed to prevent coercive police tactics Miranda was intended to protect. According to the ICA, the police are not looking for an incriminating response, but instead are just trying to comply with a statute. But putting that aside, the ICA concluded that the police inquiry “does not seek testimonial evidence because it is the act or conduct of refusing, not the means by which the refusal is communicated, that violates the criminal refusal statute.” In the end, the ICA held that presenting the form to Won did not constitute “interrogation” for Miranda purposes.

The Statutory Right to Counsel didn’t Apply Either. “It shall be unlawful in any case of arrest for examination . . . [t]o deny the person so arrested the right of seeing, at reasonable intervals and for a reasonable time at the place of the person’s detention, counsel or a member of the arrested person’s family . . . [and] [i]n case the person arrested has requested that the person see an attorney . . ., to examine the person before the person has had a fair opportunity to see and consult with the attorney[.]” HRS § 803-9. The ICA held that this statute, like Miranda, did not apply in Won’s case because this statute was in effect when the HSC came down with State v. Severino, CITE, which held that motorists are not entitled to consult with counsel before deciding on taking a test.
And even if this statutory right to counsel did apply, the ICA would not have suppressed the evidence. “Generally, where evidence has been obtained in violation of a statute, that evidence is not inadmissible per se in a criminal proceeding unless the statutory violation has constitutional dimensions” or if the defendant can show a nexus between the violation and the evidence. State v. Edwards, 96 Hawaii 224, 237-39, 30 P.3d 238, 251-53 (2001). Given the Miranda treatment, the ICA held that there was no constitutional dimension and Won failed to show the requisite nexus.

Telling Suspect he does not have the Right to Confer with Counsel is O.K. In addition to the constitutional and statutory rights, the forms themselves have to be accurate. “[A] driver’s ‘implied consent’ to an evidentiary chemical alcohol test is qualified by his or her implied right to refuse such a test after being accurately informed of his or her statutory right to consent or refuse, as well as the consequences of such consent or refusal.” State v. Wilson, 92 Hawaii 45, 49, 987 P.2d 268, 272 (1999). “Hawaii’s implied consent scheme mandates accurate warnings to enable the driver to knowingly and intelligently consent to or refuse a chemical alcohol test.” Id.

The ICA examined whether paragraph 2—which informed Won that he could not consult with an attorney before deciding on whether to take a test—was misleading. The ICA rejected this contention because there was no right to counsel to begin with.

Criminalizing the Act of Refusal is not Unconstitutional. The ICA moved on to reject Won’s contention that HRS § 291E-68 was unconstitutional. Won argued that in light of the recent case from the SCOTUS, Missouri v. McNeely, 133 S. Ct. 1552 (2013), he had a constitutional right to refuse all chemical testing and the criminalization of that right is unconstitutional. In that case, the SCOTUS held that the warrantless removal of a suspect’s blood can be justified when the prosecution shows an exception to the warrant requirement and that exigency is not a per se exception.

The ICA distinguished McNeely on several grounds. First, it noted that McNeely involved the warrantless intrusion under the skin for extracting a person’s blood. Won submitted to a breath test, which is less intrusive. “Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment.” Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 625 (1989). The ICA examined the refusal statute with regard to only breath tests, not blood tests. According to the ICA, McNeely did not address whether breath tests were subject to the warrant requirement or any of the remaining exceptions to the warrant requirement—like consent. The ICA examined the purpose of the implied consent scheme and balanced that against the privacy rights of drivers. In the end, the statute was deemed constitutional as it applied to breath tests anyway.

No Need for a Warrant in a Breath Test. The ICA made a short analysis about whether the police needed to obtain a search warrant before having Won submit to a breath test. In essence, it held that implied consent scheme was good enough for consenting to a search. It compared this scenario to airport inspections. See State v. Hanson, 97 Hawaii 71, 34 P.3d 1 (2001) (passenger’s implied consent to search toolbox at airport inspection extended to all contents in the box even after the passenger withdraws consent to search).

Editor’s Note. The ICA’s Miranda analysis is deeply strange. It is well-established that the police have to apprise suspects of their Miranda rights when they are in custody and subjected to an interrogation. An interrogation is determined when the police—by word or conduct—engage in express questioning or engage in conduct take action that they know or should know is likely to elicit an incriminating response. That’s it. There are no exceptions to this requirement.

And yet the ICA held that presenting implied consent forms requiring drivers to choose whether to submit to a test or refuse is not conduct by the police arising to “interrogation” for Miranda purposes. Why? How come? According to the ICA, the police are just complying with a statute—it is not designed to elicit incriminating statements—and thus, it is not something that the police know or should know to elicit an incriminating response.


What happens when a person refuses? What is a prosecution for a refusal supposed to look like? The best evidence of the refusal would be none other than the form and the statement from the driver that he or she “refused” to take a test. Certainly those are incriminating statements. Right? I guess not.