Friday, December 4, 2015

Breathing the Constitution into the Breath Test

State v. Won (HSC November 25, 2015)
Background. Yong Shik Won was pulled over for speeding. The officers suspected that he had been drinking so they ordered him out of the car. Won submitted to field sobriety tests. The officers arrested him for operating a motor vehicle while under the influence of an intoxicant. They took him to the police station. There, they handed him a form and read it to him. The form stated that any person operating a vehicle on a public road is deemed to have given consent to a test for purposes of determining alcohol concentration.

The form also read that Won he could refuse to take a test but “if you refuse to submit to a breath, blood, or urine test, you shall be subject to up to thirty days imprisonment and/or fine up to $1,000.” Won picked a breath test. The police had him blow into a machine called the Intoxilyzer 8000. His BAC came to 0.17 grams of alcohol per two hundred ten liters of breath (which is over the limit of 0.08). Won moved to suppress the blood results. The motion was denied. He appealed to the ICA and the ICA affirmed. The HSC accepted his petition for certiorari.

The Right to be Free from Unreasonable Searches and Seizures Includes Intrusions into the Body. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated” without a warrant. Haw. Const. Art. I, Sec. 7. “An invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” Missouri v. McNeely, 133 S.Ct. 1552, 158 (2013). Subjecting a person to a breath test usually requires the production of alveolar or “deep lung” breath for chemical analysis and it is considered a “search” for purposes of the Fourth Amendment and the Hawaii Constitution. Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 616-617 (1989).

The Consent Exception to the Warrant Requirement. The Hawaii Supreme Court held that a breath test is a “search” that requires a warrant unless the prosecution can show one an “established and well-delineated exception.” State v. Ganal, 81 Hawaii 358, 368, 917 P.2d 370, 380 (1996). Consent is such an exception. Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951 (1981). Consent, however, is more than the absence of an objection. The prosecution must show that it was given voluntarily. State v. Bonnell, 75 Haw. 124, 147-148, 856 P.2d 1265, 1277 (1993); State v. Shon, 47 Haw. 158, 166, 385 P.2d 830, 836 (1963). Whether consent was given freely and voluntarily depends on the totality of the circumstances. State v. Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984).

The Coercion Problem. Consent cannot be coerced. Nakamoto, 64 Haw. at 21, 635 P.2d at 951. The problem in this case—and all OUI cases—is that in 2010, the Legislature criminalized the act of refusing to take a test. HRS § 291E-68. According to the HSC, the form used by the police in Won’s case made it clear that Won had to pick between consenting to a search without a warrant or face a criminal penalty for engaging in conduct protected by the constitution. The HSC viewed this not as a “refusal” to submit to a test, but a refusal to consent to a search. This was untenable. “[T]he government may not condition a right guaranteed in our constitution on the waiver of an equivalent constitutional protection.” If Won exercised his right to refuse, he would be committing a crime. Under these circumstances, this is a form of coercion that undermines the consent exception to the warrant requirement. And so the breath test results should have been suppressed.

Justice Wilson’s Concurrence. Justice Wilson agreed with the majority’s analysis regarding the warrant issue. He wrote separately to opine that this was a good time to consider the constitutionality of the refusal offense—HRS § 291E-68. In his view, it was an unconstitutional infringement on a defendant’s right to “withdraw” or not consent to a search of his person. “The constitutional infirmity of HRS § 291E-68 is more evident in its prosecution of a citizen who, unlike Won, does not consent and instead exercises his or her constitutionally endowed right to the protection of a warrant before the search of his or her blood, breath, or urine. In such a situation, an individual wholly innocent of driving under the influence may be culpable as a criminal misdemeanant merely by refusing to consent to a BAC test without a warrant.” Justice Wilson was ready and willing to declare the statute unconstitutional.

Justice Nakayama’s Dissent. Justice Nakayama dissented and would have held that the legislature properly exercised its authority in criminalizing the refusal to take a test. She wrote that the majority has basically declared HRS § 291E-68 unconstitutional without really declaring it so. She disagreed with the analysis and believed that the statute was constitutional. Her analysis did not hinge on the Fourth Amendment so much as it hinged on whether the Legislature had the right to criminalize refusing to take a test. She found the government’s objective to be sound and would have upheld it. Chief Justice Recktenwald joined her.

In essence, the difference between the majority and the dissenters came to a matter of viewpoint. For Justice Nakayama, the question was whether the Legislature had the power to criminalize refusing to take a test. She applied a balancing test and would have upheld it. For the majority, they took the view from the individual’s point of view and examined it from a personal-liberties standpoint.

It Doesn’t End Here . . . For some time now, folks in the DUI business have been, pardon the pun, holding their breaths for this opinion. In addition to the warrant issue, Won raised other constitutional problems related to Miranda and the constitutionality of HRS § 291E-68 itself. The majority declined to review these issues and left them on the table for future cases. The constitutionality of the refusal crime is an open question. Won was never prosecuted for refusing. Perhaps we will have to wait for somebody to bring that challenge (or perhaps the Legislature will repeal it). I guess we will have to wait on baited breath to see what happens next.         

Tuesday, November 24, 2015

Lost Wages are Compensable Under the Restitution Statute.

State v. DeMello (HSC November 2, 2015)
Background. Lawrence DeMello was charged with harassment and trespassing. He was found guilty after a bench trial. At trial, the complainant testified about an altercation he had with DeMello. Subsequently, the District Court held two evidentiary hearings on restitution claims. Again, the complainant testified about the altercation and included testimony about experiencing chronic pain, blurred vision, and having difficulty standing. She also testified that because of these injuries, she missed work as a hairdresser for ten days. She claimed lost wages in the amount of $1,155.12. DeMello argued that the lost wages were not part of the criminal restitution claim. The district court disagreed and ordered the lost wages as restitution. DeMello appealed the ICA vacated the order and held that lost wages were not compensable. The State petitioned the HSC.

Restitution and Lost Wages. “The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim.” HRS § 706-646(2). Restitution shall be “a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to: (a) Full value of stolen or damaged property . . . ; (b) Medical expenses; and (c) Funeral and burial expenses incurred as a result of the crime.” HRS § 706-646(3).

The Plain Language Rules: Lost Wages are Covered by Restitution Statute. The HSC here had to interpret the statute to see if this included lost wages. It started with the plain language of the statute. “Courts are bound, if rational and practicable, to give effect to all parts of a statute and no clause, sentence or word shall be construed as superfluous, void or insignificant if construction can be legitimately found which will give force to and preserve all words of the statute.” Dawes v. First Ins. Co. of Hawaii, Ltd., 77 Hawaii 117, 135, 883 P.2d 38, 56 (1994).

In examining the plain language of the restitution statute, the HSC held that the losses by the victim must be (1) reasonable, (2) verified, (3) suffered as a result of the defendant’s conduct, and (4) requested by the victim. This does not exclude lost wages. Such an interpretation, according to the HSC, “harmonizes” with HRS § 706-646(3), which calls for an amount “sufficient to reimburse any victim fully for” the losses. Moreover, the list subsection (3) is an “inclusive list” that does not foreclose the possibility of other kinds of losses. See, e.g., State v. Mita, 124 Hawaii 385, 391, 245 P.3d 458, 464 (2010) (phrase “shall include but not limited to” is an “inclusive, rather than exclusive, list of examples”). And so the HSC held that the statute includes reasonable, verifiable, and requested lost wages that were caused by the defendant’s conduct.

Legislative History Notwithstanding. The crux of the issue came from the legislative history. Courts “do not resort to legislative history to cloud a statutory text that is clear.” State v. Kalama, 94 Hawaii 60, 64, 8 P.3d 1224, 1228 (2000). According to the HSC, it has “repeatedly declined to rely on legislative history where the plain language did not produce an absurd result[.]”

In this case, the HSC examined the legislative history of the restitution statute. The statute was promulgated in 1998. At that time, various committees in the Legislature debated the inclusion of “therapy and wage loss,” but it ultimately did not make it into the final version. Later, the statute was amended in 2006 to its current form. There was no express discussion on wage loss, but there was the general intent to have a defendant fully compensate victims for their losses. According to the HSC, “whatever the 1998 Legislature may have said, in accordance with the clear language of the statute as of 2006, reasonable and verified lost wages are to be included in a restitution award.”

Justice Pollack’s Dissent. Justice Pollack disagreed with the majority’s interpretation of the statute. For him, “it is apparent that the legislature intended to limit the types of financial injuries that are compensable under the statute.” And because it was not clear if lost wages are covered, it was necessary to resort of legislative history.

Justice Pollack wrote that the legislative history showed that the legislature intended to exclude lost wages. Moreover, the rule of lenity supports the exclusion of lost wages. Because the majority’s decision “broadens the statute’s coverage well beyond its understood application by courts and practitioners for nearly twenty years and in a manner that is manifestly contrary to the legislature’s intent,” he dissented and would have affirmed the ICA. Judge Perkins, who sat by reason of a vacancy, joined.

 So What Now? The HSC has held that the Legislature’s statute included wage losses—despite evidence in the legislative history that it should not be included. The dissenters argued that that is not what the Legislature intended. And so the HSC has moved the ball into the court of the Legislature. Does the Legislature want to amend the statute to “fix” the ruling? Is that the true intent? Perhaps. In a weird way this is how democracy works.

Thursday, September 24, 2015

Traffic Infractions Do not Bar Subsequent Prosecutions

Traffic Infractions Do not Bar Subsequent Prosecutions
State v. Kalua (ICA September 2, 2015)
Background. Manaiakalani Kalua received two citations: one for excessive speeding in violation of HRS § 291C-105(a)(1) and one for regular-kine speeding in violation of HRS § 291C-102(a)(1). Excessive speeding means the vehicle is going either 80 mph or more or the vehicle is in excess of 30 mph of the speed limit.

The two charges are based on two separate incidents. In the notice of traffic infraction, Officer T. Koyanagi measured Kalua’s speed by radar and stated that he was going 71 mph in a 55-mph zone and that Officer Koyanagi tried to stop him as the speed limit dropped to 40 mph. In that zone, Officer Koyanagi cited Kalua for going 73 mph, which formed the basis for the excessive speeding.

For the regular-kine speeding, Kalua had to answer the citation within 21 calendar days or the court would enter a default judgment. He paid the speeding ticket and the default judgment. Regular speeding is not a crime, but a traffic infraction. Excessive speeding, which is a criminal offense, required an appearance in court and the citation included a summons to the District Court.

Kalua did not answer the regular-kine speeding and a default judgment was entered. He also did not appear at court and a bench warrant was issued. Subsequently, Kalua appeared in the District Court after the warrant had been served. Kalua then filed a motion to dismiss the excessive speeding charge on the grounds that he had already paid the traffic infraction and could not be subsequently prosecuted for the same or similar conduct. The district court granted the motion. The State appealed.

Penal Code Prohibits Repetitive Prosecutions . . . The “defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.” HRS § 701-109(2). The statute is “designed to prevent the State from harassing a defendant with successive prosecutions where the State is dissatisfied with the punishment previously ordered or where the State has failed to convict the defendant.” State v. Servantes, 35, 38, 804 P.2d 1347, 1348 (1991).

. . . but the Traffic Code Exception. On the other hand, there’s an exception to this statute in the Traffic Code. De-criminalized traffic infractions are outside the Hawaii Penal Code and traffic infractions are adjudicated pursuant to HRS Chapter 291D. “In no event shall section 701-109 preclude prosecution for a related criminal offense where a traffic infraction committed in the same course of conduct has been adjudicated pursuant to this chapter.” HRS § 291D-3(d). According to the ICA, this statute is intended to ensure that the “procedures established for the expeditious and streamlined adjudication of non-criminal traffic infractions will no jeopardize or adversely affect the State’s ability to pursue prosecutions of crimes related to the non-criminal traffic infractions.”

The ICA held that the plain language of HRS § 291D-3(d) allows the prosecution for the criminal offense of excessive speeding to proceed even though Kalua paid his traffic ticket arising out of the same episode.

Harmonizing Fitzwater. In doing so, the ICA also rejected the District Court’s conclusion that State v. Fitzwater, 122 Hawaii 354, 227 P.3d 520 (2010), changed the way it should interpret HRS § 291D-3(d). Regular-kine speeding is considered a lesser-included “offense” to excessive speeding. State v. Fitzwater, 122 Hawaii at 357, 227 P.3d at 523. The ICA simply held that it didn’t matter if regular-kine speeding was included with excessive speeding. It does not bar the prosecution from bringing the excessive speeding charge.

Double Jeopardy isn’t at Issue Either. The ICA also examined wither the excessive-speeding prosecution violated the Double Jeopardy clauses. U.S. Const. Am. V and Haw. Const. Art. I, Sec. 10 (no person “shall . . . be subject for the same offense to be twice put in jeopardy”). Double Jeopardy protects defendants from “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Higa, 79 Hawaii 1, 5, 897 P.2d 928, 932 (1995). Relying on almost exclusively federal precedent, the ICA stated that it was “well-settled that the double jeopardy protections against successive prosecutions and multiple punishments only prohibit successive criminal prosecutions and multiple criminal punishments for the same offense. Helvering v. Mitchell, 303 U.S. 391, 399 (1938); Hudson v. United States, 522 U.S. 93, 99 (1997); Purcell v. United States, 594 A.2d 527, 529 (D. C. Ct. App. 1991).

When a Civil Penalty Becomes a Criminal Punishment . . . Based on that, the ICA held that if the regular-kine speeding infraction was civil in nature and not a criminal offense, then the Double Jeopardy clauses would not apply. To determine whether a statute and its punishment are civil or criminal requires an analysis. Even when the statute is not labelled as a criminal punishment and even when there is no jail involved, the court must still determine if “the statutory scheme was so punitive either in purpose or effect as to negate [the Legislature’s] intention” to keep it a non-criminal infraction. Tause v. State Dept. of Labor and Indus. Rel., 113 Hawaii 1, 31, 147 P.3d 785, 815 (2006).

The determination is based on seven factors: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been historically regarded as a punishment (as opposed to a civil infraction); (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned Id. at 32, 147 P.3d at 816.

According to the ICA the “sanctions” for regular speeding are not so punitive that it would transform the civil remedy intended by the Legislature into a criminal punishment. Speeding sanctions are primarily monetary. HRS §§ 291D-3 and 9, HRS § 291C-102 and 161. And so because they are not criminal penalties, Double Jeopardy is not at issue and is not affected by the subsequent prosecution. The dismissal order was vacated and the case remanded back to the District Court.


The Fitzwater Problem in Kalua’s Case. The ICA remanded the case back to the District Court. An interesting problem could play out. If regular speeding is a lesser-included offense, and if Kalua had already paid his ticket for the regular speeding, what would happen if the prosecution failed to prove the excessive speeding, but could prove the regular speeding? What happened to the Double Jeopardy analysis then? Would it merge with an already-paid traffic offense? Wouldn’t the District Court have to dismiss the excessive speeding charge all over again and not impose a new fine? Wouldn’t we back at the same place? Perhaps all will be revealed after remand.

Ditching your Attorney is Tougher than it Seems

State v. Phua (HSC June 30, 2015)
Background. Han Kamakani Phua was arrested and charged with harassment after the complainant and others came onto his property and Phua got into a non-violent quarrel with them. Phua appeared in the District Court of the Third Circuit with his lawyer and a Mandarin interpreter. He entered a not guilty plea demanded a trial. At the trial date, the interpreter didn’t show up so Phua requested a continuance. The prosecution objected and presented two witnesses. The witnesses testified that Phua could speak, understand, and communicate in the English language when he worked as a stock boy at Walmart and after he had been arrested. Phua’s witnesses testified that although he could speak English, the language is not his first language (Malay and Chinese are). He had a hard time with legal documents and legal principles. Judge Joseph Florendo of the District Court denied the motion.

At the end of the trial, the court found Phua guilty as charged, granted counsel’s request for a pre-sentence investigation report, and scheduled a sentencing hearing. Days before sentencing, Phua filed pro se a “Motion to Amend/Writ of Error” seeking the removal of the case to federal court as a civil matter. Following the pleading came a Declaration of Phua’s Counsel in which counsel stated that he was unavailable for the sentencing hearing due to another matter in Hilo, but filed the Declaration of Counsel instead of a motion to continue because Phua insisted that he attend the hearing without his lawyer. Counsel presented two options for the court and Phua: if Phua wanted to proceed with counsel, please consider this a motion to continue. If he did not, then please refer to the PSI. Counsel recommended no jail and presented a sentencing argument. Counsel finally noted that he did not receive the PSI from probation despite his request to have it faxed to him.

At the hearing, Phua appeared without his lawyer. The district court did not make any reference to the declaration of counsel. The sentencing hearing was not noted as a possible motion to continue. Instead, the district court asked Phua if he wanted to proceed without his lawyer. Phua responded that he “let my attorney go, and that’s why I have filed this document right in front of me that I have submitted to the Court.” The court asked Phua if he fired his attorney and Phua said yes. The Court asked again if Phua wanted to proceed without any lawyer and represent himself. The Court told him that if he could not afford an attorney one would be appointed for him. Phua said he was unaware of that, but still wished to proceed pro se. The Court engaged in a colloquy about his age, his education, and his understanding of certain rights.

At the sentencing, there was no mention if Phua received the PSI. When the prosecutor referred to the recommendation in the PSI, Phua objected and “moved to strike” the statement. The court asked if Phua had anything to say and Phua made a statement saying that he was moving to “amend slash writ of error” related to civil cases, sovereign rights, and that only the United States District Court has jurisdiction over him. The district court denied the motion and sentenced him to jail for five days and probation for six months. Phua appealed and the ICA affirmed.

The Right to Counsel Extends to Sentencing. It is well-established that the State and federal constitutions guarantee the right to counsel at sentencing. State v. Pitts, 131 Hawaii 537, 544, 319 P.3d 456, 460-61 (2014). When a defendant wants to represent himself pro se, the trial court must offer counsel and proof on the record that the defendant “voluntarily, knowingly, and intelligently rejected the offer and waived that right.” State v. Dickson, 4 Haw. App. 614, 619, 673 P.2d 1036, 1041 (1983).

Waiving the Right to Counsel and Going Pro Se: A How-To. The HSC adopted the Dickson analysis in determining if the trial court properly waived the right to counsel. The waiver inquiry is divided into three “areas”: (1) the particular facts and circumstances relating to the defendant that indicate the defendant’s level of comprehension; (2) the defendant’s awareness of the risks of self-representation; and (3) the defendant’s awareness of the disadvantages of self-representation. Id. at 619-620, 673 P.2d at 1041-42. According to the HSC, the trial court must first examine the facts and circumstances particular to the defendant to assess his or her level of comprehension. Once that’s done, the trial court can tailor its colloquy to ensure that it adequately covers the other two factors.

First Factor: Background and Comprehension of Defendant. Once the defendant expresses an interest in going pro se, the court should inquire about certain facts that will assist the court in determining the defendant’s level of comprehension. This would include facts like the defendant’s age, education, English language skills, mental capacity, employment background, and prior experience with the criminal justice system.

Here, the HSC held that the district court’s inquiry was “limited.” Although the court questioned Phua about his age and whether he attended high school, other information presented to the court suggested that further inquiry was necessary. Phua’s mother had testified at trial that he was a “special education” student, that he did not pass any elementary grade levels after the first grade, and repeated the sixth grade three times. The court was also on notice that Phua may have had trouble with the English language because it was his second language. A “language barrier” is a “salient factor” putting the court on notice that the defendant’s waiver may be less than knowing and intelligent. State v. Gomez-Lobato, 130 Hawaii 465, 471, 312 P.3d 897, 903 (2013). Finally, Phua had no prior experience with the criminal justice system—he had no prior record.

Second Factor: Risks of Self-Representation. Once the first factor has been analyzed, the court moves on to the second and third factors. Under the second factor, the court must alert the defendant to things like “the nature of the charge, the elements of the offense, the pleas and defenses available, the punishments which may be imposed, and all other facts essential to a broad understanding of the whole matter.” Dickson, 4 Haw. App. at 619-20, 673 P.2d at 1041. Here, the district court did not properly assess the second factor. According to the HSC, the district court failed to apprise Phua, who had little to no understanding of the criminal justice system, about the potential punishments that may be imposed.

The Third Factor: Disadvantages of Self-Representation. As for the third and final facto, the HSC noted that Dickson cautioned trial courts about informing defendants about the disadvantages of self-representation:

The trial court should inform the defendant: of his right to counsel, whether private or appointed; that self-representation is detrimental to himself; that he will be required to follow all technical rules and substantive, procedural, and evidentiary law; that the prosecution will be represented by able counsel; that a disruption of the trial could lead to vacation of the right to self-representation; that if voluntary self-representation occurs, the defendant may not afterward claim that he had inadequate self-representation.

Id. at 620, 673 P.2d at 1041-42.

Again, the HSC found that the colloquy in this case did not do enough. It did not adequately show that Phua was informed about the disadvantages of self-representation. It was not enough to have the district court simply ask Phua a series of yes-no questions without providing him an opportunity to express confusion or ask questions.

No Waiver and a Pre-Sentence Allocution Reminder. In addition to the Dickson analysis, the HSC held that Phua’s waiver of his right to counsel was critically deficient. The HSC noted that the district court’s failure to apprise Phua of the range of allowable punishment was enough to render the wavier invalid.

Lastly, the HSC noted that because it was going to remand for re-sentencing, it need not address the other issue on appeal: Phua’s right to address the court prior to sentencing. Nonetheless, the HSC took the time to remind courts that allowing the defendant to address the court prior to his or her sentencing is “essential to fair treatment.” State v. Chow, 77 Hawaii 241, 246-47, 883 P.2d 663, 668-69 (App. 1994).

Justice Nakayama’s Dissent and Concurrence. Justice Nakayama wrote separately. She agreed with the majority that Phua’s waiver was deficient because it was not knowing or intelligently done. She disagreed, however, with the majority’s analysis of the district court’s colloquy. Justice Nakayama wrote that the district court had done enough to determine that Phua knew what he was doing when he decided to proceed pro se. She pointed out that the district court asked Phua more than once if he understood that he had the right to an attorney and that Phua acknowledged this right even though he said that he was unaware of the right up until that point. As for inquiring into Phua’s background, Justice Nakayama believed that the district court had again done enough. Phua told the court that he was 31 and had a high school education. There was evidence that he worked at Wal-Mart and spoke English to his co-workers and customers there. And even though it would have been “ideal for the district court to reestablish all of this information on the record,” it is not—according to Justice Nakayama—constitutionally required. Judge Dean Ochiai, who stood in place of Justice Acoba, joined.

Thursday, July 30, 2015

Prosecutor's Office can Represent the State in Bail Forfeiture Proceedings

State v. Miles (ICA June 23, 2015)
Background. Robert Miles was charged with felony offenses. His bail bond company, Exodus Bail Bonds, posted bail on his behalf in the amount of $5,000. Miles pleaded guilty, but did not show up for his sentencing hearing. The circuit court issued a bail forfeiture judgment on October 8, 2012. On November 21, 2012, the prosecuting attorney’s office sent a letter to Exodus notifying it that the bail forfeiture judgment had been filed. Exodus filed a motion to set aside the forfeiture on the grounds that Miles had surrendered. The circuit court wanted more proof of the actual surrendering and denied the motion without prejudice. No additional proof was presented to the court and the motion to set aside remained denied. Exodus appealed.

The Prosecutor has Standing to Represent the State at a Bail Forfeiture Hearing. A surety may obtain relief from a bail forfeiture judgment “upon good cause shown why execution should not issue[.]” HRS § 804-51. Absent a good cause, the bond must be forfeited. State v. Vaimili, 131 Hawaii 9, 17, 313 P.3d 698, 706 (2013). Here, Exodus does not challenge the lack-of-good-cause finding by the circuit court. Instead, it argued that the prosecutor had no place at the hearing on its motion to set aside forfeiture.

The Prosecutor’s Source of Power. The office of the prosecuting attorney is indeed a county office, but each county has “the power to provide by charter for the prosecution of all offenses and to prosecute for offenses against the laws of the State under the authority of the attorney general of the State[.]” HRS § 46-1.5(17). The City and County of Honolulu exercised that power and established the office of the prosecuting attorney. The prosecutor’s office has the power to “[a]ttend all courts in the city and conduct, on behalf of the people, all prosecutions therein for offenses against the laws of the state and ordinances and rules and regulations of the city[.]” Rev. Charter of the City and County of Honolulu § 8-104.


Bail-Bond Forfeiture Proceedings are part of the Criminal Case. The ICA rejected Exodus’ argument that the bail bond proceedings were civil in nature and that the prosecutor’s office could not represent the State. The ICA noted that HRS § 804-5 establishes forfeiture proceedings in a “criminal cause.” Moreover, the legislative history of the provision strongly suggested to the ICA that the prosecutor’s office has a place in bail bond forfeiture proceedings. And so the ICA affirmed the order denying Exodus’ motion to set aside the bail forfeiture judgment.

A Trial Court's Duty to See if the Jury was Under the Influence

State v. Chin (HSC June 25, 2015)
Background. Susan Chin was indicted with theft in the first degree, attempted theft in the first degree, and money laundering. Chin was the caretaker for the complainant, and the charges alleged that Chin took the proceeds from the sale of the complainant’s home, use of the complainant’s annuities and monies, and other benefits. Chin had a jury trial. In the middle of the trial, the prosecution’s witness, Charles Bowen, testified. The jury found Chin guilty of some, but not all charges.

Chin filed a motion for a new trial and included a declaration of Bowen. Bowen was the complainant’s neighbor who provided evidence for the prosecution. Bowen testified that he had a job with the U.S. government and had a security clearance. In the middle of the trial, a juror approached him in the bathroom. The juror did not say he was a juror, but handed him a business card. The card appeared to indicate that the person was a retired United States Navy service member. The person ended up being the foreperson on the jury.

The motion was denied and Chin was sentenced to prison for up to ten years and more than half a million dollars in restitution. Chin appealed and the ICA affirmed.

The Right to a Fair and Impartial Jury and the Williamson Two-Step. The defendant has a constitutional right to a fair and impartial jury in a criminal case. State v. Pokini, 55 Haw. 640, 641, 526 P.2d 94, 99 (1974). The defendant must first make a prima facie showing that a deprivation that “could substantially prejudice [his or her] right to a fair trial” by an impartial jury took place. State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991). Once made, the “rebuttable presumption of prejudice is raised.” Id. This Williamson test focuses first on the general nature of the outside influence and whether it “could” substantially prejudice the defendant. If it does, then the rebuttable presumption comes into play and the trial court is obligated to investigate.  Id.

According to the HSC, the trial judge (Judge Ahn) and the ICA wrongly applied the test. All that was required of the defendant was a prima facie showing that the outside influence “could” have substantially prejudiced the right to a fair trial. The circuit court and the ICA, however, raised the defendant’s burden to showing actual prejudice. The HSC made it very clear that once the defendant makes a showing that the outside influence could have substantially prejudiced the right to a fair trial, the trial court is obligated to investigate. That didn’t happen here.

Juror-Witness Contacts are an Outside Influence. The HSC then applied the test to Chin’s case. It focused on the nature of the alleged outside influence—the contact between a juror and a witness. Relying on precedent from the HSC and the US Supreme Court, the HSC held that “any contact or private communication, unless trivial, during trial between a juror and a witness represents an outside influence of a nature that could substantially prejudice a defendant’s right to a fair trial.” See Mattox v. United States, 146 U.S. 140, 150 (1892); Remmer v. United States, 347 U.S. 227, 229 (1954); State v. Pokini, 55 Haw. 640, 656, 526 P.2d 94, 108 (1974); State v. Messamore, 2 Haw. App. 643, 652, 639 P.2d 413, 420 (1982) abrogated on other grounds in State v. Moore, 82 Hawaii 202, 921 P.2d 122 (1996).

In a footnote, the HSC expanded on the word “trivial.” “A court may find that brief salutations, such as good morning or good afternoon, are trivial when there are no circumstances present indicating that the communication was anything other than benign.”

The communication in this case was not trivial. The trial court had enough evidence that the contact between Bowen and the juror could have substantially prejudiced Chin’s right to a trial. She met her burden triggering the court’s duty to investigate.

The Court’s Obligation to Investigate the Matter. Once the defendant meets his or her burden, the trial court is obligated to “further investigate the totality of circumstances surrounding the outside influence to determine its impact on jury impartiality.” Williamson, 72 Haw. at 102, 807 P.2d at 596. The investigation includes an “individual examination of potentially tainted jurors, outside the presence of the other jurors, to determine the influence, if any, of the extraneous matters.” Id. The court must investigate to determine if the outside influence was harmless or not. Messamore, 2 Haw. App. at 652, 639 P.2d at 420.

After the investigation, the burden falls onto the prosecution to show that the outside influence on the jury was harmless beyond a reasonable doubt. Williamson, 72 Haw. at 102, 807 P.2d at 596.


The Remedy. The trial court failed to investigate the matter and there is no way to determine if Chin’s fundamental right to a fair trial by an impartial jury had been compromised or not. Based on that impossibility, the HSC not only vacated the judgment, it remanded for a new trial. In other words, the trial court was not given the opportunity to investigate. The presumption of prejudice prevailed and a new trial was ordered.

Tuesday, June 23, 2015

The Right to Counsel of Choice is Strong Enough to Outweigh a Jury that’s Ready to Go.

State v. Reed (HSC June 17, 2015)
Background. Ikaika Reed was charged with assault in the first degree. The allegation stems from an incident at the Waianae Boat Harbor, where during the early morning hours, Reed punched a guy in the face while holding the knife and caused a laceration across the guy’s face from “the tip of his ear to the tip of his nose.” If convicted, he was looking at a ten-year prison term with a mandatory minimum of three years and four months.

Shortly after his arraignment, the Office of the Public Defender was appointed to represent him. Twenty-seven days after the appointment, the public defender moved to continue trial because he had not received a copy of the grand jury proceedings. Trial was continued. About a week before trial, Reed moved to continue again. The motion was continued briefly. Five days before the trial date, Reed told the court that he was looking for retained counsel and requested more time. The prosecution did not object, but the circuit court denied the motion.

On the day of trial, Reed appeared with privately retained counsel and renewed his request for a continuance. The public defender moved to withdraw. Reed’s retained counsel explained that if the continuance was granted, he would be able to represent Reed at trial. The circuit court nonetheless found Reed’s request “dilatory” and denied the continuance and the public defender’s motion to withdraw.

After a two-day trial, the jury found Reed guilty. The circuit court sentenced Reed to ten years prison with the mandatory minimum of three years and four months. Reed appealed and the ICA affirmed.

Your Constitutional Right to the Lawyer of your Choice. The Sixth Amendment to the U.S. Constitution and Article 1, Section 14 of the Hawaii Constitution includes “the right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 179-80, 19 P.3d 1289, 1291-92 (2001). The right to retained counsel is so important that deprivation of it results in “structural error.” State v. Cramer, 129 Hawaii 296, 303, 299 P.3d 756, 763 (2013). A structural error affects the structure in which the trial took place, not the trial process itself. State v. Ortiz, 91 Hawaii 181, 193, 981 P.2d 1127, 1139 (1999). And so structural errors are not subject to harmless review. The HSC noted that inherent in the right to retained counsel is the fact that that the accused “should have confidence and trust in his or her counsel, and accordingly, in the judicial system as a whole.”

The Maddagan-Cramer-(and now)-Reed Balancing Test. Like all rights, the right to retained counsel is not absolute. When the court considers a motion to withdraw and substitute counsel, the trial court must give “[d]ue regard” to the defendant’s right to counsel of choice and “countervailing considerations.” Maddagan, 95 Hawaii at 180, 19 P.3d at 1292. The HSC pointed out that in Cramer there were cases from other jurisdictions that had identified a host of factors to determine. In Cramer, however, the trial court only considered the timeliness of the request and failed to address other factors. Id. at 302, 299 P.3d at 762. The HSC held that this case is extremely similar. Every request for a continuance in the case was justified and there was insufficient grounds to deny the motion to withdraw. The prompt administration of justice was simply not enough to justify the circuit court’s denial. And because this was a structural error, no harmlessness needed to be proved. The judgment was vacated and remanded for a new trial.

Sending a Letter Bound for the HPA is not “Remaining Silent” at the HPA.

State v. Garcia (HSC June 15, 2015)
Background. Eddie Garcia was charged with one count of continuous sexual assault of a minor under the age of fourteen years, a Class A felony, and one count of abuse of family household member. He pleaded not guilty and prepared for trial. After the pre-trial voluntariness hearing, Mr. Garcia reached a plea agreement with the prosecution. Mr. Garcia agreed to plead no contest to both counts and agree to 20 years prison concurrent (he wouldn’t have to do 21 years). The prosecution agreed to “remain silent at the minimum term hearing” in front of the Hawaii Paroling Authority.

Before sentencing, Garcia’s family and friends submitted to the pre-sentence investigator letters of support of him. His daughter also wrote a letter asking the Court to lessen his sentence because her mother was struggling without him. The prosecution also submitted a letter and three exhibits. The letter pointed out “some aggravating factors” even though it simultaneously recognized that Garcia’s sentence had already been determined pursuant to the plea agreement. The letter drew attention to the facts underlying the case and the attached exhibits included evidence that was never part of the PSI report, including a transcribed confession by Garcia to the police. The letter drew conclusions from the material by arguing that Garcia has tried to avoid taking responsibility for “his aberrant and sexually predator actions.” The letter also called him a “master manipulator.” Finally, the letter summed up that there should be no factors in favor of withholding imprisonment.

Garcia moved to withdraw his no-contest plea on the grounds that the prosecutor breached her agreement. At the hearing on the motion, the family court, concluded that the prosecutor did not breach the agreement because the PSI had not yet gone to the HPA. The family court—over Garcia’s objection (he wanted to withdraw the plea entirely)—denied the motion, but ordered the old PSI stricken and ordered a new PSI. This time the new PSI did not contain the prosecutor’s letter and attachments. At sentencing the family court sentenced him to 20 years. Garcia appealed and the ICA affirmed. Garcia applied for a writ of cert.

The Two Standards in Evaluating a Motion to Withdraw a Plea. How the court evaluates the withdrawal of a no-contest or guilty plea depends on when the request was made.

Where the request is made after sentence has been imposed, the “manifest injustice” standard is to be applied. But where the motion is presented to the trial court before the imposition of the sentence, a more liberal approach is to be taken, and the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice.

State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 522-23 (1978). See also Hawaii Rules of Penal Procedure Rule 32(d). Here, Garcia moved to withdraw the plea before sentencing. That means, according to the HSC, that the issue was whether the prosecutor’s conduct was a fair and just reason for requesting the plea and whether the prosecution relied on the plea to its substantial prejudice.

Submitting a Letter Bound to the HPA was a “Fair and Just” Reason to Get out of the No-Contest Plea. “It is well settled that the terms of a plea agreement, which serve as the inducement for entering a plea, must be fulfilled.” State v. Adams, 76 Haw. 408, 414, 879 P.2d 513, 519 (1994). When the parties enter a plea agreement, “the liberty of the defendant, . . . the honor of the government, public confident in the fair administration of justice, and the efficient administration of justice” are all at stake. People v. Sanders, 191 Cal. App. 3d 79, 87 (Cal. Ct. App. 1987).

According to the HSC, the prosecutor’s sending of the letter and exhibits was “inconsistent” with the prosecution’s promise to “remain silent at the minimum term hearing” before the HPA. Even though the prosecutor knew that Garcia would be sentenced to twenty years and even though the letter would eventually be received by the HPA, the prosecutor submitted it. The letter was more than a factual rehashing of the offense, it also “drew conclusions from this factual information and presented argument attacking Garcia’s character.”

The Family Court’s Intervention Could not Save the No-Contest Plea. The HSC expressly noted that the family court’s effort to prevent the HPA from reaching the letter was not enough. “Although the family court’s intervention protected Garcia from being prejudiced at the HPA, it could not undo the impact on Garcia’s perception of the integrity of the system and the trustworthiness of the government and his own counsel.”

The HSC appeared to be deeply concerned about the loss of confidence and trust that accompanies a breached plea agreement. The HSC noted that “if the integrity of plea agreements is not enforced, defendants may lose trust and confidence in the defense counsel who recommended the plea agreement. This outcome would directly undercut the attorney-client relationship.” See State v. Gaylord, 78 Hawaii 127, 141, 890 P.2d 1167, 1181 (1995) (“the attorney-client relationship requires ‘the highest degree of trust and confidence.’”).

Editor’s Note. In the interest of full disclosure, I represented Mr. Garcia before the ICA and the HSC.

Thursday, June 18, 2015

Huge Landowners Can’t have a 1,000-Acre “Residence, Including Yard.”

State v. Guyton (HSC June 8, 2015)
Background. John Varel got a restraining order and later an injunction against Evans Guyton. The order prohibited Guyton from “[e]ntering or visiting [Varel’s] residence, including yard and garage.” Varel lives on a 1,000-acre property out in Waihee on Maui.  Guyton was later charged with violating a restraining order or injunction. HRS § 604-10.5(h). Specifically, the complaint alleged that Guyton of “entering and/or visiting the premises including yard and garage of the residence, and/or place of employment.”

At his trial, Varel described his vast property, including a macadamia nut farm, conservation lands, and his residence. The property starts at the highway and goes all the way up the mountains to the watershed. He testified that he never gave anyone permission to dirt bike on the property. Todd Arnold testified that he was hiking on the Varel property when he saw Guyton riding his dirt bike with others along the ridges near the outer parts of the property. Arnold testified that he knew that they were on the Varel property because he knows where the ridge lines are and that Varel pointed out to him the edge of his property. Varel was recalled to the stand and corroborated Arnold. Guyton then testified and acknowledged that Varel’s property is off limits. The district court found Guyton guilty and fined him $500. Guyton appealed. The ICA affirmed.

How to Construe an Injunction Order. Before punishing a person for violating an injunction order, the order must be so “clear and unambiguous” that a person of ordinary intelligence can “ascertain from the four corners of the order precisely what acts are forbidden.” LeMay v. Leander, 92 Hawaii 614, 625, 994 P.2d 546, 557 (2000).
The issue in this case centered around the injunction order prohibiting Guyton from entering Varel’s “residence, including yard.” According to the HSC, that language is clear and unambiguous. The words must “be taken in their ordinary and familiar signification, and regard is to be had to their general and popular use.” In re Taxes of Johnson, 44 Haw. 519, 530, 356 P.2d 1028, 1034 (1960). Courts may “resort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms not statutorily defined.” State v. Pali, 129 Hawaii 363, 370, 300 P.3d 1022, 1029 (2013).

“Residence, Including Yard” Doesn’t Cover a 1,000-Acre Property. Turning to the Oxford English Dictionary, the HSC examined the words “residence” and “yard.” “Residence” means a person’s home, the place where someone lives; “yard” is a piece of ground adjoining a building or house. And so based on this, the HSC held that the “residence, including yard” encompassed the house where Varel lives and the adjacent area surrounding it. Interpreting the injunction order so that the entire 1,000-acre property constitutes “residence, including yard” would run afoul with the plain and ordinary meaning of the words. And so the district court and the ICA erred in interpreting the injunction order so expansively.

Even if the Words were Ambiguous, Lenity Would Favor the Defendant. The HSC then went on to examine what would happen if the words were ambiguous. “Where a criminal statute is ambiguous . . . the statute must be strictly construed against the government and in favor of the accused.” State v. Shimabukuro, 100 Hawaii 324, 327, 60 P.3d 274, 277 (2002). So even if the rule of lenity applied, the order must be construed so that it cannot include the outliers of the Varel property. The HSC reversed the judgment because there was insufficient evidence that Varel had actually violated the injunction order.

Wednesday, May 13, 2015

ICA: We Mean it When we Say Exigency

State v. Ramos-Saunders (ICA April 23, 2015)
Background. Koalaukani Ramos-Saunders was indicted with commercial promotion of marijuana in the first degree and unlawful use of drug paraphernalia. Ramos-Saunders moved to suppress all evidence resulting from a warrantless search of the residence.

One morning, the Honolulu Police Department received a “dropped 911 call” from a number registered to Walter Rosskopf listed at a housing unit—Unit B at an address off of Kamehameha Highway. Two officers went to the address and arrived to Unit B. There, they talked to a woman named Paula Burgess. She told them that he used to live in Unit B, but he moved to Unit A. She added that he had prostate cancer. The Units are two stand-alone residences separated by about 750 feet. The officers moved way from Unit B and went to Unit A. They found no one in Unit A.

As they walked around the residence the officers thought they saw the barrel of a firearm with a silencer. The residence was also in “disarray” with a glass sliding door open, the air-conditioner unit was running, and the lights were on. No one was there. The officers called for reinforcements. The officers decided to go into the residence without a warrant. Once inside they found an indoor grow operation. Somehow (the ICA does not explain it) Koalaukani Ramos-Saunders was linked to the operation. Ramos-Saunders moved to suppress the evidence found in the residence. The motion was granted by Judge Glenn J. Kim. The prosecution appealed.

Search and Seizure: the Basics (Since it’s been a while). “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. Am. IV. Article I, Section 7 of the Hawaii Constitution has a similar right, but it also includes protection against “unreasonable invasions of privacy.” When the government—like the police—enter a home without a warrant, the search inside is presumptively unreasonable. That means that “the prosecution has the burden of overcoming the initial presumption of unreasonableness by proving that the search falls within one of the well-recognized and narrowly-defined exceptions to the general warrant requirement.” State v. Lopez, 78 Hawaii 433, 443, 896 P.2d 889, 899 (1995).

The prosecution contended that the exigency exception justified the warrantless search, which allows the police to search when the prosecution can show “probable cause to search and exigent circumstances exist necessitating immediate police action.” State v. Pulse, 83 Hawaii 229, 245, 925 P.2d 797, 813 (1996).

How Exigent does it have to be? Pretty Exigent. Exigency arises when “the demands of the occasion reasonably call for an immediate police response. More specifically, it includes situations presenting an immediate danger to life or serious injury or an immediate threatened removal or destruction of evidence.” State v. Jenkins, 93 Hawaii 87, 103, 997 P.2d 13, 29 (2000).

The ICA rejected the prosecution’s exigency claim. The police received a drop call. When they arrived to the scene they learned that the phone number belonged to a man with prostate cancer had moved to Unit A. That was all. According to the ICA, there was no indication that anyone needed immediate police assistance. There was nothing to give the police anything to think that there was an immediate danger to life, limb, injury, or the destruction of evidence. Even when they saw that Unit A was in disarray and saw a gun there was no immediacy. No one was around. The ICA was very clear that the mere presence of a gun and a silencer did not create an exigent circumstance. See State v. Meyer, 78 Hawaii 308, 314, 893 P.2d 159, 163 (1995) (“no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’”). The ICA affirmed the suppression.

Turning Down the “Emergency Aid” Exception. In the process of rejecting the prosecution’s claim, the ICA declined an extension of the exigency exception. Federal courts interpreting the Fourth Amendment have recognized exigency when the demands of the situation reasonably call for an immediate police response; including those situations where a person requires emergency aid. Michigan v. Fisher, 558 U.S. 45, 48 (2009); Brigham City, Utah v. Stuart, 547 U.S. 398 (2006).

The ICA noted that Hawaii courts have never extended exigency that far. “Article I, section 7 of the Hawaii Constitution affords the people of this state greater protection than does the fourth amendment of the United States Constitution.” State v. Tuua, 98 Hawaii 426, 449, 49 P.3d 1227, 1250 (2002).

Thursday, April 23, 2015

Confrontation Clause Can’t Stop (Certain) Affidavits of Records Custodians

Background. Ubaldo Cruz was on trial for allegedly committing multiple sexual assaults on his neighbor’s daughter. At trial, Cruz objected to the admission of cell phone records over a three-month period. The circuit court denied the request, but ruled that a failure to call the custodian of records to testify at trial was a violation of Cruz’s constitutional right to confront witnesses. The next day, the prosecution sought to introduce the records with a certified copy of a declaration from the custodian of records on the grounds that they met the business records exception to the hearsay rule. The prosecutor argued that business records “are specifically excluded under Crawford.” The circuit court admitted the records, Cruz was found guilty. Cruz appealed.

The Confrontation Clause and Documents. The Confrontation Clause prohibits the use of “testimonial” statements at trial when the declarant is not present and there was no meaningful opportunity to testify. Crawford v. Washington, 541 U.S. 36, 51-52 (2004). A statement is “testimonial” when it was made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]” Id. The rule in Crawford applies to documents too.

The business-record exception to the hearsay rule does not trump the Confrontation Clause. Even when there is a regularly-produced document that would be made in the normal course of business, the Confrontation Clause would prohibit its use at trial if the business was producing evidence at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321-22 (2009). For example, certificates of analysis by scientists who determine whether a substance seized as evidence by the police is in fact a narcotic would be testimonial. Id.

But that doesn’t mean all records are prohibited. “Business and public records are generally admissible . . . not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Id. at 324.

The Confrontation Clause will not Prohibit Certain Affidavits from a Custodian of Records. The ICA held that the affidavit from the custodian of records at phone company was not barred by the Confrontation Clause. Here’s the affidavit:

            I, Dominick Kaserkie, hereby declare and affirm based on information and belief that the following is true and accurate to the best of my knowledge:
1.       I am employed at T-Mobile USA, Inc., in the Law Enforcement Relations Group.
2.      My duties include acting as a “custodian of records” on behalf of T-Mobile USA, Inc.
3.      I am authorized to represent T-Mobile USA, Inc., for purposes of this proceeding.
4.      T-Mobile USA, Inc. maintains records relating to T-Mobile USA, Inc. subscribers.
5.      These records include identifying information such as the name of the subscriber assigned to a specific telephone number and call logs for a subscriber’s telephone number documenting both incoming and outgoing calls made by a T-Mobile USA, Inc. subscriber.
6.      These records are made and kept in the regular course of business at T-Mobile USA, Inc.
7.      These records are generated at or near the time that a T-Mobile subscriber uses his cellular phone to make or receive telephone calls.
8.      These records are generated and maintained by employees of T-Mobile USA, Inc.
9.      As part of my job, I have access to, and custody of, these records.
10.   Pursuant to a subpoena, I retrieved true and accurate copies of T-Mobile subscriber information associated with MSISDN [Cruz’s cell number].
11.    T-Mobile USA, Inc. subsequently turned over a copy of these records to the Honolulu Prosecutor’s Office on January 14, 2010.
12.   The records provided to the Honolulu Prosecutor’s Office consist of a true and accurate copy of the records . . . .
13.   These records are kept in the course of regularly conducted activity at T-Mobile USA, Inc.; they are made at or near the time of the acts or events described therein; and they are made as part of the regular practice of T-Mobile USA, Inc.

The Difference Between T-Mobile and a Crime Lab. According to the ICA, this affidavit is not testimonial and the Confrontation Clause does not prohibit its admission. But if the test for a testimonial statement is looking to the circumstances and determining if it is reasonable to think that the statement would be used at trial, wouldn’t this be it? After all, this is a custom-made declaration from the custodian of records at the “Law Enforcement Relations Group” who turned over documents to the Honolulu Prosecutor’s Office. Perhaps the actual records—the call logs or the raw materials usually attached to these kinds of declarations—are not testimonial. But this statement suggests it was not part of the regular course of business. 

Wednesday, April 22, 2015

Fleshing out when you can use Preliminary Hearing Testimony at Trial

State v. Nofoa (HSC April 14, 2015)
Background. Toi Nofoa was charged with one count of kidnapping and one count of terroristc threatening in the second degree. In September 2008, Nofoa was held by a judicial determination of probable cause. Attached to the JDPC was an affidavit from an HPD officer that containing hearsay statements from the CW, Nofoa’s girlfriend. Nofoa had a preliminary hearing.

At the preliminary hearing, the CW testified that she was in a relationship with Nofoa for about two and half years, and she ended it. She testified that about a month after the breakup, Nofoa called and asked if she was “seeing another guy.” She said it was none of his business. That night Nofoa approached her as she was walking back to her car. The CW said that he wanted to talk to her and she started walking with him. She said he started to get aggressive and then pulled her. As she tried to walk away, he put her in a chokehold, said that he had a gun, and told her to get into the car. She did. They drove to the North Shore and stopped at a gas station in Haleiwa to buy alcohol. Nofoa went into the shop and the CW got out and whispered to a man working there to call the police for help. Nofoa saw her and picked her up and put her back in the car. The CW started yelling and screaming. The workers at the store told Nofoa to leave her alone and eventually he released her and he drove off. The police showed up ten minutes later. Nofoa’s counsel cross-examined the CW for about twenty-one pages on the transcript. The district court and the prosecutor did not interrupt the cross-examination. Nofoa was bound over.

About six months later, Nofoa was arrested and charged with the murder of CW. Nofoa took the murder case to trial and was acquitted.

The prosecution for the kidnapping and the TT1 followed the acquittal. Before trial, the prosecution filed a notice of intent to use the CW’s preliminary hearing testimony on the grounds that she was unavailable for trial. Nofoa opposed on the grounds that the hearing offered an insufficient opportunity to cross-examine the CW. Nofoa argued that at the time of the preliminary hearing, the discovery disclosures were incomplete. The prosecution had not disclosed a three-page written statement by the CW, a recorded interview of the CW, and a five-page police report with another statement of the CW. Nofoa did not have access to the 911 call made from the gas station either.  On top of that Nofoa argued that the purpose of the prelim is to determine probable cause, and it cannot be used at trial. The circuit court rejected Nofoa’s arguments and allowed the prosecution to use the testimony.

At trial, the court warned counsel that there would be no references to CW’s death. At the end of the trial, during his closing argument, Nofoa’s lawyer argued that it had to determine whether the CW or Nofoa was telling the truth. He told the jury that it could not find the CW credible because they know nothing about her:

[W]hat do we know about CW? What do we know about her credibility? Okay. We know what kind of car she drives. We know she got a new boyfriend a month after she broke up her . . . two and a half year, long-term relationship broke up. That’s about all we know.

Okay. Because you don’t know anything about her and her credibility, the only thing that you can do to judge her credibility is to compare her story to any other evidence presented in the trial. That’s the only thing you can do, because you didn’t get to see, hear, you know, like you did with [Nofoa].

The circuit court interrupted the argument and at a bench conference said that counsel had opened the door. The circuit court said that the remedy at that point was the inform the jury that the CW was dead. Over Nofoa’s objection and denying his request for a curative instruction, the circuit court allowed the prosecution to tell the jurors that the CW was dead during rebuttal. The prosecution did just that and then immediately alluded to the CW’s preliminary hearing testimony about Nofoa using a gun to threaten her. The jury found Nofoa guilty and the circuit court sentenced him to prison for 20 years concurrently. The ICA affirmed.

The Odd Issue of Judicial Bias. The HSC first confronted the curious problem of identifying the issue on appeal. A trial judge has broad discretion to control the scope of a closing argument. State v. Adams, 61 Haw. 233, 234, 602 P.2d 520, 521 (1979). But the judge can abuse its discretion at some point in determining the scope of argument. The HSC held that the circuit court abused its discretion in allowing the prosecution to refer to facts that were not in evidence. The HSC relied on a line of cases in which prosecutors commit misconduct when he or she refers to facts that were never adduced by the evidence at trial. State v. Tuua, 125 Hawaii 10, 14, 250 P.3d 273, 277 (2011); State v. Basham, 132 Hawaii 97, 114-15, 319 P.3d 1105, 1122-23 (2014). In this case, the circuit court essentially instructed the prosecutor to engage in misconduct. This isn’t the prosecutor’s fault, but was an abuse of discretion on the part of the circuit court. Nor is the issue harmless beyond a reasonable doubt. The HSC held that there was a reasonable possibility that this last-minute reference to the death of the CW contributed to the conviction.

What if the Circuit Court Re-Opened Trial to Allow Evidence of the Death? Does the analysis hinge on the fact that the CW’s death was not in evidence? What if the prosecutor stood up after closing and sought judicial notice or asked to reopen the trial to present evidence of the CW’s death? Would that have solved the problem?

When you get to use Prior Testimony at Trial. The defendant has the right to confront witnesses at trial. Haw. Const. Art. I, Sec. 14; U.S. Const. Am. VI. Out-of-court statements are barred by the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 59 (2004). Once the declarant is deemed unavailable, the statement does not offend the Hawaii confrontation clause “only if the defendant was afforded a prior opportunity to cross-examine the absent declarant about the statement.” State v. Fields, 115 Hawaii 503, 516, 168 P.3d 955, 968 (2007). This has to be a “meaningful opportunity” to cross. Id. at 528, 168 P.3d at 980.

Putting Meaning in “Meaningful.” Here, there’s no question that at the time of trial, the CW was unavailable. She’s dead. The real question was whether the cross at the prelim was a “meaningful opportunity” that would not offend the Confrontation Clauses. The HSC noted that the use of preliminary hearing at a  trial depends in large part on the discovery that was available at the time and the restrictions imposed by the trial court at the preliminary hearing. See State v. Faafiti, 54 Haw. 637, 641, 513 P.2d 697, 701 (1973); Toledo v. Lam, 67 Haw. 20, 22, 675 P.2d 773, 775 (1984). The HSC also looked to cases from other jurisdictions and declined to adopt a bright-line rule that would have banned the use of any and all preliminary hearing testimony.

Depends on the Case. Instead, the HSC adopted a case-by-case approach and emphasized three factors:
[I]n order to determine whether Nofoa had a sufficient and meaningful opportunity for cross-examination at the preliminary hearing, we consider the following factors: 1) the motive and purpose of the cross-examination, 2) whether any restrictions were placed on Nofoa’s cross-examination during the preliminary hearing, and 3) whether Nofoa had access to sufficient discovery at trial to allow for effective cross-examination of CW.

According to the HSC, the first two factors pointed toward admissibility. Nofoa’s motive was to discredit the CW at the preliminary hearing. This was significantly similar to the motive at trial—discredit the CW’s credibility. Secondly, there appeared to be no real restriction on the cross-examination of 21 pages of testimony.

The third factor, however, was strong enough to weigh against admissibility. Nofoa did not have access to all of the discovery that would have assisted him in crossing the CW. The only materials it had was the JDPC and the complaint. Nofoa lacked the CW’s multiple statements, the recorded interview, and a police report with memorializing an oral statement. Moreover, there were real discrepancies in these statements. This amounted to a deprivation of a meaningful opportunity to cross-examine the CW and the preliminary hearing testimony should never have been admitted at trial.

The 911 Call was Admissible. The HSC rejected Nofoa’s claim that the 911 recording from the gas station should never had been admitted. An excited utterance is a hearsay exception. HRE Rule 803(b)(2). To meet this exception, the proponent must show that “(1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the startling report or condition.” State v. Machado, 109 Hawaii 445, 451, 127 P.3d 941, 947 (2006). Nofoa claims that the prosecution failed the second prong. The HSC disagreed. The statement was not the product of reflective thought and was adequately part of the startling event.

And not Prohibited by the Confrontation Clause. The HSC also rejected Nofoa’s claim that the statement in the 911 call violated the Confrontation Clause. The Confrontation Clause only prohibits the admission of “testimonial” statements. State v. Fields, 115 Hawaii at 516, 168 P.3d at 968. A statement is “nontestimonial” when “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. Testimonial, however, is a statement that is not given during an emergency and its primary purpose “is to establish or prove past events potentially relevant to later criminal prosecution.” Id. According to the HSC, the CW’s statement in the 911 call was clearly non-testimonial because “any reasonable listener” would figure she “was facing an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 827 (2006).

Now that the statement is non-testimonial, the two-part test in Ohio v. Roberts, 448 U.S. 56 (1980), determines its admissibility. The non-testimonial, out-of-court statement is admissible when (1) the declarant is unavailable and (2) the statement “bears some indicia of reliability.” Fields, 115 Hawaii at 528, 168 P.3d at 980. Again, the CW is unavailable/dead. Secondly the statement is reliable because it falls within a firmly-rooted hearsay exception. See State v. Sua, 92 Hawaii 61, 71, 987 P.2d 959, 969 (1999).


Is an Excited Utterance Always Going to be Non-Testimonial? This last part on the 911 test is a perfect example of the flow-chart analysis set up in Fields. It took a while, but we finally get to see it at work. And stepping back, if the HSC has already held that it is an excited utterance, wouldn’t it be extremely difficult to do an about-face and hold that this excited utterance is testimonial (i.e., a reasoned statement that was not in the face of an emergency)?