Wednesday, January 7, 2015

Pretrial Colloquy Must Include Notice that Right NOT to Testify Cannot be Used Against Defendant

State v. Monteil (HSC December 23, 2014)
Background. James Monteil was charged with one count of prostitution. HRS § 712-1200(1). He pleaded not guilty. At the start of the bench trial, the district court judge engaged in a colloquy about his rights. The court asked Monteil if he understood that no one could force him to testify, that no one could force him to present evidence, that the State had to prove its case beyond a reasonable doubt, that if he did wish to testify, he’d have to testify under oath and be subjected to cross-examination by the prosecutor, and that he could wait to decide to testify until after the State finished presenting its case. Monteil said he understood these rights. The trial court did not inform Monteil that if he did not testify, his silence could not be used against him in deciding the case.

At trial, HPD Sgt. Chad Taniyama testified that he posted an ad on “” entitled “ExOtIC BeAuTy AwAiTs You ToDaY.” Here’s the ad:

Hey fellas my name is SiN.
I am here for a short visit, take advantage while you can.
I’m proof that amazing beauty comes in small packages. I’m
5’ with race car curves and eager to make your dreams come
true. Your imagination is our only limit. 100% REAL!! I
guarantee you won’t want to say goodbye.
420 Friendly.
Send me a message at to set up an

Sgt. Taniyama testified that he received an email from Monteil and had an email exchange as “SiN.” They made arrangements to meet in Kona. Sgt. Taniyama informed Monteil that it would cost $300 for “GFE experience for an hour or two” and made arrangements at a hotel in Kona. On the day of the arranged time and place, Monteil showed up and met with Officer Sharon Yoon, who was dressed up “as a prostitute.” Monteil went inside the room and Officer Yoon said she was “gonna get ready.” She left the room and other officers came in. They arrested Monteil and he had $300 cash on his person. Sgt. Taniyama explained that “GFE” stood for “girlfriend experience,” which according to the officer, meant sexual intercourse without contraceptives. There was no express evidence that Monteil came into the room to have sex.

Monteil took the stand without further colloquy. He testified that he had no intention of having sex, but was looking for an escort to take to dinner and have a drink. He said that he thought “GFE” meant “good-faith estimate” or “good fun everywhere experience,” which, according to him, was a common term in the hotel industry. The district court found Monteil guilty and sentenced him to a $500 fine. He appealed and the ICA affirmed.

Sufficiency of Evidence. Evidence is sufficient to sustain the verdict when “there is ‘substantial evidence’ to support the conclusion of the trier of fact.” State v. Matavale, 115 Hawaii 149, 157-58, 166 P.3d 322, 330-31 (2007). Substantial evidence is “credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Id. at 158, 166 P.3d at 331.

A person commits the offense of prostitution if he or she “pays, agrees to pay, or offers to pay a fee to another to engage in sexual conduct.” HRS § 712-1200(1)(b). Here the crux of the issue came down to payment in exchange for sexual conduct. Both Sgt. Taniyama and Monteil had different definitions of “GFE experience.” The district court relied on the officer’s definition over Monteil’s. That was enough for the HSC to affirm the ICA’s conclusion that there had been sufficient evidence to convict Monteil of the offense of prostitution.

The Pre-Trial Colloquy Must Include Notice that Not Testifying Cannot be Used Against Defendant. Just as the defendant has the right to testify at trial, he or she also has the right to not testify. State v. Silva, 78 Hawaii 115, 124, 890 P.2d 702, 711 (App. 1995). This was well established in Hawaii long before Statehood too. King v. McGiffin, 7 Haw. 104, 114 (Haw. King. 1887) (prosecutor’s comment on defendant’s failure to testify was “highly improper”). Modern-day rules of evidence also prohibit any negative inference to be drawn from the defendant’s refusal to testify. HRE Rule 513(a). In order to ensure that this right is respected, the trial court must engage in an open colloquy with the defendant that “he or she has the right not to testify and that if he or she does not testify then the jury can be instructed about that right.” Tachibana v. State, 79 Hawaii 226, 236 n. 7, 900 P.2d 1293, 1303 n. 7 (1995). The colloquy is required only when the defendant does not testify.

The HSC held that “in order to more fully protect the right not to testify under the Hawaii Constitution, the trial courts when informing the defendant of the right not to testify during the pretrial advisement must also advise the defendant that the exercise of this right may not be used by the fact finder to decide the case.” However, the HSC limited the effectiveness to trials starting after the date of this opinion.

Monday, January 5, 2015

Discovery Shenanigans and Race-Based Sentencing

State v. David (ICA December 15, 2014)
Background. Peter David was charged with second-degree murder of Santhony Albert and second-degree assault with a dangerous instrument of Torokas Kikku. During the opening statement, the prosecutor, Darrell Wong, told the jury that the three of them were at Kikku’s apartment in Waipahu. David and Albert were drinking and wrestling. At some point, David’s cousins point out that David had a cut on his nose. The prosecutor told the jury that at that point, David said “[n]obody does this to me, make me look like this, beat me up.”

After the opening statement, David’s counsel, Edward Aquino, objected that that statement was not made part of the discovery. The prosecutor responded that his understanding of discovery rules required only disclosure of written or recorded statements by the defendant. The circuit court—without correcting the prosecutor’s understanding of the rules—ruled that it was not going to preclude the statement, but give David ample time to prepare if necessary. The prosecutor identified Kikku as the witness who would testify that David made the statement. The circuit court ordered the prosecutor to make Kikku available for the defense counsel to interview. David declined, but requested a further opportunity to interview Kikku and explore possible alternatives.

Trial began and before Kikku testified, the circuit court asked David’s counsel if he had time to prepare for the statement. Kikku revealed further that she told the prosecutors about David’s statement on two separate occasions—once in July and again in three days before trial. David again renewed his claim of unfair surprise and asked that the statement be excluded. The request was again denied.

In the middle of Kikku’s testimony, the parties held a bench conference where the prosecutor proffered that Kikku would say that David told Albert, “I want the beer that you have in your car.” Albert said, “no, you can’t have the beer” and David was upset. David’s counsel objected to this brand new statement that had not been disclosed by the prosecution. David moved for a mistrial. The circuit court ruled that the statement should have been disclosed, but there was other evidence established that David and Albert were upset with each other and that they had been drinking alcohol. The circuit court denied the motion and ruled that the prosecution’s failure to disclose “can be cured by a continuance[.]” Kikku testified about the statement regarding the beer and about the statement during the opening.

The prosecution later elicited evidence that Albert and David got into a fight and that Albet had been stabbed to death. There was also some evidence that David threw rocks at Kikku and she had scratches on her arms. After the prosecution rested, David testified. He said that he was invited to the party in Waipahu and that he was not fighting with Albert in the parking lot when the police arrived. He denied talking to the police in the parking lot.

The prosecution then sought to call rebuttal witnesses that would impeach David’s testimony as to what he said to the police in the parking lot and impeach the invitation to the party. Over David’s objection, the circuit court allowed the witnesses to testify.

David was found guilty of manslaughter and assault in the second degree. At the sentencing hearing, the prosecutor highlighted the fact that David was from Chuuk, Micronesia and said “we’re talking Micronesians who get inebriated on alcohol, then become violent with their own family members, their own friends and they involve knives.” The prosecutor urged a 20-year sentence in order to “send[] a message to the Micronesian community” that this behavior “is not acceptable in the laws of the United States and the State of Hawaii.” The prosecutor prefaced these comments by saying he “by no means mean[t] to be a racist about anything.”

The circuit court sentenced David to prison for 20 years.

Discovery Violations and the Remedies for them. The ICA made it clear that the prosecutor violated the discovery rules. The prosecution is required to disclose to the defense, “any written or recorded statements and the substance of any oral statements made by the defendant[.]” HRPP Rule 16(b)(1)(ii). The duty to disclose continues and the prosecution must disclose materials when it learns about its existence. HRPP Rule 16(e)(2). The prosecutor’s failure to disclose David’s statements about his nose and the beer violated Rule 16.

Once a violation is found, the trial court has discretion in fashioning a remedy. When a party has failed to comply with the discovery rules, “the court may order such party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances.” When exercising this discretion, the trial court “should take into account the reasons why the disclosure was not made, the extent of prejudice, if any, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstance.” State v. Dowsett, 10 Haw. App. 491, 495, 878 P.2d 739, 742 (1994). The court must look to less drastic measures to rectify the prejudice before declaring a mistrial. Id.

In this case, the ICA held that while the prosecutor clearly violated Rule 16 by not disclosing these statements, its failure to disclose did not warrant dismissal and the chance to continue the case was an adequate remedy.

Prosecution can call Rebuttal Witnesses to Impeach Defendant’s Testimony. There are three basic rules when it comes to rebuttal evidence:

First, as a general rule, a party is bound to give all available evidence in support of an issue in the first instance it is raised at trial and will not be permitted to hold back evidence confirmatory of his or her case and then offer it on rebuttal.
Second, this general rule does not necessarily apply where the evidence sought to be presented on rebuttal is “negative of a potential defense,” even if the evidence also confirmatory of an affirmative position upon which the party seeking to present the evidence bears the burden of proof.
Third, although a plaintiff is not required to call, during his or her case-in-chief, every conceivable witness who might contradict a potential defense witness, it is also generally true that a party cannot, as a matter of right, offer in rebuttal evidence which was proper or should have been introduced in chief, even though it tends to contradict the adverse party’s evidence, it may and generally should decline to admit the evidence.

State v. Duncan, 101 Hawaii 269, 276, 67 P.3d 768, 775 (2003). So because rebuttal evidence is not a matter of right, the trial court has the discretion to permit rebuttal evidence. Id.

Here, the prosecution sought to call rebuttal witnesses that contradicted or impeached David’s testimony on two points: that he had been invited to Waipahu and that he did not speak to the police. The ICA concluded that this rebuttal evidence went to credibility issues of the witnesses, including David, and it was not an abuse of discretion in allowing them to testify after David.

Sending a Message to the “Micronesian Community.” The ICA made it pretty clear: “a defendant’s race, ethnicity, or national origin cannot be used as a justification for the imposition of a harsher penalty on the defendant.” Similarly, an “appeal to racial prejudice threatens our multicultural society and constitutional values. We must therefore recognize that our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” State v. Rogan, 91 Hawaii 405, 414-15, 984 P.2d 1231, 1240-41 (1999). The ICA held that the prosecutor’s sentencing remarks were “highly improper.” He emphasized David’s ethnicity and used negative stereotypes about Micronesians and urged the sentencing court to make an example of him for the rest of the Micronesian community. These comments were so inflammatory that the sentencing court should have taken to ensure that its sentence was not in anyway the result of the comments. And even though the court did not accept or rely on the prosecutor’s representations about Micronesians, “justice must satisfy the appearance of justice[.]” Offutt v. United States, 348 U.S. 11, 14 (1954). And so the ICA vacated the judgment and remanded the case to sentencing before a different judge.