Tuesday, December 20, 2016

Declaring a Mistrial after Verdict Reached, but Before it's Read

State v. Gouveia (HSC October 25, 2016)
Background. Royce Gouveia was tried for manslaughter. At the end of the trial, the jury sent a communication informing the court that it had reached a verdict. Four minutes later it sent this note: “Concern. This morning on the prosecution’s side of the courtroom there was a man, shaved head, glaring and whistling at defendant. We have concern for our safety as jurors.” The circuit court conducted voir dire of the jurors—before opening the verdict—to determine what effect, if any, the incident had on them.

All twelve were questioned. Four of them said that they saw a man sitting on the “prosecution’s side” of the courtroom whistling and glaring at Gouveia during the trial. The incident came up in the jury room before the jurors reached a verdict. One juror had a safety concern. Another juror said that it might have had an impact on “other people’s decision[.]”

The prosecution moved for a mistrial over Gouveia’s objection. The circuit court declared a mistrial based on “manifest necessity.” Gouveia later filed a motion to dismiss challenging the mistrial and the subsequent prosecution. The circuit court denied the motion. He appealed the denial of the dismissal to the ICA. The ICA upheld the dismissal (and revealed the verdict was not guilty) and Gouveia petitioned the HSC for certiorari.

Testifying Jurors is Tricky. As a threshold issue, Gouveia objected to the questioning of the jurors based on HRE Rule 606(b):

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify concerning the effect of anything upon the juror’s or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may the juror’s affidavit or evidence of any statement by the juror indicating an effect of this kind be received.

The rule does not apply to juror statements made before reaching a verdict, but once a verdict is reached “the court cannot consider the jurors’ testimony as to the effect of the improper statement upon them.” State v. Kim, 103 Hawaii 285, 291, 81 P.3d 1200, 1206 (2003). The HSC held that the circuit court’s inquiry did not violate HRE Rule 606(b) because it was limited to discussions prior to reaching a verdict. Any testimony about the effect it had on the verdict was deemed not credible by the circuit court. And so there was ample evidence for the circuit court to declare a mistrial based on juror testimony.

Declaring a Mistrial. “A mistrial is properly declared and retrial is not barred by the defendant’s right against double jeopardy where the defendant consented to the mistrial or there was manifest necessity for the mistrial.” State v. Wilmer, 97 Hawaii 238, 242-243, 35 P.3d 755, 759-760 (2001). Manifest necessity arises when “it becomes no longer possible to conduct the trial or to reach a fair result based upon the evidence.” Id. at 244, 35 P.3d at 761. Such a circumstance includes prejudicial conduct making “it impossible to proceed with the trial without injustice to either the defendant or the State.” HRS § 701-110(4)(b)(iii).

Finding a Prejudicial Jury in Three Easy Steps . . . When it involves the impartiality of the jury, a rebuttable presumption of prejudice is raised. Wilmer, 97 Hawaii at 244, 35 P.3d at 761. To overcome the presumption, the trial court must investigate the totality of the circumstances and find that the outside influence on the jury was harmless beyond a reasonable doubt. Id. If it cannot be proven harmless, the court must look to alternatives to cure the harm before declaring a mistrial. State v. Minn, 79 Hawaii 461, 465, 903 P.2d 1282, 1286 (1995).

Here, the HSC held that the first step was met. The communication about the man glaring and whistling was enough to create the rebuttable presumption of prejudice. The only real question for the HSC was whether the outside influence of the man was harmless beyond a reasonable doubt and that there was no alternative but to declare a mistrial.

The HSC agreed with the circuit court that the presumption of prejudice was not rebutted. All that is needed to raise it in the first place is a prima facie showing of the possibility of an outside influence. State v. Chin, 135 Hawaii 437, 488, 353 P.3d 979, 990 (2014). In other words, the burden shifted to Gouveia to show that it was not prejudicial. The HSC also found no abuse of discretion in finding no meaningful alternative to a mistrial. Accordingly, the HSC upheld the ICA’s vacation of the dismissal order.

Justice Nakayama’s Dissent. Justice Nakayama did not necessarily disagree with the standards used by the majority. She disagreed with the majority’s application. Under her analysis, she wrote that the outside influence did not taint the verdict and it was harmless beyond a reasonable doubt. She would have held that the subsequent prosecution should have been dismissed.

They're Trespassers, not Burglars

State v. King (HSC December 13, 2016)
Background. Rudolph King walked into the Times Market at Kaimuki and stole a pack of Reese’s Peanut Butter Cups and sweet tea totaling $8.66. He was stopped, detained, and arrested for theft in the fourth degree. A loss prevention officer working for Times handed King a notification to stay off property. The notification warned him to stay off all Times properties in the State and lasted one year. About a month later, he was spotted at the Times near McCully. He stole a ribeye roast valued at $55.55. After he was arrested he acknowledged that he had been issued a notification from the Kaimuki Times. King was charged with burglary in the second degree. He filed a motion to dismiss on the grounds that he could not be charged with the burglary, but rather than trespass statute. The motion was denied. The circuit court granted the motion on the grounds that the prosecution was attempting to convert two petty misdemeanors into a Class C felony. The prosecution appealed and the ICA vacated the dismissal order. King petitioned for certiorari.

Burglary Statutes Require Proof that the Defendant did “Enter or Remain Unlawfully.” The HSC examined burglary statutes. Both burglary requires proof that the defendant “enter[ed] or remain[ed] unlawfully” within a building. HRS § 708-811. The phrase “enter or remain unlawfully” means that “to enter or remain in or upon premises when the person is not licensed, invited, or otherwise privileged to do so. A person . . . enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain[.]” HRS § 708-800.

Trespass Statutes Require Issuance of a Warning or Request to Leave. Trespass, on the other hand, arises when a person “enters or remains unlawfully in or upon commercial premises after a reasonable warning or request to leave by the owner or lessee of the commercial premises[.]” HRS § 708-814(1)(b).

So Which is it? The crux of the issue is whether the notice from Times arises to a “lawful order not to enter or remain” that can be used to prove an element of burglary. It can’t. According to the HSC, the warning issued by Times can only be used as an element of trespass, not burglary. In other words, it is not a “lawful order” for purposes of HRS § 708-800. The HSC arrived at this decision because the contents of the warning for the trespass statute is clear and very specific as to what the warning must contain. It even has to warn the person that a violation would constitute a violation of trespass (not burglary or any other offense). HRS § 708-814(1)(b). The HSC also found support in the legislative history underlying the trespass statute. The “reasonable warning” provision was added back in 1979 to make it easier for commercial properties to prosecute a petty misdemeanor rather than a violation. And so the HSC agreed with the circuit court that the felony information was not supported by probable cause and affirmed the dismissal.

It Begs the Question: What is a “Lawful Order”? Now we know that folk can’t burglarize a supermarket, store, or mall after the security guard or loss prevention officer gives the written trespass notice. It’s not a “lawful order” as defined under HRS § 708-800. That makes enough sense. After all, in order to satisfy the trespass element, the notice has to say that violating the warning “will subject the person to arrest and prosecution for trespassing pursuant to section 708-814(1)(b)[.]” HRS § 708-814(1)(b)(i). So when does it actually become a lawful order? When can entering a property in defiance of “a lawful order not to enter or remain” arise to burglary? Can a commercial property issue a “lawful order” by adding language to the warning that says not only would you be subject to trespass, but to other offenses—like burglary? Is a “lawful order” a court order? Is it an order from the property holder that has the lawful right to exclude? That, friends, may be the next question.

Monday, December 19, 2016

HSC: The Constitutional Right to Inspect the Scene (Even on Private Property!)

State v. Tetu (HSC December 5, 2016)
Background. Robert Tetu was charged with burglary in the second degree. Specifically, it was alleged that Tetu burglarized the basement of Maunaihi Terrace, a condominium in Honolulu. Throughout the discovery process, the defense received relevant police reports, surveillance footage, eight photographs, and two diagrams of the scene. Before trial, Tetu’s lawyer went to the condominium to inspect the scene but was barred entry and instructed to coordinate with the property manager. Tetu’s lawyer emailed a request and cc’d the prosecuting attorney to the property manager. The manager responded that it would present the request to the board of directors for the condominium. Counsel received no further response.

Tetu filed a motion to compel discovery on the grounds that it sought access to inspect the premises. Specifically, he argued that the “defense must examine the area from its own perspective.” He also argued that the disclosed reports, diagrams, and photographs did not accurately portray the scene and further inspection was needed. The prosecution opposed. A hearing was held on the motion. No representative from the condominium appeared. The motion was denied.

Two months later the prosecution, without informing the defense, visited the scene and took additional photographs. When the photographs were presented as additional evidence, Tetu objected and sought its exclusion. The request was denied and the photographs were used at trial. Tetu was found guilty and he was sentenced to prison for five years. Tetu appealed and the ICA affirmed. The Hawaii Supreme Court accepted certiorari.

The (Constitutional) Right to Access the Scene. As a matter of first impression, the HSC examined the constitutional dimension of the right to access the scene. Criminal defendants have the right to effective assistance of counsel. Haw. Const. Art. I, Sec. 14. This right includes the right to ensure that counsel conducted adequate pretrial investigations. See State v. Aplaca, 74 Haw. 54, 67-71, 67 n. 2, 837 P.2d 1298, 1305-1307, 1305 n. 2 (1992). According to the HSC, “defense counsel should investigate the crime scene and consider seeking access as early as possible, unless circumstances suggest it would be unnecessary in a given case.” The HSC arrived as this conclusion after reviewing extensive statutes from other jurisdictions and treatises. Here is what the HSC concluded for defense counsel:

In sum, under Article I, Section 14 of the Hawaii Constitution, a defendant is entitled to the assistance of an attorney whose representation falls within the range of performance demanded of  attorneys in criminal cases. There is a broad consensus across the United States that competent defense counsel should access the crime scene unless, after a careful investigation of the underlying facts of a case, counsel makes a reasonable determination that access is not necessary to provide effective assistance of counsel.

Check your Notes, Counsel! And so the HSC has held that the failure to inspect the scene can—in some cases—result in ineffective  assistance of counsel. When is that? Future cases, unfortunately, will have to flesh it out.

The Additional Due Process Problem. The HSC also examined a due process element to the issues presented by Tetu. The HSC further held that due process requires the right for the defendant to access the scene of the alleged crime. It is not enough to rely on what the prosecution gives the defense. “A defendant’s right to due process is infringed when defense counsel is forced to rely on materials provided by the government based on what the police or the prosecution deems relevant at the crime scene—that is, what is photographed, what is included in diagrams, or what is depicted in a video and then disclosed in discovery.”

The HSC held that Tetu’s due process rights were violated. He tried to access the scene, but was denied. On top of that, the prosecution got to go to the scene, take more pictures, and then use them over his objection at trial.

But it’s Harmless. The HSC may have found a constitutional violation, but it also examined whether the error was harmless beyond a reasonable doubt. There was strong evidence of a burglary thanks to the surveillance footage and testimony of witnesses. The HSC held that the pretrial discovery violations were harmless beyond a reasonable doubt.

So Where do we go from here? The HSC provided some guideposts for courts in the future. First, it noted that when it comes to investigating private property, some limitations should be imposed in order to preserve the third party’s constitutional right to privacy. For example, the circuit court could have imposed some reasonable time, place, and manner restrictions instead of an outright ban from the premises.

Chief Justice Recktenwald’s Concurrence and Dissent. The CJ concurred with the result. He wrote separately to point out the standard for discovery requests in criminal cases. In the CJ’s view, before accessing the scene, the defense should be required to show why inspection of the scene will lead to relevant evidence on a material issue. He opined that this is not a high standard and that Tetu showed it here. But like the majority, he believed that the error was one of harmlessness. The CJ’s concern is that if there is no showing of materiality and all that is required are reasonable time, place, and manner restrictions, the access of private property by the defendant could infringe upon the rights of victims and third parties. Justice Nakayama joined.

Tuesday, December 6, 2016

You Can't Legislate Exigency

State v. Niceloti-Velazquez (ICA December 5, 2016)
Background. Bernard Niceloti-Velazquez was charged with operating a vehicle while under the influence of an intoxicant after he had been arrested and subjected to a mandatory testing of his blood. Velazquez moved to suppress the blood draw on the grounds that it was a warrantless search and the prosecution could not justify the intrusion. The motion was denied and he was convicted. Velasquez appealed.

Mandatory Blood Draws Regulated by Statute . . . The authority to draw blood without consent from the driver comes from HRS § 291E-21:

In the event of a collision resulting in injury or death and if a law enforcement officer has probable cause to believe that a person involved in the collision has committed a violation of section . . . 291E-61 . . . the law enforcement officer shall request that a sample of blood or urine be recovered from the vehicle operator or any other person suspected of committing a violation of section . . . 291E-61.

The constitution is also at work:

[N]onconsensual, warrantless blood extraction does not violate the fourth amendment to the United States Constitution . . . so long as (1) the police have probable cause to believe that the person is [driving under the influence] and that the blood sample will evidence that offense, (2) exigent circumstances are present, and (3) the sample is obtained in a reasonable manner.

State v. Entreken, 98 Hawaii 221, 232, 47 P.3d 337, 347 (2006).

So if it’s Nonconsensual, is it Exigent? Exigency is an exception to the warrant requirement. Exigent circumstances arise “when the demands of the occasion reasonably call for an immediate police response. More specifically, it includes situations presenting an immediate threatened removal or destruction of evidence.” Id. It is evaluated on a case-by-case basis. Id.

Here, the ICA examined if the district court’s findings of fact supported exigency. The district court found that the dissipation of blood was in itself an exigent circumstance justifying the warrantless blood draw. The ICA disagreed. The Supreme Court of the United States held that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, 133 S.Ct. 1552, 1568 (2013). The ICA vacated the judgment and remanded it back for new trial.

Tuesday, October 18, 2016

Failing to Check-in is not “Custody” and is not Escape

State v. Paris (HSC August 8, 2016)
Background. Eugene Paris had been sentenced and at some point entered into a work furlough agreement. Under the terms of the agreement, Paris would be released from jail or prison and subject to certain conditions. The terms identified his furlough home in Wahiawa and required Paris to make frequent check-ins. Failure to comply with the check-in is deemed an “administrative” escape and makes no reference to criminal liability. Paris was later charged with Escape in the Second Degree in violation of HRS § 710-1021. Paris moved to dismiss the charge on the grounds that the failure to include the statutory definition of the term “custody” rendered the pleading deficient. The motion was denied. At trial, the prosecution presented a theory that work furlough was a form of “custody” and that Paris’s failure to comply by not checking in was a form of escape. Paris was found guilty. The ICA affirmed.

Insufficient Charging Instrument . . . “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]” Haw. Const. Art. I, Sec. 14. A charging instrument is constitutionally sufficient only when “it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what must be prepared to meet . . . .” State v. Wheeler, 121 Hawaii 383, 391, 219 P.3d 1170, 1178 (2009). While most statutory terms need not be included in the charging instrument, when a term is neither “unmistakable” nor “readily comprehensible to persons of common understanding,” the statutory term must be included. Id. at 393, 219 P.3d at 1181.

“Custody’s” Last Stand. Here, the felony information used the word “custody,” but failed to allege the statutory definition of the term. A person commits the offense of escape in the second degree when the person intentionally escapes from a correctional or detention facility “or from custody.” HRS § 710-1021. “Custody” means “restraint by a public servant pursuant to arrest, detention, or order of a court[.]” HRS § 710-1000.

According to the HSC, this statutory term creates additional attendant circumstances that do not make it readily comprehensible for persons of common understanding. It creates additional circumstances of who can restrain the person (“a public servant”) and by what means (“arrest, detention, or order of a court”). And so the ICA and the circuit court erred in upholding the sufficiency of the pleading.

. . . AND Insufficient Evidence. The HSC moved on to examine Paris’s challenge to the sufficiency of the evidence at trial. The prosecution must prove the element of “custody” in order to prove escape in the second degree. “Custody” means “restraint . . . pursuant to arrest, detention, or order of a court.” HRS § 710-1000. The HSC held that Paris’s “restraint” was not pursuant to an arrest or an order of the court. Thus, the only feasible restraint would be by “detention.” The HSC noted that failing to check in with the furlough center is not “detention” under the terms of the statute. He was not detained at the furlough center. His place of detention was actually the Wahiawa house. And so the HSC agreed that there had been insufficient evidence to convict Paris of escape. The judgment of conviction was reversed.

The Chief Justice’s Concurrence and Dissent. The CJ agreed that there had been errors at trial, but disagreed with the majority over the sufficiency of the evidence. There had been evidence that Paris was required to check in to the furlough center when ordered by his case manager or when his furlough pass expired, which usually expired at the end of the week and a new one was issued. The CJ noted that there had been evidence that the furlough center was part of the Oahu Community Correctional Center and was therefore a correctional facility and that he escaped from “custody” under the terms of the statute. For the CJ, the case should have been remanded for new trial. Justice Nakayama joined.

It’s not a Search when you Invite the Cops into your Garage

State v. Phillips (HSC September 30, 2016)
Background. Lincoln Phillips was convicted of attempted murder in the second degree. Phillips called the police to his home early one morning and reported that he came home to find his wife suffering from injuries and trauma to her head. Phillips told the police that he did not know the identity of the person who did it. Firefighters and police found Phillips frantic and sweating. He was pacing inside and outside the house by the driveway. As the police investigated, they discovered a hammer on top of a cooler in the garage. The hammer might have had a spot of blood on it. At one point an officer blew his nose and threw a napkin away in the trashcan within Phillips’ home. He opened the trashcan and saw clothes rolled up in it. He did nothing and covered it back up. Phillips was taken to the station to give a statement to a detective. Police officers later obtained a search warrant and searched the home and Phillips’ car. They took the hammer and went into the trashcan and removed the clothes. Phillips moved to suppress the evidence seized. The motion was denied, the evidence was used against Phillips, and he was convicted. The court sentenced Phillips to life imprisonment with the possibility of parole. Phillips appealed. The ICA vacated the judgment and remanded for a new trial, but the HSC took certiorari to set the record straight on the plain view doctrine.

The Law of Search and Seizure. The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Similarly, Article I, Section 7 in the Hawaii Constitution establishes that “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.” Warrantless searches and seizures are “presumptively unreasonable unless there is both probable cause and a legally recognized exception to the warrant requirement.” State v. Bonnell, 75 Haw. 124, 137, 856 P.2d 1265, 1273 (1993).

But What is a “Search” and “Seizure”? The HSC first had to examine if the police engaged in a warrantless search when while they were inside Phillips’ home responding to his 911 call. According to the HSC, two tests have been used to determine when police entry constitutes a “search.” First, there’s the famous test from Katz v. United States, 389 U.S. 347, 360 (1967): government intrusion into areas, objects, or activities in which the individual has exhibited “a reasonable expectation of privacy” is a search. A person’s expectation of privacy is “reasonable” when (1) the person showed an actual expectation of privacy, and (2) it is an expectation that society “is prepared to recognize as reasonable.” Id. at 361. See also State v. Stachler, 58 Haw. 412, 416, 570 P.2d 1323, 1326 (1977).

The other test comes from two recent cases of the Supreme Court: Florida v. Jardines, 133 S.Ct. 1409 (2013) and United States v. Jones, 132 S.Ct. 945 (2012). The Jones-Jardines test determines a search not by a person’s expectation of privacy, but by a more a property-based understanding of space. The government cannot trespass or physically intrude upon a constitutionally-protected space. Jones, 132 S.Ct. at 950-951; Jardines, 132 S.Ct. at 1414-17. Under this test, the court will find a search when there is (1) a trespass or physical intrusion to persons, houses, papers, or effects; and (2) the government intrusion was made for the purpose of gathering evidence.
In a footnote, the HSC observed that both tests are at work. So if there is a search under Katz, it would be unnecessary to determine if there was a search under Jones-Jardines and vice versa. See Jones, 132 S.Ct. at 953.

Katz says no Search, but Jones-Jardines Indicate Search. First, the HSC examined if there had been a search under Katz. There was none. Phillips called 911 and essentially invited the police into the garage and made his home the center of police activity. There was no expectation of privacy for him.

The Hammer was Properly Seized Under the Plain View Doctrine. Having held that the police intrusion into the garage was not a search under Katz, the HSC examined if the hammer was properly seized. So even if the police were entitled to be there without a warrant, they could not seize the hammer unless later authorized by a warrant or unless there is an exception to the warrant. See Soldal v. Cook Cty., 506 U.S. 56, 68 (1992). Plain view is an exception to the warrant requirement that allows the police to take evidence. State v. Davenport, 55 Haw. 90, 100-101, 516 P.2d 65, 72 (1973). Evidence may be seized pursuant to the plain view doctrine when the prosecution can show (1) prior justification for the government intrusion; (2) inadvertent discovery; and (3) probable cause to believe the item is evidence of a crime or contraband. State v. Meyer, 78 Hawaii 308, 314, 893 P.3d 159, 165 (1995). The HSC held that all three factors were met and the hammer was not unconstitutionally seized.

But the Clothes? The circuit court denied the motion on the grounds that even though the officer who blew his nose saw the clothes and even though that was an impermissible search so to speak, it would have been inevitably discovered due to the warrant that was later obtained. The HSC agreed.

The Inevitable Discovery Doctrine. Evidence obtained in violation of Article I, Section 7 of the Hawaii Constitution may be admitted as evidence when the prosecution can establish clear and convincing evidence that it would have been inevitably found by lawful means. State v. Lopez, 78 Hawaii 433, 451, 896 P.2d 889, 907 (1995). Here, the clothes were obtained pursuant to the warrant. After reviewing the affidavit in search of the warrant and even if the statements about seeing the clothes before search had been redacted, there was sufficient probable cause to issue the warrant in the first place. The HSC next examined if the clothing would have been found pursuant to the warrant. It did. The warrant—like most search warrants—authorized the police to look within containers. Moreover, there was proof presented that the area was sealed off and guarded preventing folks from moving or removing things from the home.

Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed with the majority (Justices Pollack and McKenna and Judge Nishimura) that the hammer and clothes were admissible. Her disagreement stems from the analysis as to what constitutes a search. For Justice Nakayama, when determining a search or not, it is not enough for a person to invite the police into the house. The concern for her was that by holding as a matter of law that the invitation removed any expectation of privacy and therefore was not a search requiring a warrant or an exception to the warrant requirement, “the defendant has an affirmative obligation to establish that he or she did not consent to a search of a constitutionally protected area.” The Chief Justice joined.

Monday, October 17, 2016

Waiving your Rights has Never been this Tough

State v. Krstoth (HSC August 9, 2016)
Background. Takson Krstoth pleaded guilty to murder in the second degree. At the change-of-plea hearing, Krstoth appeared with a Chuukese interpreter. A colloquy between Krstoth and the court revealed that Krstoth was 22 years old with a tenth-grade education. He did not read or write in the English language. The circuit court accepted the plea and set the case for sentencing. Before sentencing, the court received a letter written by someone else and purportedly signed by Krstoth. The letter stated that he entered the plea agreement because he had been frightened terribly by his defense counsel. After the letter, Krstoth’s counsel moved to withdraw as counsel and a new lawyer was appointed. Krstoth then filed a motion to withdraw the guilty plea on the grounds that the interpreter was not informing Krstoth of what was being said and was simply telling him to “say yes” and “say no.” Krstoth also argued that he did not authorize his initial lawyer to enter the plea agreement for him. The circuit court denied the motion and sentenced Krstoth to life with the possibility of parole. The ICA affirmed.

Pleading Out the Right Way? The trial judge must ensure that a guilty plea is entered voluntarily and knowingly. State v. Solomon, 107 Hawaii 117, 127, 111 P.3d 12, 22 (2005). In order to ensure a voluntarily entered plea, “the trial court should make an affirmative showing by an on-the-record colloquy between the court and the defendant wherein the defendant is shown to have a full understanding of what the plea of guilty connotes and its consequences.” Id. There must be a showing on the record that the defendant validly waived his constitutional rights associated with trial. Id.

In this case, the HSC considered the validity of the following colloquy:

Q.           Do you understand that you have a right to plead not guilty and ask for a trial?
A.           Yes.
Q.           Do you understand by pleading guilty you’ll be giving up some rights?
A.           Yes.
Q.           I need you to listen up. You have a right to file motions to challenge the charge. You have a right to a public and speedy trial which means the prosecutor must present its case against you ask quickly as possible. You have a right to a jury trial. And what a jury trial is is twelve people from the community are randomly selected. They sit in those orange chairs there. They listen to the evidence, and the jury decides if the evidence is sufficient to find you guilty.
               You have the right to have the government bring the witnesses into court to testify in front of you. And through [your lawyer] you get to question the witnesses. You have a right to testify on your own behalf or have [your lawyer] bring witnesses for you to testify for you. And finally if there was a trial and if you were found guilty, you have a right to take an appeal to a higher court to see if there was any mistakes made by this court.
               Now those are your rights as you stand there this morning. Do you understand that?
A.           Yes.
Q.           Do you understand by pleading guilty you give up those rights?
A.           Yes.
Q.           Do you understand by pleading guilty, I’m going to find you guilty and sentence you without a trial?
A.           Yes.
Q.           Do you understand that after you are sentenced you cannot change your mind and say that I didn’t like the sentence so therefore I want my trial?
A.           Yes.

The validity of a waiver is determined by assessing the totality of the circumstances and by “taking into account the defendant’s background, experience, and conduct.” State v. Gomez-Lobato, 130 Hawaii 465, 470, 312 P.3d 897, 902 (2013). A language barrier “between the defendant and the court is a salient fact that puts the trial court on notice that a defendant’s waiver may be less than knowing and intelligent.” State v. Phua, 135 Hawaii 504, 513, 353 P.3d 1046, 1055 (2015).

The Right to a Jury Trial and how to Waive it. The HSC took issue with the part of the colloquy in which the circuit court described only part of the right to a jury trial. The HSC pointed out that at no time did the court inform Krstoth that he had the right to take part in selecting the jury, that the jury’s verdict must be unanimous, and that if he were to waive the right to a jury trial, but demanded trial, the judge would decide if the defendant is guilty or not guilty. See State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000). The HSC was careful to point out that informing the defendant about these rights is not mandatory all the time, it was mandatory here given Krstoth’s limited proficiency in English and his limited education.

Other Problems with the Colloquy. The HSC also took issue with the court’s recitation of rights. First off, the HSC pointed out that the court was wrong when it told Krstoth that if the jury were to “listen to the evidence, and the jury decides if the evidence is sufficient to find you guilty.” The statement, according to the HSC, suggests that Krstoth could be found guilty based on “sufficient” evidence and not proof beyond a reasonable doubt. Moreover, the HSC found the court’s suggestion that motions limited to “challenge the charge” and nothing more, and that the right to a speedy trial meant that “trial must commence as quickly as possible” were incorrect statements of law. In the end, the HSC held that there were too many problems with the colloquy to sustain a valid waiver and vacated the judgment.

So What have we Learned? Good question. The HSC did not establish any hard and fast rules in this case. True, not all colloquies require an extensive and detailed run down on the right to a jury trial and what it means—but the court needed to do that here. Why? Because of the language barrier? The limited education? Both? And besides, the court did not clearly state the rights at issue correctly. But was that the determinative factor? Maybe. Perhaps we can chalk this up as an example of everything going sideways and not just one thing standing out. But we won’t know that until another case comes along and the HSC clears it up.

Thursday, August 18, 2016

Traffic Stops and Nothing More Does not Justify a Canine Screen

State v. Alvarez (HSC June 30, 2016)
Background. Elujino Alvarez was driving a vehicle and stopped by the police because the police saw that one of the passengers was not wearing a seatbelt. The officers recognized Alvarez from prior unrelated drug investigations and called another officer to come to the scene with his police dog to conduct a canine screening on the car. They waited for the dog and the dog alerted to the presence of narcotics. Alvarez was arrested. The police obtained a search warrant for the car and found methamphetamine and drug paraphernalia. Alvarez moved to suppress the evidence. The motion was denied. Alvarez entered a conditional plea allowing to appeal the denial of the motion. The ICA affirmed the denial. Alvarez applied for a writ of cert.

Traffic Stops, the Fourth Amendment, and You. “A stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures.” State v. Estabillio, 121 Hawaii 261, 270, 218 P.3d 749, 758 (2009). A traffic stop is deemed “reasonable” when (1) the officer has reasonable suspicion to stop the vehicle and (2) the search that was “actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” State v. Perez, 111 Hawaii 392, 397, 141 P.3d 1039, 1044 (2006).

The first part is not in dispute. Officers had reasonable suspicion to detain Alvarez’s car. On eof the passengers was unbuckled. A traffic violation gives rise to detain the vehicle. State v. Kaleohano, 99 Hawaii 370, 378, 56 P.3d 138, 146 (2002). The second part, however, is problematic for the police.

The scope of a traffic stop is “truly temporary” and must “last no longer than is necessary to effectuate the purpose of the detention.” Estabillio, 121 Hawaii 270, 218 P.3d at 758. Not only must be limited in time, but it must be limited in intensity. The search must be limited to that which is justified by the stop.

The Detention Lasted Longer in Scope and Intensity. The HSC agreed with Alvarez that the traffic stop was excessive. Alvarez was stopped because a passenger was seen without a seatbelt. The officers saw no drugs or related paraphernalia. There was nothing justifying them to get a canine screen of the vehicle for drugs. The fact that a confidential informant told the officers that Alvarez was dealing crystal methamphetamine five days before the stop is not enough. The HSC vacated the conviction and remanded for further proceedings.

When the Tip CAN Justify the Search. The HSC expressly noted that he anonymous tip about drug dealing was not enough to keep Alvarez there and subject him and his car to a canine screen. However, there are circumstances when it can. According to the HSC, when the informant is known to law enforcement, courts can then determine if that person had reliable information in the past, or if there is an adequate factual basis that the person is a reliable informant. State v. Ward, 62 Haw. 459, 461, 617 P.2d 565, 567 (1980); State v. Joao, 55 Haw. 601, 602-604, 525 P.2d 580, 582-583 (1974).

Sunday, August 14, 2016

Juveniles Cannot be Sentenced to Life Without Parole (but may be Sentenced to Life With)

State v. Tran (ICA July 14, 2016)
Background. Dat Minh Tran was seventeen years old in a car with his friends when they were involved in a chase through Waikiki with a red truck. Tran stood up from the truck and fired two shots at the red truck while standing in his car through the sunroof. He shot one of the people in the truck, but that person did not die. The second shot hit the truck’s radiator. The family court waived jurisdiction and he was tried as an adult for attempted murder in the first degree. He was found guilty. The circuit court sentenced Tran to life imprisonment without the possibility of parole. That was in 1997.

In the wake of three cases from the United States Supreme Court related to the sentencing of juveniles, Tran filed a petition to set aside his sentence. The petition was granted. After a hearing on the petition, the circuit court sentenced Tran to life with the possibility of parole. Tran appealed. Later, the Legislature amended the murder sentencing statute and prohibited courts from sentencing defendants to life without parole when the defendant was a juvenile at the time of the offense.

The Juvenile Sentencing “Trilogy” from SCOTUS. The ICA examined the three SCOTUS cases that set the backdrop for Tran’s petition and appeal. First, there’s Roper v. Simmons, 543 U.S. 551, 578 (2005), in which the high court held that sentencing offenders to death who were under the age of eighteen at the time of the offense was in violation of the Eighth Amendment’s prohibition against “cruel and unusual” punishment. The court held that unlike adults, juvenile offenders “cannot with reliability be classified among the worst offenders” and there was no constitutional justification for the death penalty in juvenile cases. Id. at 569-573. The SCOTUS looked into the matter further in Graham v. Florida, 560 U.S. 48 (2010). The court held that imposing a sentence of life without parole on juvenile offenders who did not commit homicide violated the Eighth Amendment. Id. at 69-70. Finally, the other shoe dropped in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), when the court extended the Graham prohibition and held that juveniles who did commit homicide cannot be sentenced to life without parole.

The Severability Test . . . The problem for the circuit court was how to sentence Tran after the SCOTUS declared sentences like his unconstitutional, but before the Legislature amended the statute. Tran argued that the entire statutory scheme is unconstitutional. However, there is a presumption that an entire statutory scheme is not constitutional and that only the offending portion is invalid. Ruggles v. Yagong, 135 Hawaii 411, 431, 353 P.3d 953, 973 (2015). This presumption can be overcome when something in the statute or history makes “it evident that [the Legislature], faced with the limitations imposed by the Constitution, would have preferred no statute at all to a statute with the invalid part excised.” Hamad v. Gates, 732 F.3d 990, 1001 (9th Cir. 2013). Parts that remain in the statute are (1) constitutionally valid; (2) capable of functioning independently, and (3) consistent with the Legislature’s basic objectives in enacting the statute. Id.

The Entire Sentencing Scheme is NOT Unconstitutional. The ICA held that the presumption of validity prevailed. The unconstitutional portion had been properly excised and Tran’s sentence was consistent with the new holdings of the SCOTUS. Moreover, the Legislature’s amendment shows precisely that it intended to preserve the rest of the statutory scheme.

When Friendly Officer Chit-Chat Becomes Interrogation

State v. Kazanas (HSC June 21, 2016)
Background. Kazanas was indicted with criminal property damage in the first degree and unauthorized entry into a motor vehicle in the first degree. During the early morning hours of November 1, 2011, Kazanas was taken to the hospital to treat injuries sustained to his hand. An officer accompanied him. The officer informed him that he was under arrest for UEMV “multiple times” but never apprised him of his constitutional right to remain silent, his right to attorney, and the admonition that anything he said could be used against him in a court of law. She did, however, instruct Kazanas not to talk about the case or “say anything about what he had been arrested for.”

At the hospital, Kazanas was making rude comments and other patients could hear him. The hospital staff moved him away from the other patients. A police officer sat about six feet away from him. Wanting to keep his mind off of other things and wanting to calm him down, the officer asked Kazanas if he enjoyed Halloween night and what costumes he saw. Kazanas made two non-responsive statements. First he said “I wouldn’t have to punch people if they didn’t upset me.” He also told her that “If you didn’t catch me now for this, you would’ve caught me later for something else.”

Before trial, the parties litigated the voluntariness of the statements. The circuit court concluded both were voluntary and that Miranda warnings were unnecessary, but that the second statement was unduly prejudicial and would not be admissible.

At trial a different officer testified that on Halloween night he was on patrol in Waikiki when he saw Kazanas. He recognized him because years before, back in 2005, he was involved in a case in which Kazanas had fallen from a nine-story building and lived. The officer would never forget that. The officer saw Kazanas hit a window to a car stuck in traffic with something in his hand. The glass shattered. He ran to the driver’s side window and started punching the driver.

The complainant testified that he was sitting in his car when a guy came up to him, hit his car, broke the windshield, and hit him in the face. He was not certain who the assailant was and on cross-examination admitted that he didn’t believe that Kazanas was the person who attacked him. The officer from the hospital testified too.

The defense called two of Kazanas’s friends who testified that he was not the guy who broke the windshield and assaulted the driver. Then Kazanas testified. He testified that he was not physically capable of such an attack because of his nine-story fall back in 2005. He denied being the offender.

After he testified, the prosecution requested that it present evidence of prior bad acts of physical abuse and assault that occurred after the 2005 fall. The circuit court granted the request over objection. Kazanas was acquitted of the property damage count but convicted of UEMV. He was placed on probation with 90 days jail. He appealed and the ICA affirmed.

Fifty Years of Case Law: Custodial Interrogation Requires Miranda Warnings. “No person shall . . . be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. See also U. S. Const. Am. V. These protections require that “before the State may use statements stemming from custodial interrogation, it must first demonstrate the use of procedural safeguards effective to secure the privilege against self-incrimination.” State v. Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-284 (1985). The “procedural safeguards” including warning the accused about the right to remain silent, that anything said can be used against him or her in a court of law, the right to an attorney, and that if no attorney can be afforded, an attorney would be appointed for him or her. State v. Ketchum, 97 Hawaii 107, 116, 34 P.3d 1006, 1015, (2001). See also Miranda v. Arizona, 384 U.S. 436 (1966). If the statement was made in violation of this rule, it cannot be used at trial—neither as direct evidence or even impeachment evidence. State v. Hoey, 77 Hawaii 17, 33, 881 P.2d 504, 520 (1994).

There is no question in this case that Kazanas was in custody while at the hospital under guard from the officer. The issue was whether the officer engaged in an interrogation.

The Conversation in the Hospital was an “Interrogation.” An “interrogation” for Miranda purposes arises when police know or should have known that their words or conduct were reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This standard was adopted for the Hawaii Constitution in State v. Paahana, 66 Haw. 499, 502-503, 666 P.2d 592, 595-596 (1983).

The HSC majority held that the officer in the hospital “interrogated” Kazanas. The officer may not have asked if he punched the guy in the car and broke the windshield, but she did ask him how his Halloween went. The officer knew exactly how Kazanas’ Halloween went: he was arrested and transported to the hospital under police escort. According to the majority, it was “reasonably likely” that Kazanas would elicit an incriminating response. The majority pointed out that even if the officer just wanted to calm Kazanas down and had no intention of getting a confession, “her role as a police officer rendered her part of a system that was adversarial to Kazanas at that moment, and engaging in a conversation at that point could not be ‘solely in his interest.’” Because there was no Miranda warning before the small talk, it is inadmissible at trial and the trial court and the ICA erred in allowing it to be used by the prosecution.

Prior Bad Acts Properly Admitted Because the Defendant Opened the Door. The HSC examined Kazanas’ challenge to the use of his prior bad acts. “When evidence of other crimes, wrongs, and acts [under HRE Rule 404(b)] is offered by the prosecution, the problem for the trial court is one of classifying and then balancing, if necessary . . . the prejudicial impact of the evidence with its probative worth.” State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041 (1988).

Here are the factors used by the trial court when balancing:

[T]he strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.


The HSC held that the circuit court did not abuse its discretion in allowing evidence of the 2007 assault. The 2007 assault included facts that Kazanas ran up to people, punched them in the face, ran from the police, and jumped a fence to escape—acts that Kazanas testified that he could not do because of the fall in 2005. Kazanas clearly opened the door here.

The other case, abuse of family or household member in 2007, involved striking a victim with a cane. This is very different from the running, punching, and jumping he claimed that he could not do. That evidence was not needed an abuse of discretion. Moreover, the HSC held that the fact that Kazanas struck a woman in the face with a cane “carried with it the potential to rouse the jury to overmastering hostility” against him.  Evidence of punches to an different assault in 2006 was also unnecessary since the first case—the 2007 assault—was already coming in.

Justice Nakayama’s Dissent. For Justice Nakayama, took issue with the majority’s articulation of the standard defining “interrogation” for Miranda. This was not simply an objective standard in assessing whether the officer’s conduct was reasonably likely to elicit an incriminating response. Justice Nakayama wrote that the trial court assesses whether “interrogation” takes place is based upon a totality of the circumstances. Under this totality-of-circumstances-test, the “ultimate question” is the reasonable-likelihood-of-an-incriminating-response question. This is not a matter of semantics. By focusing only on the latter part, the majority disregarded all of the surrounding circumstances, including whether the accused had had prior law-enforcement contacts, the time, length of questioning, nature of the questions, and other factors. On top of that, Justice Nakayama wrote that the officer’s conduct did not arise to an “interrogation” and would have affirmed the ICA. The Chief Justice joined.

Friday, August 12, 2016

The Intricacies of the Felon-In-Possession Statute

State v. Frazer (ICA May 13, 2016)
Background. Michael Frazer was indicted with one count of promoting a dangerous drug in the first degree and violation of a protective order. He pleaded guilty to both counts and moved for a conditional discharge pursuant to HRS § 712-1255. The circuit court granted the motion and placed him on probation for five years in count one and two years on count two.

Four years later, Frazer gets charged with one count of first-degree terroristic threatening with use of a dangerous weapon—a semi-automatic firearm and one count of possession of a firearm while “under indictment” for a felony pursuant to HRS § 134-7(b). Frazer moved to dismiss count two on the grounds that he was not “under indictment” and the circuit court agreed. In its order granting the motion, the circuit court concluded that a person who has been granted a conditional discharge is neither “under indictment” nor convicted. The circuit court limited the language of “under indictment” to pretrial status of the defendant. The circuit court also ruled that as an alternative dismissal was warranted under its inherent powers articulated in HRS § 603-21.9(6). The circuit court reasoned that there was no way the prosecution could prove that at the very least Frazer recklessly disregarded the risk that he was “under indictment.” The prosecution appealed.

“Under Indictment” Means On Probation. The ICA agreed with the prosecution that Frazer was “under indictment.” Here’s HRS § 134-7(b):

No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

According to the ICA, the plain language of the statute prohibits possession of firearms to those who are “under indictment” of a felony—that is, those who have been charged, but not adjudicated of a felony. Not only was the language plain for the ICA, it also found supportive legislative history.

But What about Conditional Discharge? The ICA next examined the particular challenge of a person on probation by way of conditional discharge. Conditional discharge means that the defendant is found guilty and placed on probation, but can later seek expungement of the conviction once he or she has completed the terms of probation. HRS § 712-1255.

Normally, a Deferral or Conditional Discharge is not a “Conviction.” According to the ICA, Frazer was not charged with being a convicted felon in possession of a firearm, but only under indictment. However, the ICA reasoned that it would make no sense for a person to be “under indictment” and then later be found guilty pursuant to the conditional discharge statute or plead guilty pursuant to a deferral agreement and be out of the scope of the felon-in-possession statute. However, the Hawaii Supreme Court in State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985), held that a deferral plea and sentence is not a “conviction” for purposes of HRS § 134-7(b). Thus, based on that logic, the ICA extended the exception to conditional discharges. A person sentenced to probation under the conditional discharge statute is not considered “convicted” for the felon-in-possession statute.

But What about Being “Under Indictment?” The ICA moved on to consider the other question: whether the same exception extends to those who were “under indictment.” The ICA held that the Ritte exception did not apply. According to the ICA, the fact that Frazer had been serving a conditional discharge sentence and was “under indictment” of a separate felony and that he was within the felon-in-possession scope. The ICA vacated the dismissal order and remanded for further proceedings.

Thursday, May 12, 2016

Sometimes “Reasonable Removal” means no Removal at all.

State v. Bowman (HSC May 9, 2016)
Background. One afternoon, Officer Romeo Fuiava was driving along the Hawaii Belt Road near Paauilo on the Big Island in the Hilo-bound direction. He saw a green flatbed truck driving in the opposite lane with containers filled with lettuce or cabbage. About half a mile down the road he saw cabbage or lettuce leaves on the highway and on the side of the road. There were no other vehicles with cabbage or lettuce. Officer Fuiava turned around, caught up with the truck and pulled him over. The driver was Max Bowman. Officer Fuiava cited Bowman with HRS § 291C-131, spilling a load on highways.

Bowman went to trial in the district court. At trial, the prosecution called Officer Fuiava, who testified about his observations. Bowman, appearing pro se, testified to the court that he was a farmer carrying agricultural products from the field during harvesting. He admitted that at some point, the cabbage spilled onto the highway. “It was trimmings. I actually drove past that section of the road later in the day, did not see any of it. I can only imagine the wind blew it off the road to decompose in a matter of days on the side, or it had been run over sufficiently and evaporated on the road.” He argued that it was unreasonable for him to go back and get the leaves off the road. “I feel risk of life and limb, running onto the road, grabbing three or four leaves of cabbage as opposed to letting it decompose naturally does not sound reasonable to me.”

The district court ruled for the prosecution. In convicting Bowman, the court noted that had he gone back and picked up the leaves, he would have been acquitted. The district court fined Bowman $250 and a $7 court fee. Bowman appealed to the ICA. The ICA affirmed. He petitioned to the HSC.

The Curious Offense of Spilling a Load onto the Highway. In our traffic code, it is a violation to spill loads on highways:

(a) No vehicle shall be moved on any highway, unless the vehicle is so constructed, covered, or loaded as to prevent any of its load other than clear waters or feathers from live birds from dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom, except that sand may be dropped for the purposes of securing traction, or water or other substance may be sprinkled on a highway in cleaning or maintaining the highway.
. . . .
(c) Vehicles carrying agricultural produce from fields during harvesting shall be exempt from the requirements of this section, but the owner of the vehicle must provide a reasonable removal of all such produce spilled or dropped on the highway.

HRS § 291C-131.

The offense is stated in (a), but there is a defense in paragraph (c). According to the HSC, this defense is comprised of four parts: (1) vehicle carrying agricultural products, (2) from fields, (3) during harvesting, and (4) the owner of the vehicle must provide for the reasonable removal of all such produce spilled or dropped on the highway. This is a non-affirmative defense.

The Burden of Production Requires Some Proof of Each and Every Part of the Defense. The HSC rejected Bowman’s argument that he needed to present some of the four parts. The burden of production is the minimum the defendant must show before the burden shifts to the prosecution to disprove the non-affirmative defense. The defendant need only produce some evidence of the defense, “no matter how weak or inconclusive” to meet the burden. State v. Stocker, 90 Hawaii 85, 976 P.2d 329 (1999). However, the HSC held that even though the quantity of evidence is low, the defendant still has to show each and every part of the defense before the burden shifts to the prosecution.

Determining a “Reasonable Removal.” Fortunately for Bowman, that wasn’t the end of the inquiry. The HSC examined the parts of the defense. The difficulty is whether he engaged in the “reasonable removal” of the produce without going back and picking up the cabbage.

In interpreting the HRS § 291C-131(c), the HSC examined its legislative history. The removal of produce must be reasonable. The HSC agreed with Bowman that going back onto the highway and risk “life and limb” for a few cabbage leaves is unreasonable. The purpose of the statute was to penalize those trucks that spilled loads onto highways making the highway unsafe for others. Subsection (c) was designed to help the sugar industry. S. Stand. Comm. Rep. No. 308, in 1977 Sen. Journal, at 986-987. Cane haulers often spilled cane stalks onto the road, but so long as the sugar company provided some reasonable removal of these stalks, they would be exempt from liability under the statute.

In this case, Bowman’s cabbage are nothing like cane stalks. “And while it would be reasonable to remove sugar cane stalks from a highway in order to prevent an accident or vehicle damage, it might not be reasonable to remove cabbage trimmings, especially if the attempted removal is on a busy highway and is itself risky for both the person attempting the removal and the motorists driving on the highway.” The HSC held that “reasonable removal” means removal of spilled produce is only necessary when it is reasonable do to so. Based on that interpretation, the HSC held that Bowman met his burden of production.

The Prosecution didn’t Meet its Burden of Proof. Having held that Bowman met his burden of production, the prosecution was then required to disprove beyond a reasonable doubt that the defense was not met. It failed. The HSC, therefore, reversed the judgment and held that Bowman was entitled to a refund of the fine and fees.

Editor’s Note. In the interest of full disclosure, I was the attorney for Mr. Bowman in his application for writ of certiorari to the HSC.

Tightening the Reins on Expert Testimony

State v. Kony (HSC May 4, 2016)
Background. Last Kony as indicted with various charges of sexual assault in the first degree and sexual assault in the third degree. The complainant was a minor at the time of the alleged offense. The CW was living in the home and was fifteen years old. Kony was the boyfriend of the CW’s half-sister and father of two children in the home.

Before trial, Kony moved to exclude the testimony of Dr. Alexander Jay Bivens on the grounds that his testimony would be irrelevant and, if relevant, its probative value would be substantially outweighed by the danger of unfair prejudice in violation of HRE Rule 403. At the hearing on the motion, the prosecution responded that Dr. Bivens’ testimony was needed to explain to the jury why the CW’s reporting of the alleged assaults was delayed. The prosecution asserted that it would limit Dr. Bivens to the factors that would hypothetically lead to delayed reporting. The circuit court denied the motion and would allow Dr. Bivens to testify. The court warned defense counsel that if there were objectionable questions, counsel should object and the court would rule “question by question” on the objections.

At trial, the CW testified about various sexual acts she endured by Kony. She testified that she did not report these acts nearly three months later. Dr. Bivens also testified as an expert witness.

Dr. Bivens testified as an expert in clinical psychology “with an emphasis on the dynamics of child sexual abuse.” He did not have any personal knowledge about the case. He testified that in general, most child sexual abuse occurs within the home. He also used percentages. He testified that “54 percent of offenses occur in the molester’s home, and, um, . . . 45 percent say, occur in the child’s home.” He also testified that “85 percent of sexual abuse victims have a pre-existing non-sexual relationship with their molester.” He added that “over 95 percent of sexual crimes are committed by males. . . . Perpetrators are typically male.”

He also explained why many victims of sexual abuse do not talk about it until much later. He added that “about 33 percent of children who tell will tell their mother. About a same number of children, 32 percent or so, will tell a close friend and usually in their teenage years[.]” Dr. Bivens even had percentages on the reasons why victims did not disclose until much later. Counsel did not object to this testimony.

Kony was found guilty as charged and sentenced to twenty years prison. Kony appealed and the ICA affirmed. Judge Reifurth concurred would have found Dr. Bivens’ testimony inadmissible if Kony’s counsel had objected. Kony petitioned to the HSC.

Dr. Bivens’ Testimony is Relevant. Expert opinion is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” HRE Rule 702. Sexual abuse of children, according to the HSC, “is a particularly mysterious phenomenon.” State v. Batangan, 71 Haw. 552, 557, 799 P.2d 48, 51 (1990). Experts have been used in such cases to explain “the unique interpersonal dynamics involved in prosecution for intrafamily child sexual abuse” and can correct “widely held misconceptions” surrounding it. Id. at 557-558, 799 P.2d at 52. Expert testimony can explain a pattern of behavior like delayed reporting. Id. at 557, 799 P.2d at 52.

Here, Dr. Bivens testified about delayed reporting by children. The HSC rejected Kony’s argument that there was no need for expert opinion about this. This case was one that involved a delay in reporting of nearly three months. Thus, according to the HSC, Dr. Bivens’ testimony was relevant.

Object! Object! Object! The HSC next reviewed the rest of Kony’s contentions on appeal. Kony argued that the rest of Dr. Bivens’ testimony should have never been presented to the jury. The testimony profiled Kony as a sex offender and his use of statistics were misleading and highly prejudicial. Kony argued that he preserved the argument by filing the motion in limine and objecting to any and all of Dr. Bivens’ testimony. The HSC disagreed.

At the motion in limine, the circuit court specifically limited the argument to the issue of delayed reporting. The trial court instructed counsel to raise objections at trial and it would rule “question by question.” At trial, counsel did not object to the profiling or to the use of statistics. When counsel did object—on other questions—the trial court reiterated that it would rule question by question and encouraged objections that counsel saw fit. And so, the HSC held that the arguments were not preserved for appellate review.

How to NOT Preserve an Issue on Appeal . . .
The HSC took pains to explain the exact specifics surrounding the lost appellate issue:

Under the specific circumstances of this case, where the defendant moved in limine to entirely exclude an expert from testifying but the evidence that the prosecution stated it intended to elicit was admissible, the defendant was specifically instructed by the court to object during the course of the trial to objectionable testimony, and the defendant did not properly object, the requirements of HRE Rule 103 were not fulfilled.

It seems like a lot of moving parts. It suggests that if the trial court did not instruct the party to object at trial, there might have been preservation. Perhaps this is a way for the HSC to later distinguish this case from another case in the future in which the issue is actually preserved. But then again, why risk it? Why not object? Maybe next time.

The Use of Statistics were Erroneous. Despite the lost issue, a majority of the justices went ahead and examined the legitimacy of Dr. Bivens’ profiling and use of statistics in order to provide guidance. It tackled Dr. Bivens’ statistics.  The HSC cautioned that just because the expert testimony may be relevant, it can still be excluded on the grounds that it unduly prejudiced the defendant. State v. Batangan, 71 Haw. at 557-558, 799 P.2d at 51-52. In other words, trial courts still have to apply HRE Rule 403. When it comes to expert testimony, the danger of unfair prejudice is high and trial courts should “exercise[] more control over experts than over lay witnesses.” State v. Vliet, 95 Hawaii 94, 108, 19 P.3d 42 56 (2001).

Things get even trickier when the expert resorts to statistics. Relying on secondary sources like studies and federal courts, the HSC cautioned that statistics can undermine the reasonable doubt standard because it would look like evidence through expert testimony that a “defendant is more likely to be guilty because he or she may share characteristics or traits with discrete populations of offenders.”

If You’re Going to Use Statistics, You Gotta Present them Right. The HSC did not outright reject the use of statistics. Instead, it concluded that trial courts need to consider the way the statistics are presented. “Testimony that a percentage of offenders or victims have a particular characteristic may be misleading unless the percentage of all persons with the relevant characteristic that are offenders or victims is also stated. Thus, a statistic that 95 percent of burglaries are committed by persons within a certain economic group has the potential to be serious misleading without also stating the percentage of all persons within that economic group who commit burglaries.”

In this case, Dr. Bivens’ use of statistics were misleading. For example, Dr. Bivens testified that 95 percent of sexual abusers are male. This alone is misleading because it wrongly suggests that all males are likely to be sexual abusers. The actual percentage of all men who abuse children was never stated. Without that context, the testimony is misleading. It’s just too bad for Kony that there was no objection.

Chief Justice Recktenwald’s Concurrence. The CJ agreed that the issue was not preserved on appeal, but wrote separately because he would not have provided “guidance” and examined the use of statistics. Justice Nakayama joined.