Sunday, August 14, 2016

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.

Id.

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.

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