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.