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.