Tuesday, April 25, 2017

The (Statutory) Right to Counsel Emerges in the DUI/OUI Investigation.

State v. Scalera (HSC April 21, 2017)
Background. John Scalera was arrested under suspicion for operating a vehicle while under the influence of an intoxicant. He was taken to the police station and the arresting officer read to him the police-issued implied consent form. The form stated that Scalera did not have the right to “an attorney before you submit to any tests or tests to determine your alcohol and/or drug content.” The officer then asked if Scalera would submit to a test. He said he would not take anything. The officer considered that a refusal and moved on to the longer implied consent form. He again said he wasn’t going to take anything. The officer deemed it a refusal.

The officer did not hear Scalera ask for an attorney, but later testified at a hearing that even if he did, he did not recall Scalera asking for one. The officer said that it “wouldn’t have mattered anyways because the forms state that you’re not entitled to an attorney during the implied consent.”

Scalera was charged with OUI. He filed a motion to suppress on the grounds that he was denied access to a lawyer pursuant to the State and federal constitutions and HRS § 803-9. The motion was denied. He was went to trial, was found guilty of OUI and refusing to submit to a test. He appealed to the ICA, and the ICA affirmed. Scalera petitioned to the HSC.

The Pre-Miranda Codification of Miranda? This case does not center around Miranda warnings and the right to counsel flowing from the United States Constitution. Instead, it comes from a statute that has been on the books for decades. In fact, it goes back to the Hawaiian Kingdom. State v. Edwards, 96 Hawaii 224, 233 n. 9, 30 P.3d 238, 247 n. 9 (2001).

“It shall be unlawful in any case of arrest for examination . . . [t]o deny to the person so arrested the right of seeing, at reasonable intervals and for a reasonable time at the place of the person’s detention, counsel or a member of the arrested person’s family[.]” HRS § 803-9(1). The statute also declares it unlawful “to examine the person before the person has had a fair opportunity to see and consult with the attorney or member of the person’s family” when “the person arrested has requested that the person see an attorney or member of the person’s family.” HRS § 803-9(4). Violation of the statute is a misdemeanor. HRS § 803-10.

The purpose of the statute is “to protect an accused’s right to counsel.” State v. Ababa, 101 Hawaii 209, 215, 65 P.3d 156, 162 (2003). This is broader in scope than the Miranda warnings. State v. Edwards, 96 Hawaii at 235, 30 P.3d at 248.

HRS § 803-9 Applies Even when there is no “Interrogation.” The HSC at the outset held that the statute applies even when there is no interrogation that would normally trigger Miranda warnings. The HSC explained that the term “arrest for examination” in the statute is broader than the “custodial interrogation” under the state and federal constitutions. And so, the statute applies in situations like Scalera’s, where he’s arrested and in custody.

“Reasonable Efforts” Requirement. Once the arrestee demands to contact an attorney, the statute requires the police to make “reasonable efforts to contact counsel.” State v. Ababa, 101 Hawaii at 216, 65 P.3d at 163. Although the statute does not require the arrestee to be informed about this right, the police cannot “preempt an invocation of these protections by giving misleading or incorrect information concerning access to counsel.”

The HSC took issue with the forms used in this case. The form stated to Scalera that he did not have the right to an attorney before deciding whether to take a chemical test. This is misleading and inaccurate. The HSC held that this form violated Scalera’s statutory right to counsel under HRS § 803-9.

So What’s the Remedy? The HSC examined whether a violation of the statute would prompt exclusion of evidence instead of another remedy (such as a criminal prosecution pursuant to HRS § 803-10). In order to invoke the exclusionary rule as a remedy to a statutory violation, the HSC noted that there must be a “connection between the statutory violations and the evidence to be suppressed.” State v. Edwards, 96 Hawaii at 237, 30 P.3d at 251. In other words, there must be preponderant evidence from that the statutory violation “ultimately had an adverse impact” on the defendant’s substantive rights. State v. Ababa, 101 Hawaii at 217-218, 65 P.3d at 164-165.

How to Exclude from a Statutory Violation . . . And so the HSC held that in order to suppress evidence, the defendant had to show that the violation of the statute—in this case, blocking access to counsel before submitting to a test—resulted in the obtaining of evidence—the evidence of a refusal in this case. Here, Scalera did not testify and did not provide evidence at the hearing to show a nexus. Because there was no nexus, the district court did not err in denying the motion to suppress. Ultimately, the judgment was affirmed.

Don’t Panic, Prosecutors. Prosecutors and police may be scratching their heads with this one. Does this mean that defense counsel had better get ready to answer some calls from drunk drivers at 2 in the morning? Does it mean that all investigating stops once the arrestee invokes the right to counsel (the statutory one, of course)? Maybe not.

In a footnote, the HSC took pains to point out that HRS § 803-9 affords access to counsel at a reasonable time and in a reasonable manner. If counsel is not available in that time frame, “an arrestee can be required to make a decision regarding testing without the advice of a lawyer when further delay will significantly postpone or materially interfere with alcohol concentration testing.”


But the police still have to give the arrestee the time and opportunity to find counsel. Perhaps it’s time for defense lawyers to start a hotline.

Delay in Determining if Defendant is Indigent or not Excluded from Rule 48

State v. Foo (ICA December 29, 2016)
Background. Quincy Choy Foo was charged with misdemeanors. He appeared in court and had no counsel. The district court referred Foo to the Office of the Public Defender to determine if he qualified for its services and ordered him to return in twenty-one days. Choy Foo appeared again without a lawyer and told the court that he had an appointment set up with the Public Defender’s Office. The case was continued again. He appeared a third time and said that the Public Defender’s Office told him to ask for more time because its deputies were in training. The court continued it again. This time he had a Public Defender who entered a not-guilty plea and demanded a jury trial. The district court remanded the case to the circuit court and set another date. At the next date before the circuit court, Choy Foo again pleaded not guilty and set the matter for trial. The circuit court continued the matter twice over the State’s objection.

Choy Foo filed a motion to dismiss pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 48. Choy Foo’s calculation showed a total of 189 days from his arrest and setting of bail to the trial date. The prosecution filed a memorandum in opposition with its calculation of 168 days. The amount of time in dispute was the twenty-day-day delay from the initial arraignment in the district court to the hearing in which Choy Foo was ordered to meet with the Public Defender. The circuit court granted the motion and included the period of time. The circuit court also dismissed the case with prejudice. The prosecution appealed.

Lawyer Math: The Rule 48 Problem. If trial does not commence within six months “from the date of arrest if bail is set or from the filing of the charge, whichever is sooner,” the case must be dismissed. HRPP Rule 48(b). Six months is 180 days. There are periods that must be excluded from the 180-day calculation.

Delays caused “by collateral or other proceedings concerning the defendant, including but not  limited to penal irresponsibility examinations and periods during which the defendant is incompetent to stand trial, pretrial motions, interlocutory appeals and trials of other charges” are excluded from the 180 days. HRPP Rule 48(c)(1). The rule further explains that certain pretrial motions—from their filing to “prompt disposition” are per se excluded. HRPP Rule 48(d)(1). A motion for withdrawal as counsel and appointment of new counsel is one of those motions.

The ICA held that the 21-day-delay caused by Choy Foo’s initial referral to the Public Defender’s Office should have been excluded under HRPP Rule 48(c)(1). The ICA reasoned that the delay in getting the services of the Public Defender is akin to a motion to withdrawal and appointment of substitute counsel and that the general language of (c)(1) adequately covers this situation. Alternatively, the ICA held that this situation is part of the “good cause” catchall in HRPP Rule 48(c)(8).


To Dismiss With or Without Prejudice . . . that is not in Question. The ICA also took issue with the dismissal with prejudice. The trial court failed to consider and articulate on the record the factors laid out in State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981). Choy Foo agreed.

Monday, April 24, 2017

Sidebars are Part of the Trial Too (So the Defendant gets to Stand There)

State v. Hilario (ICA April 19, 2017)
Background. Vincente Kotekapika Hilario was convicted and sentenced for murder in the first degree and bribery of a witness. The case begins with Aureo Moore’s shooting near Anahola Beach Park on Kauai. Moore was the complainant for a robbery in the Safeway Parking Lot in Kapaa earlier that year.

Hilario was suspected of being the driver in the Safeway robbery. Hilario and another man named Kyle Akau were arrested for the Safeway robbery. The police found a backpack near Akau containing a camping permit, timecards, a paycheck stub, hotel receipts with Hilario’s name on it, two pistols, and 125 Oxycodone pills. After the robbery, there was evidence from Pua Crawford who testified that Hilario had been trying to arrange a meeting with Moore and had encouraged folks to say he wasn’t part of the Safeway robbery. Crawford eventually arranged the meeting with Moore at Anahola. She saw Hilario there, who told her that if anyone asked she never saw him. Other witnesses testified that on that evening, Moore was shot to death. The shooting took place ten days before Hilario faced trial in the Safeway robbery.

The circuit court ruled before the murder trial that Moore’s testimony at the preliminary hearing would be admitted for the purpose of showing a motive to kill Moore. Hilario was found guilty of murder and bribery of a witness. He appealed.

The Right to be Present Includes Sidebar-Voir Dire. “The defendant shall be present at the arraignment, at the time of the plea, at evidentiary pretrial hearings, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this Rule.” HRPP Rule 43(a).

This rule codifies the Confrontation Clause and Due Process guarantees of the defendant’s presence at trial. State v. Okumura, 58 Haw. 425, 427, 570 P.2d 848, 851 (1977). In this case, the circuit court instructed the parties that it would hold jury selection at a sidebar in a bench conference. That meant that the attorneys, a prospective juror, and the judge would hui together in front of the judge. At the conference, the prospective juror would raise any objection he or she felt about participating in the case. The attorneys and the judge would also conduct examination of the juror from the bench. Hilario did not join in the conference. He sat at counsel table.

The ICA held that this procedure violated HRPP Rule 43. The rule requires the defendant’s presence “at every stage of the trial including the impaneling of the jury.” Although he was physically present, the ICA reasoned that from counsel table he was unable “to hear what is said or observe the facial expressions of the person being examined during these proceedings.” According to the ICA, it frustrated the purpose of HRPP Rule 43. The ICA also found support in its holding from federal interpretations of a similar court rule. United States v. Cuchet, 197 F.3d 1318, 1319-1320 (11th Cir. 1999); United States v. Ford, 88 F.3d 1350, 1369 (4th Cir. 1996).

. . . But you Gotta Object. And like the federal cases, the ICA noted that this rule is not absolute and would be waived if the defense does not raise an objection to the procedure. Here, the defense did raise this objection at the start of trial.

. . . And it Can’t be Harmless. The ICA also held that even though there is a violation of HRPP Rule 43, it is still subject to the harmless beyond a reasonable doubt standard. State v. Pauline, 100 Hawaii 356, 378, 60 P.3d 306, 328 (2002). Given the number and length of the sidebars in this trial, the ICA could not conclude it was harmless. Moreover, the discrepancies in the eyewitnesses, the denial of the charges, and Hilario’s consistent position that he was somewhere else at the shooting established that the evidence was not overwhelming. And so, the ICA vacated and remanded the case for a new trial.


The Safeway Robbery Evidence is Still Coming In. The ICA also examined if the trial court erred in presenting evidence of the Safeway robbery. This evidence, according to the ICA, was relevant to establishing motive to commit the murder and bribe witnesses. See HRE Rule 404(b).

Wednesday, April 19, 2017

Bugging the Mayor (and Everyone Around the Mayor) is not Disorderly Conduct

State v. Teale (HSC February 27, 2017)
Background. Laulani Teale was arrested at a May Day event under suspicion of harassment. HRS § 710-1101(1)(a) and (3). At her trial, the prosecution called officers to testify. The officers testified that Teale was part of a group of activists blowing conch shells and carrying signs and a banner. At the event, Teale attempted three to five times to approach the mayor to speak with him. She repeatedly said she wanted to talk to the mayor, but officers intervened and said that she needed to go through proper channels before talking to him and that at this event, it would be inappropriate. The officers described her as “aggressive,” “loud,” and disruptive. While the mayor was sitting down watching performances, Teale tried for a final time. Officers surrounded the mayor. Teale had a conch shell in her hand. The officers instructed her to walk away. Teale stood up and tried to walk around the officers. Teale was picked up by the officers and arrested. The trial court found Teale guilty of disorderly conduct. The ICA affirmed.

“Tumultuous Behavior” Theory of Disorderly Conduct. A person commits the offense of disorderly conduct when “with the intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person: (a) Engages in . . . tumultuous behavior.” HRS § 711-1101(1)(a). The prosecution asserted that Teale engaged in “tumultuous behavior” on May Day. The term is undefined and has not been fleshed out by the appellate courts.

The HSC noted that even though there is no clear definition of the term in statutes or case law, the commentary to the disorderly conduct statute is helpful. According to the HSC, the commentary stated that the statute is intended to provide a narrow kind of conduct deemed “disorderly” that excludes the petty annoyances and conduct directed only at police officers and added that it is aimed at “actual fights and at other behavior tending to threaten the public generally[.]” Commentary on HRS § 711-1101. The HSC also looked to the Model Penal Code and courts of other jurisdictions.

Tumultuous Behavior = Violent Agitation and Extreme Outbursts. The HSC concluded that the term “tumultuous behavior” is defined as “conduct involving violent agitation or extreme outbursts.” This definition calls attention to the actor’s conduct, not whether the conduct created a crowd of bystanders or agitated others around the actor. See, e.g. State v. Faulkner, 64 Haw. 101, 105, 637 P.2d 770, 774 (1981) (pedestrians and motorists stopping to watch altercation does not indicate whether conduct is “disorderly”).

There was no such evidence in Teale’s case. The HSC noted that Teale may have annoyed audience members. She may have failed to comply with the officers’ orders. But she was not engaging in “tumultuous behavior” and could not be convicted of the disorderly conduct offense. The judgment was reversed.