Counsel Deemed Ineffective for Failing to Giving Defendant Discovery and Failing to Trying to Subpoena a Witness that Might have Asserted Privilege.

Batalona v. State (HSC March 19, 2018)

Background. Albert Batalona, Sean Matsunaga, and Jacob Hayme were charged with bank robbery in federal court. The charges against Batalona were dropped and Matsunaga and Hayme were prosecuted with additional firearm charges. The State took on Batalona’s bank robbery case by way of indictment along with attempted murder in the first degree, and firearms offenses. In the meantime, Matsunaga and Hayme reached plea agreements in federal court. In a recorded statement, Matsunaga said that he had shot at the officer involved in the case.

At Batalona’s motions in limine, the prosecution reiterated that it would not be calling Matsunaga and requested that the recorded statement be excluded at trial. At trial the prosecution adduced evidence that in the middle of the day, Batalona, Matsunaga, Hayme, and Roger Dailey went into a bank with ski masks and firearms. They took $120,000 and left. Batalona and Matsunaga had AR-15s, Hayme had an AK-47, and Dailey had a .357 revolver. HPD Officer Frederick Rosskopf arrived at the scene saw a man with a ski mask near a vehicle. The man opened fire at the officer. A shoot out broke out. The officer was not shot, but did receive scratches and bruises. Dailey testified that Batalona stood on the door jamb of the passenger’s side and had his rifle pointed at the officer during the shoot out. Officer Rosskopf could not tell who was shooting at him.

Hayme’s recorded statement was used in lieu of live testimony by the prosecution. The statement contained several prejudicial points. Hayme’s statement asserted that he did not fire at first and said that only one person was mounted on top of the vehicle. That was the person—not Hayme—firing at the officer.

Batalona did not testify. He was found guilty as charged and sentenced to life without parole. His judgment was affirmed on direct appeal. Batalona brought a petition with a collateral attack. The petition was denied without a hearing. The ICA affirmed on all grounds except one: the circuit court should have held a hearing on the issue of whether Batalona’s counsel was effective for not attempting to secure Hayme as a witness. Batalona, pro se, and the prosecution petitioned to the HSC.

Duty to Give Discovery to your Client. Batalona argued that counsel’s failure to provide him with discovery amounted to ineffective assistance of counsel.

The attorney may provide the defendant with a copy of any discovery material obtained if the attorney gives the prosecutor written notice of the attorney’s intent to do so and the prosecutor does not file a motion for protective order within ten (10) days of the receipt of the notice.

HRPP Rule 16(e)(3). The HSC held that when this rule went to effect, counsel should have provided notice and litigated the issue of providing Batalona with thousands of pages of discovery. “Central to the protections of due process is the right to be accorded a meaningful opportunity to present a complete defense.” State v. Tetu, 139 Hawaii 207, 219, 386 P.3d 844, 856 (2016). Batalona claimed in his petition that without the discovery he could not guide and assist his counsel in presenting factual evidence to disprove that he was the shooter.

No Discovery Dovetailed into Decision not to Testify. Batalona also claimed that his lawyer urged him not to testify in his own defense. Batalona asserted that his lawyer told him it would interfere with trial strategy and the prosecution would “cut you to pieces” on cross-examination. Despite the Tachibana warnings, the HSC held that this combined with the failure to provide discovery presented a colorable claim requiring an evidentiary hearing. The defendant’s right to testify cannot be the product of coercion. State v. Silva, 78 Hawaii 115, 123, 890 P.2d 702, 710 (App. 1995). The HSC held that it was error to deny these issues without a hearing.

Counsel may be Ineffective for not Securing an Adverse Witness. The prosecution petitioned the HSC to review the ICA’s holding that there should be a hearing on whether counsel was ineffective for failing to secure Hayme at trial. Hayme’s redacted statement was used by the prosecution. Hayme’s redacted statement was extremely prejudicial to Batalona and exculpated himself from his involvement in the robbery. He was deemed unavailable and his statement was admitted in evidence.

Hayme’s statement was admitted as an exception to hearsay as a statement against interest. HRE Rule 804(b)(3). The declarant must be first found to be unavailable. HRE Rule 804(a). To demonstrate unavailability, there must be a good-faith effort to locate and produce the declarant. State v. Moore, 82 Hawaii 202, 223, 921 P.2d 122, 143 (1996). This requires that the party “confirm on the record at the time of trial both the declarant’s unavailability and that vigorous and appropriate steps were taken to produce the declarant’s presence at trial.” Id.

The HSC held that counsel’s failure to attempt to serve a subpoena on Hayme amounted to ineffective assistance of counsel. Counsel should “undertake all feasible measures to secure” Hayme at trial and cross-examine him. Batalona contended that Hayme was in federal custody at the time of trial, but no efforts were made to secure his presence. Counsel cannot assume that Hayme would have asserted his right against self-incrimination. This failure to secure Hayme from federal custody impaired a potentially meritorious defense and the issue of whether counsel was ineffective warranted an evidentiary hearing.

Justice Nakayama’s Dissent. Justice Nakayama took issue on the discovery issue and the right to testify. Prior to trial, the rules required counsel to obtain permission from the court before handing over discovery to the client. Counsel did in this case, but the request was denied. The rule changed to its present form about a month before trial. In Justice Nakayama’s view the petition itself and the change in the rules did not require further elaboration. She believed that counsel was not ineffective on those grounds. As for the right to testify, Justice Nakayama believed that counsel’s concerns about him testifying were warranted and, besides, he was apprised directly from the trial court that the decision to testify is his and his alone. Chief Judge Recktenwald joined.