HSC overrules a nine-month-old case and goes back to the bright-line rule to determine “custody” in custodial interrogation

 State v. Hewitt (HSC March 15, 2023)

Background. Hawai'i County Officer Chandler Nancio and another officer were called to the Kona Community Hospital in the middle of the night to see a possible victim of assault. An unknown man dropped Cyrina Hewitt off at the emergency room. He found Hewitt awake with contusions on her face, her eyes were swollen shut, a laceration was on her ear, and she had a broken breast plate. She was disoriented and “rambling incoherently.” She did not know where she was or why she as in the hospital.

 

Officer Nancio waited for the nurse to treat her and then asked for her name and birth date. He stayed at her bedside and asked her questions about how she got her injuries. Hewitt at first said she had pink-eye, but then said it was a stye. Then paramedics came by and asked what was going on. The paramedics said that they saw a truck’s taillights sticking out of the bushes on the side of the road.

 

Sgt. Mekia Rose followed up on the truck and found it near the intersection of Queen Kaahumanu Highway and Kuakini Highway. It had damages to the front and its airbags were deployed. Sgt. Rose found Hewitt’s identification card in the truck and texted a photo of the card to Officer Nancio. Officer Nancio asked Hewitt if she was involved in an accident. She said yes and said she was driving that night. Officer Nancio stopped questioning her and arrested her under suspicion of operating a vehicle while under the influence of an intoxicant. Officer Nancio and none of the other officers at the scene advised Hewitt about her Miranda rights before questioning her at the hospital. They also did not tell her if she was free to remain silent, leave, or terminate the conversation. She was subjected to a blood draw without a warrant. Officer Nancio also learned Hewitt had a suspended license.

 

Hewitt was charged with operating a vehicle while under the influence of an intoxicant and driving without a license. She moved to suppress her statement and the blood draw, but the district court—with the Hon. Margaret K. Masunaga presiding—denied the motion. She was convicted of both offenses and appealed.

 

The ICA vacated the conviction not on Miranda grounds but on the grounds that the warrantless blood draw violated Hewitt’s constitutional rights. Hewitt petitioned for a writ of certiorari to address whether she was in custody for Miranda purposes. The HSC accepted certiorari.

A procedural wrinkle: the HSC retained appellate jurisdiction after the dismissal. After the HSC accepted cert, the prosecution contacted Hewitt’s counsel and offered to dismiss the case with prejudice if she withdrew the appeal. Hewitt moved for a temporary remand to the district court. The HSC granted the motion and remanded the case for 30 days, after which it would resume in the Supreme Court. On remand, the prosecution moved to “nolle prosequi” with prejudice. Nolle prosequi is short for dicit nolle prosequi, meaning that the government will no longer prosecute. King v. Robertson, 6 Haw. 718 (King. 1889). The district court—with the Hon. Judge Robert Crudele presiding—granted the motion. When the case resumed in the HSC, Hewitt moved to set aside oral argument or clarify the status of the case. The motion was denied.

 

The HSC explained that a judgment of nolle prosequi did not terminate the certiorari proceeding. The HSC retained jurisdiction

 

[t]o make . . . such . . . orders . . . and do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given to it by law or for the promotion of justice in matters pending before it.

 

HRS § 602-5(a)(6). The HSC’s remand order specifically noted that the court would resume proceedings after the remand. Thus, the HSC retained appellate jurisdiction after the remand.

 

The Miranda issue is moot, but the public-interest exception applies. Unlike federal courts, prudential concerns of judicial governance like mootness and ripeness are not set in stone. See Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 466 (1987). A moot point does not deprive the court of subject matter jurisdiction. Tax Foundation v. State, 144 Hawai'i 175, 177, 439 P.3d 127 (2019).

 

Even though the issue is moot, courts have recognized the public-interest exception to the mootness doctrine. State v. Kiese, 126 Hawai'i 494, 509, 273 P.3d 1180, 1195 (2012). The HSC held that this exception applies here. The ICA issued a published opinion in which it held that there was no Miranda violation. A nolle prosequi of the case would not change the fact that the ICA’s analysis is precedential and would remain the law of the land. The HSC held that under these circumstances, the public interest exception applies. The HSC noted that allowing the prosecution to nolle prosequi charges after a favorable ICA opinion in exchange for Hewitt’s dismissal of the appeal would result in the loss of precedential value of judicial decisions from the HSC, cause a diminished respect for the judicial process, allow the parties to obtain dismissals as a matter of right and could encourage the prosecution to delay offers until after certiorari is accepted, and places the defense of the integrity of the judicial decisions in the hands of the litigants, not the court.

 

The Miranda issue hinges on whether Hewitt was “in custody.” The Fifth Amendment to the United States Constitution and Article I, Section 10 of the Hawai'i Constitution guarantee that no person “shall be compelled in any criminal case to be a witness against himself[.]” To ensure that this constitutional right is safeguarded, suspects must be apprised of their constitutional rights before they are subjected to a custodial interrogation.

 

The Miranda rule is, at core, a constitutionally prescribed rule of evidence that requires the prosecution to lay a sufficient foundation—i.e., that the requisite warnings were administered and validly waived before the accused gave the statement sought to be adduced at trial—before it may adduce evidence of a defendant’s custodial statements that stem from interrogation during [their] criminal trial.

          The prosecution’s burden of establishing that the requisite warnings were given, however, is not triggered unless the totality of the circumstances reflect that the statement it seeks to adduce at trial was obtained as a result of “custodial interrogation,” which, as the United States Supreme Court defined it in Miranda, consists of “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [their] freedom of action in any significant way.” In other words, the defendant, objecting to the admissibility of [their] statement and, thus, seeking to suppress it, must establish that [their] statement was the result of (1) “interrogation” that occurred while [they were] (2) “in custody.”

 

State v. Wallace, 105 Hawai'i 131, 137, 94 P.3d 1257, 1281 (2004).

The HSC overrules the 9-month old “clarification” of what constitutes being “in custody.” The HSC’s standard for what constitutes being “in custody” for Miranda purposes is a bright-line rule:

 

[A] person is “in custody” for purposes of Article I, Section 10 of the Hawai'i Constitution if an objective assessment of the totality of the circumstances reflects either (1) that the person has become impliedly accused of committing a crime because the questions of the police have become sustained and coercive, such that they are no longer reasonably designed briefly to confirm or dispel their reasonable suspicion or (2) that the point of arrest has arrived because either (a) probable cause to arrest has developed or (b) the police have subjected the person to an unlawful “de facto” arrest without probable cause to do so.

 

Ketchum, 97 Hawai'i 107, 126, 34 P.3d 1006, 1025 (2001). Nine months before this opinion, the majority in State v. Sagapolutele-Silva, 151 Hawai'i 283, 511 p.3d 782 (2022), “clarified” this standard and held that the existence of probable cause is just one factor in the totality of the circumstances test. Id. at 291, 511 P.3d at 390. The HSC overruled Sagapolutele-Silva. The rule in Ketchum, according to this HSC, gave a “clear, easily applied, bright-line rule: when probable cause to arrest exists upon an initial stop or detention, the Hawai'i constitution requires that Miranda rights be given before ‘interrogation’ occurs.”

 

The HSC noted that bright-line rules “foster uniformity and predictability.” See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989). Simply put, bright-line rules are preferable. Here, the HSC held that probable cause to arrest Hewitt certainly arose when Sgt. Rose discovered Hewitt’s identification card in the truck, but Hewitt was “in custody” at an earlier time due to a different reason.

 

Based on the totality of the circumstances, Hewitt was already “in custody” even before probable cause arose. Having re-established the bright-line rule of probable cause to determine “custody,” the HSC also observed that a person can be in “custody” before probable cause arises. “Whether the defendant was in custody or otherwise deprived of [their] freedom of action for Miranda purposes is to be determined from the totality of the circumstances, objectively appraised.” State v. Patterson, 59 Haw. 357, 361, 581 P.2d 752, 755 (1978). These circumstances include the place and time of the interrogation, length of the interrogation, nature of the questions, and the conduct of the police. Id.

 

Receiving medical treatment is a relevant circumstance to consider for “custody.” When a person is questioned while confined to a hospital bed or receiving medical treatment is a relevant circumstance to determine “custody.” “When an individual is unable to ‘leave’ the place of interrogation solely due to circumstances incident to medical treatment, the question is said to be slightly different: whether [they were] at liberty to terminate the interrogation and ‘cause the [officers] to leave.” United States v. Infante, 701 F.3d 386, 396 (1st Cir. 2012). The HSC adopted more or less the First Circuit’s approach for the Hawai'i Constitution:

 

We hold that, under the Hawai'i Constitution, if a person is unable to leave a place of interrogation due to circumstances incident to medical treatment, determining whether the person is “in custody” under a totality of circumstances requires an inquiry into whether the person was at liberty to terminate the interrogation and cause the officer(s) to leave.

 

Here, Hewitt was in a hospital bed and was injured. She was disoriented. Officers stood at her bedside for three hours. She was not at liberty to terminate the interrogation and cause them to leave. The HSC applied the other factors from Patterson. It held that Hewitt was in custody and should have been Mirandized.

 

Justice Nakayama’s Dissent. Justice Nakayama disagreed that Hewitt was in custody before there was probable cause to arrest. She took issue with the fact that the police were there to investigate a possible assault and suspected that Hewitt might have been the victim. She wrote that “police officers should not be discouraged from investigating a possible assault when they are called to do so.” Under these circumstances, Justice Nakayama believed that she was not “in custody.” Chief Justice Recktenwald joined.

 

A note. This case overrules Sagapolutele-Silva, an opinion that came out about nine months before this one. In that case, the majority constituted, the CJ, Justice Nakayama, and Circuit Court Judge Paul Wong, who was assigned by reason of a vacancy. Justices McKenna and Wilson dissented there. In this case, the majority constituted Justices McKenna, Wilson, and Eddins. Justice McKenna wrote the opinion.