HSC reins in restitution awards and prosecutors at the grand jury
State v. Borge (HSC March 15, 2023)
Background. On November 5, 2019, Maui police officers
responded to the Paia Youth and Cultural Center between Baldwin Beach and Paia Bay.
They found the complainant had suffered serious injuries after Borge struck him
on the head several times with a piece of wood. Borge was arrested. The
prosecution went to the grand jury and called Detective Dennis Clifton. Det.
Clifton testified he investigated the case and met with Borge after he was
arrested. The following exchange took place:
Q. . . . . Did you notice any injuries to Mr. Borge?
A. No.
Q. None to his head, arms, anyplace?
A. No, sir.
Q. Okay. And you didn’t take any statement from Mr. Borge?
A. We attempted to question him, but he
requested to speak to an attorney.
After Det. Clifton finished testifying, the
prosecutor said, “[b]efore I proceed, Detective Clifton testified Mr. Borge was
asking for an attorney. I’m going to advise the grand jury that you’re not to
consider that information in your deliberation.” The grand jury returned a true
bill of indictment charging Borge with attempted second-degree murder. Borge
moved to dismiss the second indictment for improperly eliciting testimony about
his right to remain silent. The circuit court, with the Hon. Judge Kelsey T.
Kawano presiding, denied the motion.
Borge pleaded no contest to assault in the first
degree and reserved the right to appeal from the denial of the motion to
dismiss. A presentence investigation (PSI) was ordered. The prosecution filed
an addendum including 115 pages of billing from the Maui Memorial hospital. The
bills totaled $1,461,444.01 even though some of were paid by AlohaCare, a medical
insurance provider, and other adjustments and write-offs were made. Over Borge’s
objection, the circuit court awarded the entire amount in restitution and
sentenced him to prison for ten years. He appealed. The ICA affirmed. The HSC
accepted Borge’s writ of certiorari.
Testimony about the right to remain silent violates
the due process right to a fair and impartial grand jury. “No person shall be
deprived of life, liberty or property without due process of law[.]” Haw.
Const. Art. I, Sec. 5. Due process requires a fair and impartial grand jury
hearing. State v. Rodrigues, 63 Haw. 412, 417, 629 P.2d 1111, 1115
(1981). Prosecutorial misconduct “is a legal term of art that refers to any
improper action committed by a prosecutor, however harmless or unintentional.” State
v. Williams, 146 Hawai'i 62, 72, 456 P.3d 135, 145 (2020). Prosecutorial
misconduct undermining the fundamental fairness and integrity of the grand jury
process is presumptively prejudicial. State v. Wong, 97 Hawai'i 512,
517-518, 40 P.3d 914, 919-920 (2002).
There is also the constitutional right against self-incrimination.
No person shall “be compelled in any criminal case to be a witness against
oneself.” Haw. Const. Art. I, Sec. 10. It is “an established doctrine of our
civilized society.” Brown v. Walker, 161 U.S. 591, 637 (1896). It is
sacrosanct and “[t]here is nothing more basic and more fundamental than that
the accused has a constitutional right to remain silent, and the exercise of
this privilege may not be used against” them. State v. Mainaaupo, 117 Hawai'i
235, 252, 178 P.3d 1, 18 (2008).
The right against self-incrimination prohibits the
prosecution from adducing evidence of or commenting on a person’s exercise of
the right. State v. Beaudet-Close, 148 Hawai'i 66, 72-73, 468 P.3d 80,
86-87 (2020). Moreover, prosecutors cannot directly or indirectly imply guilt
through witness testimony about the right to remain silent. State v.
Tsujimura, 140 Hawiai 299, 315-318, 400 P.3d 500, 516-519 (2017). Whether
the prosecution’s presentation of evidence at trial infringes upon the accused’s
right against self-incrimination depends on “whether the prosecutor intended for
the information elicited to imply the defendant’s guilt or whether the character
of the information suggests to the factfinder that the defendant’s prearrest
silence may be considered as inferential evidence of the defendant’s guilt.” Id.
at 315, 400 P.3d at 516.
The HSC extends the test to grand jury
proceedings. The
HSC extended these rights to grand jury proceedings:
[W]e hold that in the
grand jury context, the test is whether the prosecutor intended for the information
elicited to imply probable cause exists or whether the character of the
information suggests to the jurors that the accused’s silence may be considered
as inferential evidence to find probable cause.
The HSC held that it did not matter if the
prosecution anticipated Det. Clifton’s response. The character of the evidence
was clearly improper and the prosecutor adduced evidence that Borge refused to
give a statement to the police. The prosecutor should have never asked the
question in the first place. The HSC held this was a “flagrant violation of
Borge’s due process rights” and the circuit court erred in denying the motion
to dismiss.
The prosecutor’s advisement was not a curative
instruction. In
a footnote, the HSC rejected the prosecution’s claim that the prosecutor’s
advisement at the end of Det. Clifton’s testimony was a curative instruction. According
to the HSC, a curative instruction can “sometimes” remedy prosecutorial
misconduct, but a “cure” generally comes from the judge, not the prosecutor.
HRS § 616-16(d) requires the court—not the prosecutor—to give grand jurors
information on the law as it deems necessary and proper. Furthermore, the HSC
held that the “advisement” was not a cure at all.
The restitution award was erroneous. Restitution in criminal
cases comes from HRS § 706-646:
(1) As used in this
section, “victim” includes any of the following:
(a)
The direct victim of a crime . . .;
.
. . .
(c) A governmental entity
that has reimbursed the victim for losses arising as a result of the crime or
paid medical care provided to the victim as a result of the crime[.]
.
. . .
(2) The court shall order
the defendant to make restitution for reasonable and verified losses suffered
by the victim or victims as a result of the defendant’s offense when requested
by the victim. . . .
(3) . . . Restitution
shall be a dollar amount that is sufficient to reimburse any victim fully for
losses, including but not limited to:
. . . .
(b) Medical expenses,
which shall include mental health treatment, counseling, and therapy;
. . . .
(d) Lost earnings, which
shall include paid leave.
The HSC found two errors below.
Restitution is limited to amounts claimed by
victims, not their family, the insurance company, or the hospital. A “victim” that can make a
restitution claim is ether the “direct victim of a crime” or a “governmental entity
that has reimbursed the victim for losses arising as a result of the crime or
paid for medical care provided to the victim as a result of the crime[.]” HRS §
706-646(1)(a) & (c). The complainant here is the direct victim of the
crime. But it does not include Maui Memorial or AlohaCare.
Moreover, the “victim” has to make the claim
pursuant to HRS § 706-646(2). See State v. Demello, 136 Hawai'i 193, 196,
361 P.3d 420, 423 (2015). In this case, the circuit court awarded close to $1.4
million in restitution to complainant even though the complainant did not
request restitution for the medical bills. The record shows that the claim came
from the complainant’s mother. That alone warranted vacating the restitution
order.
The amount itself is not a reasonable and verified
loss. Even
if the victim did claim it, restitution is limited to “reasonable and verified
losses” incurred by the victim. State v. Demello, 136 Hawai'i at 196,
361 P.3d at 423. The restitution here constituted billings from Maui Memorial even
though $204,174.49 was paid by AlohaCare and $996,283.16 was deducted in
adjustments and write-offs.
“Restitution shall be a dollar amount that is
sufficient to reimburse any victim fully for losses.” HRS § 706-646(3). The statute
does not define the term “losses” beyond a list of listed categories. In
construing an older version of the restitution statute, the HSC held that the total
amount “should be the actual loss or damage incurred by the victim.” State
v. Johnson, 68 Haw. 292, 295, 711 P.2d 1295, 1298 (1985). The HSC took a similar
approach:
The
plain language of HRS § 706-646(3) does not allow a restitution award to
include adjustments of bills written off by medical providers. The victim never
paid these amounts. Hence, the victim does not need to be “reimbursed” for
amounts never paid.
By the same token, this plain language does not allow a
restitution award to a direct victim to include medical expenses paid by an
insurer or indemnifier. A direct victim has not paid these amounts, so there is
nothing to “reimburse.”
HSC overrules Tuialii! In reaching this holding,
the HSC addressed State v. Tuialii, 121 Hawai'i 135, 214 P.3d 1125 (App.
2009). In that case, the ICA upheld a restitution award that included amounts already
paid by the victim’s insurer. Id. at 139, 214 P.3d at 1129. The ICA concluded
that lower courts “need not sort out insurance indemnities, subrogation rights,
and/or other potential civil law implications before ordering a thief or other
criminal to repay his victim under the criminal restitution statute.” Id.
at 142, 214 P.3d at 1132.
The HSC picked upon Justice Pollack’s dissenting opinion
in State v. Demello, 136 Hawai'i at 216 n. 24, 361 P.3d at 443 n. 24
(Pollack, J., dissenting), when he noted that gross receipts instead of net
income does not represent “actual loss” and should not be included. The HSC also
characterized the problem of including insurance payouts with the restitution
award as an improper importation of the collateral source rule, a common law
doctrine in tort law. Bynum v. Magno, 106 Hawai'i 81, 86 n. 11, 101 P.3d
1149, 1154 n. 11 (2004). The collateral source rule requires civil defendants
in tort cases to be responsible for the whole amount even though medical
expenses may have been paid in party by an independent or collateral source. Id.
Contrary to the ICA’s justification in Tuialii, the point of restitution
is to prevent injustice and unjust enrichment, not award “damages.” Small v.
Badenhop, 67 Haw. 626, 636 n. 12 & 13, 701 P.2d 641, 654 n. 12 & 13
(1985). The collateral source rule has no place in the law of victim
restitution.
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