Hawaii Legal News

Extensive Testimony on Speedometer Tests Holds (Fitz)water

2012-01-30T15:07:00.002-10:00

State v. Eid (HSC January 26, 2012)

Background. Hatem Eid was charged with excessive speeding. HRS § 291C-105(a)(1). At trial, the prosecution called Roy and Duane Ozaki as expert witnesses. The Ozakis owned and operated Roy's Automotive. They are licensed automotive mechanics and certified automobile technicians. Roy Ozaki testified that only he and Duane perform speed checks cars for HPD. At trial, Roy explained that to check the accuracy of the speed of a car, with a method called the speedometer dynamometer. He places the car on a bed of rollers. A cable connects the rollers to a master head with a speedometer. The car is started and rolls on the rollers, which causes the cable to give a reading to the master head. No computer software is involved. During this test, the speedometer in the vehicle is compared with the reading on the master head. Roy compares the reading at 10-mile-per-hour increments from 25 mph to 95 mph.

Roy further testified that in 2007, he noticed that the comparison readings were adequate up until 75 mph. After that, the car's speedometer reading was faster than the master head reading by up to 5 mph. Roy called the manufacturer of the master head in California about it, and turned in the machine in 2008. It was returned with a letter stating that before it was recalibrated, the manufacturer tested it and concluded it was in working order with a margin of error of two percent.

Roy wrote a speed check card for Officer Perez's vehicle. According to the card, the speed check was performed in July 2007--before it was turned into the manufacturer for re-calibration. The speed check card stated that there were no discrepancies at speeds up to 65 mph. Ultimately, the district court allowed the speed check card to be admitted. At trial, Officer Perez testified that he was pacing Eid on a street where the speed limit was 25 mph. According to Officer Perez, his speedometer on his 2004 Crown Victoria read 65 mph. Eid was found guilty. He appealed and the ICA vacated judgment and remanded with directions to enter finding of regular speeding. Chief Judge Nakamura dissented.

Establishing the Foundation of a Test Result. "[B]efore the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact." State v. Wallace, 80 Hawai'i 382, 407, 910 P.2d 695, 720 (1996). A test result is reliable when there is "a showing that the measuring instrument is in proper working order." Id. The HSC has held in the past that in order for an instrument to be in "proper working order," there must be some evidence that it was adequately calibrated through testimony of a service representative or some kind of business record of the manufacturer. State v. Manewa, 115 Hawai'i 343, 357, 167 P.3d 336, 350 (2007). Furthermore, before an out-of-court instrument result is admitted, the movant must also establish that the operator of the instrument "is qualified by training and experience to operate" the instrument. State v. Assaye, 121 Hawai'i 204, 215-16, 216 P.3d 1227, 1238-39 (2009).

That said, the foundational issue of a speed check card requires the prosecution to show "(1) how and when the speed check was performed, including whether it was performed in the manner specified by the manufacturer of the equipment used to perform the check, and (2) the identity and qualifications of the person performing the check, including whether that person had whatever training the manufacturer recommends in order to competently perform it." State v. Fitzwater, 122 Hawai'i 354, 376-77, 227 P.3d 520, 542-43 (2010).

Adequate Foundation that Machine in Proper Working Order. The HSC held that in this case, the Fitzwater foundation requirements had been met. In other words, "the State established that the speedometer dynamometer was in proper working order, and used by persons qualified to operate the device." The prosecution established Officer Perez testified he took his vehicle to Roy's Automotive for the test. Roy testified that the speedometer dynamometer is comprised of three components: the bed of rollers, the cable, and the master head. It is a strictly mechanical test. There is evidence that the instrument was in "proper working order." When Roy noticed a slight difference, he returned the master head to the manufacturer, which gave it an approval.

. . . and Operated by Qualified People. The HSC also held that Roy and Duane were qualified to operate the device. Roy's testimony that he had done several of these speed checks, and was an expert in automotive technology. This is sufficient foundation for the operation of the speedometer dynamometer.

So much for Manufacturer-Approved Qualifications? The HSC in Assaye made much ado about manufacturer-approved methods of calibrating a machine. When that came out, we raised the question of what would happen if there was no manufacturer-approved method. Here, it seems we may have found an answer: if there is no manufacturer-approved method, then any sufficiently qualified operator can use it properly. The HSC never specifically dispensed with the requirement from Assaye. Perhaps this means that if there is prima facie proof of

Justice Acoba's Concurrence. Justice Acoba agreed that there was an adequate foundation laid before the results of the speedometer were admitted at trial. He wrote separately to note that in Fitzwater, there was absolutely no evidence of the foundation for the accuracy of the officer's speedometer. He felt that it was unnecessary to delve into constitutional issues and even hearsay issues that were addressed in Fitzwater. This, wrote Justice Acoba, is the proper time to raise this sort of thing.

Prosecution must Disclose Name, Address of Witness to Rebut Alibi Defense (even if he was Initially an Alibi Witness)

2012-01-28T10:13:00.001-10:00

State v. Valeros (HSC January 27, 2012)

Background. Brandon Valeros was charged with assault in the 2d degree. HRS § 707-711(1)(d). Valeros allegedly beat Kenneth Ring with a collapsible metal baton outside Exotic Nights, a stripclub near Ward Avenue and Halekauwila Street on November 6, 2006. Before trial, Valeros filed a notice of alibi pursuant to Hawai'i Rules of Penal Procedure Rule 12.1. The prosecution, pursuant to the rule, responded that it would rely on Ring and his friend, who was with Ring when he was assault at 2:20 a.m. Valeros further responded that at that date and time, he was in the Club Electro parking lot in Pearl City with Jamison Benavides and Timothy Santiago. Valeros provided their contact information.

During pretrial, Valeros reported having a hard time getting in contact with Santiago. In the meantime, the prosecution's investigator found Santiago in Kalihi and Santiago told the investigator a statement that rebutted the alibi defense. The investigator's findings were never disclosed to Valeros. Shortly before trial, Valeros announced that he could not rely on Santiago because he could not be reached and that he would rely only on Benavides. During another conference held two days after Valeros' announcement, the prosecution found Santiago on the Big Island, but never told Valeros.

At trial, Ring testified that he and his friends started out at Femme Nu and then moved on to Exotic Nights. After that, he was hit by a "Polynesian" man with a collapsible metal baton. The man had others with him. Ring and his friends gave different descriptions of the assailant. After giving a description to the police, Miller caught a cab to the Zanzabar nightclub in Waikiki. There, he saw one of the men he believed to be involved in the assault. He told a nearby police officer and it turned out that one of the men Miller identified was Benavides. At 5:00 that morning, the three men rounded up in Waikiki were presented to Ring and Miller. Ring identified Valeros as his attacker.

Benavides and Valeros testified. According to them, they were with Santiago and Ryan Yamashita. They did not have a truck that night. They were at Club Electro until 2:00 a.m. They smoked cigarettes in the parking lot and piled into Yamashita's Honda Civic to Big Kahua, a nightclub in Waikiki. They parked by the zoo. Yamashita left and then the three of them were stopped by the police.

The prosecution wanted to present a rebuttal witness that was flown in for one day. This was the first time Valeros learned that Santiago was going to testify as a rebuttal witness. Valeros spoke with Santiago in order to ascertain what he would say, and Valeros objected to his testimony as a violation of HRPP Rule 12.1. Valeros argued that the prosecution had to provide written notice of its intent to call him. The prosecution argued that it was not required to provide any notice because Santiago was part of the initial disclosure by Valeros. The objection was overruled.

Santiago testified that he was at Club Electro with Valeros and Benavides. He was very drunk, but could recall chasing some guy on Ala Moana Boulevard. Because his testimony was so disjointed, the circuit court permitted the prosecution to call the investigator who interviewed Santiago in Kalihi. The investigator testified that Santiago told him that he was a passenger in a pickup truck and that they were chasing two guys toward Exotic Nights. Valeros was found guilty as charged. The ICA affirmed.

Special Procedures of Discovery for Alibi Defenses. When a defendant relies on an alibi defense, "the defendant shall . . . notify the prosecutor in writing of such intention and file a copy of such notice with the court." HRPP Rule 12.1(a). After that, the prosecutor and the defendant narrow down the disputed date, time, and place of defendant's presence. HRPP Rule 12.1(b). The defendant must also disclose the names and addresses of the alibi witnesses. "The prosecutor shall then inform the defendant in writing of the names and addresses of the witnesses upon whom [sic] the government intends to rely to establish the defendant's presence at the scene of the alleged offense." Id.

Prosecution must Disclose Name and Address of Rebuttal Witness

After the "defendant has furnished to the government the names and addresses of his [or her] alibi witnesses, defendant has a reciprocal right to discover the names and addresses of witnesses the government intends to rely on to rebut or discredit" the alibi witnesses. State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380 (1981). Here, the HSC held that the prosecution had to disclose to the defense Santiago's name and address as soon as it realized that it was going to rely on him to rebut the Valeros' alibi. The fact that Santiago was originally an alibi witness was irrelevant.

. . . and be Quick About it. The prosecution's obligation to notify the defendant about rebuttal witnesses must be given "promptly." HRPP Rule 12.1(d). The record showed that the prosecution first contacted Santiago months before trial in Kalihi. The record also shows that at the latest, the prosecution knew it was going to use Santiago during the pretrial conference two days after it learned that Valeros announced he could not find him. Instead, it waited for the defense to start its case before making this announcement. It was clear to the HSC that Valeros lost contact with its alibi witness, the prosecution found him, and then used him for its case. According to the HSC, the prosecution "concealed Santiago's new status as its new alibi-rebuttal witness" in violation of HRPP Rule 12.1(b). The HSC noted that "trial is hardly an end in itself; it is not a poker game in which players enjoy an absolute right always to conceal their cards until played[.]" State v. Sherman, 70 Haw. 334, 341, 770 P.2d 789, 793 (1989).

The Circuit Court's Last-Minute Interview is not a Proper Remedy. The HSC next held that the circuit court's solution--allowing Valeros' counsel to interview Santiago in the middle of trial--did not cure the discovery violation. HRPP Rule 12.1(d) imposes a continuing duty to promptly disclose witnesses. This, according to the HSC, is designed to "precisely avoid such mid-trial surprises." Moreover, the HSC noted that if Valeros knew about Santiago before trial, it could have adjusted the trial strategy to avoid an alibi at all. The vast discrepancies in the prosecution's witnesses in chief showed that it could have used an unreliable-identity defense. But by the time Santiago was revealed, that defense was forfeited. Given this prejudice, the mid-trial meeting and a continuance of trial would not have remedied the violation.

Fall on your Sword: the Good Cause Exception. HRPP Rule 12.1 is not ironclad. The court may grant an exception to the specific disclosure requirements under the rule "[f]or good cause shown[.]" HRPP Rule 12.1(f). In determining whether good cause, the court "balance[s] the interests of both the government and the defendant to give both an opportunity to discover on equal terms." State v. Davis, 63 Haw. at 198, 624 P.2d at 380-81. Here, no good cause was shown by the prosecution for its violation. Thus, the circuit court abused its discretion in exempting it from discovery obligations. This should provide some hope for any party that finds itself in this bind. If there is a good reason for it, the circuit court can make exceptions to the requirements. But that would require acknowledgement of a violation. Here, it seems unlikely that the prosecution did such a thing.

The Error is not Harmless. An error cannot be harmless if there is "a reasonable possibility that [the] error might have contributed to the conviction." State v. Veikoso. Here, the HSC held that the error was not harmless because there was no "direct testimony" that overwhelmingly contradicted the alibi defense. See State v. Ah Choy, 70 Haw. 618, 780 P.2d 1097 (1989). The prosecution's witnesses in chief had multiple inconsistencies in their descriptions of the assailant despite their identification of Valeros, and no metal baton was found. Santiago's testimony--albeit indirectly--provided evidence that they were chasing two men near Exotic Nights. This, according to the HSC, proved to be a pivotal role in the case and reasonably might have contributed to Valeros' conviction.

Resurrecting a Property-Based Fourth Amendment Analysis

2012-01-24T11:22:00.001-10:00

United States v. Jones (SCOTUS January 23, 2012)

Background. Antoine Jones owned and operated a nightclub in the District of Columbia. He was suspected by the FBI and the DC police of trafficking narcotics. The police used a bevy of investigative techniques like visual surveillance of the nightclub, cameras at the door of the club, a pen register and a wire tap of Mr. Jones' phone. The government applied for a warrant to install on Jones' Jeep Grand Cherokee an electronic tracking device or Global Positioning System (GPS). The warrant authorized installation of the device in DC and was limited to 10 days. Eleven days after the warrant was issued the government installed the device in the State of Maryland. For the next 28 days, the government tracked the vehicle. During that time, the government replaced the battery of the GPS in a public parking lot in Maryland.

The government ultimately brought charges of cocaine trafficking. Jones filed a motion to suppress the evidence obtained pursuant to the GPS. The motion was granted in part and suppressed only evidence that was obtained while the vehicle was parked in Jones' residential garage. The rest was deemed admissible. Jones' trial resulted in a hung jury. The government returned another indictment and the same evidence was used. The evidence linked Jones to $850,000 in cash and 97 kilograms of cocaine. This time, the jury found Jones guilty and he was sentenced to life imprisonment. Jones appealed and the DC Circuit reversed the conviction. The government applied for a writ of certiorari.

The Fourth Amendment Protects Reasonable Privacy Interests and Property Interests too. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Am. IV. A vehicle is an "effect" for purposes of a Fourth Amendment analysis. United States v. Chadwick, 433 U.S. 1 (1977). Justice Scalia, writing for the court, explained that the government "physically occupied private property for the purpose of obtaining information." This kind of physical intrusion was a search. Relying on an 18th-century English principle in property and SCOTUS cases predating Katz v. United States, 389 U.S. 347 (1967), the majority held that at a minimum the Fourth Amendment requires the government to get a warrant before physically intruding upon a person's property. The actions by law enforcement clearly intruded upon the person's property. The installation of a tracking device on a vehicle and using that device to monitor its movements is a "search" requiring a warrant. The reason is based not on the reasonable-expectation-of-privacy test from Katz, but rather the older property-based protection against governmental trespass. Thus, the D.C. Circuit should be affirmed.

Justice Alito's Concurrence asks What's Wrong with Katz? Justice Alito agreed that the D.C. Circuit should be affirmed. The government needed a warrant before installing the GPS on Jones' jeep. But he criticized Justice Scalia's analysis that in addition to Katz there is the older protection from governmental intrusion onto another's personal property. Justice Alito accused the majority of applying antedated tort law. "By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels." Justice Alito thought it "unwise" to supplement the Katz formulation with a throwback to property law. Instead, Justice Alito believed that the case should be decided under Katz and only Katz. And under Katz, there is a reasonable expectation of privacy in a person's vehicle when it comes to this kind of long-term monitoring. Justice Alito explained that a hypothetical reasonable person's expectations of privacy change with the influx of new technologies. The expectations are not static. These new technologies like smart phones and the wide dissemination of digital information have shaped the average person's expectations of privacy. What complicates things, wrote Justice Alito, is that "judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person[.]" Here, the 28-day monitoring of a person's vehicle without a warrant violated the reasonable person's expectation of privacy and a warrant was required. Justices Ginsberg, Breyer, and Kagan joined Alito.

Justice Sotomayor's Concurrence. Justice Sotomayor agreed in large part with Justice Alito's analysis. She opened the discussion to the ever-changing concept of privacy in the digital age. There is a lot of information about people that is voluntarily disclosed and put out there into the world, and yet people still consider that information private. She was careful to note that in today's world secret should not be considered the same thing as private. She even hinted that it will be necessary to reconsider whether a person has a reasonable privacy interest in voluntarily-disclosed information. "I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." But these issues should be left for another day. Instead, she agreed with the majority's view that the Fourth Amendment, at a minimum, requires a warrant when the government physically intrudes onto another's property. And so she voted with Justice Scalia.

Why Did she do it that way? Justice Sotomayor was the deciding vote in this. Justice Scalia had Justices Kennedy and Thomas, Chief Justice Roberts in addition to her vote. That made it a bare majority of five. She agreed that the physical intrusion was enough to require a warrant. Justice Sotomayor's concurrence does not speak at all to the property-based, pre-Katz approach. In fact, she seems much closer to Justice Alito's opinion. Her vote is baffling. By siding with Scalia's two-test approach--Katz and the old-time trespass--she has clouded the doctrinal waters. Justice Sotomayor could have easily sided with Justice Alito's application of Katz (and only Katz), and have written her concurrence noting that there will come a day when the SCOTUS will have to re-evaluate the reasonable expectations of privacy in voluntarily disclosed information. It would have left this throwback to pre-Katz jurisprudence in the dust. Now, thanks in large part to Justice Sotomayor's concurrence, the property analysis walks again.

Allegations of Constitutional Violations STILL have to go Through the HLRB

2012-01-18T22:10:00.002-10:00

HSTA v. Abercrombie (HSC January 17, 2012)

Background. During her last term, Governor Lingle issued a unilateral executive order that furloughed all state employees, restricted spending by the Department of Education, and the University of Hawai'i. The Hawai'i State Teachers Association and the United Public Workers union filed a complaint alleging that the executive order violated the right of public employees to organize under Hawai'i Constitution Art. XIII, Sec. 2, the right to accrued retirement benefits under Haw. Const. Art. XVI, sec. 2, and a violation of the separation of powers. The unions moved for a temporary restraining order, which the circuit court granted in part. Lingle filed a motion to dismiss on the grounds that the Hawai'i Labor Relations Board (HLRB) had exclusive jurisdiction over these matters pursuant to HRS chapter 89. The circuit court rejected the argument, and concluded that the management rights pursuant to HRS § 89-9(d) did not allow Lingle to unilaterally furlough employees. Still, it dismissed a portion of the complaint. The unions appealed the dismissal. Lingle cross-appealed and argued there was no jurisdiction. Before the ICA could decide the matter, the unions applied for a transfer to the HSC, which was granted.

Even when the Questions are Solely Constitutional, Go to the HLRB First. In HGEA v. Lingle, 124 Hawai'i 197, 239 P.3d 1 (2010), the HSC held that the HLRB has exclusive jurisdiction over issues relating to HRS chapter 89--collective bargaining rights. The circuit court should not have ruled on these matters and instead "deferred ruling on the constitutional issues until after the HLRB had the opportunity to resolve the statutory questions." Id. at 200, 239 P.3d at 4. In that case, the complaint raised both statutory issues and constitutional ones.

. . . Even when the Complaint does not Refer to any Statutes. The issue in this case, according to the HSC, was whether the HLRB had exclusive jurisdiction even though the complaint did not allege any statutory-related questions and only raised constitutional violations. "Any controversy concerning prohibited practices may be submitted to the [HLRB] . . . provided that the board shall have exclusive original jurisdiction over such a controversy[.]" HRS § 89-14. Prohibited practices include the refusal to bargain in collectively in good faith, participate in good faith in mediation and arbitration, violate the collective bargaining agreement, or refuse or fail to comply with any provision in HRS chapter 89. HRS § 89-13.

The HSC noted that the unions' complaint made absolutely no reference to HRS chapter 89. Instead, it alleged constitutional violations. Nonetheless, the reasoning underlying HGEA is the same and the HLRB has exclusive jurisdiction. According to the HSC, the plain language of HRS § 89-14 clearly shows that the allegations in the complaint amount to a "controversy concerning prohibited practices."

Why Neil? This is an old dispute between Lingle and the unions. So why is Governor Abercrombie's name on it? While the case was pending on appeal, Lingle left office and Abercrombie was elected and inaugurated. The answer, refreshingly, is clear. "When a public officer is a party to an appeal or other proceeding in the Hawai'i appellate courts in his or her official capacity and during its pendency dies, resigns, or otherwise cases to hold office, the action does not abate and his or her successor is automatically substituted as a party." HRAP Rule 43(c)(1). So ironically, Neil Abercrombie, who promised to end furloughs and enjoys a great relationship with unions, has his name on this one.

How come it's not Moot? And what about the new administration? Unless Abercrombie wanted Lingle's position to prevail, it could have argued that the issue was moot. It would seem to be a good case for the mootness doctrine. After all, the issue of furloughs are long gone. This news is almost as old as the Superferry. Unlike the HGEA opinion, which had a mootness analysis, the HSC here made no reference to the doctrine (or its public-interest exception).

Justice Acoba's Dissent. Justice Acoba dissented. However, his opinion has not been made available yet.

Defendants can Argue that the Settled Tortfeasor is Solely Responsible

2012-01-17T21:01:00.001-10:00

Adams v. Yokooji (ICA January 13, 2012)

Background. One night in Kailua Stephen Adams got out of a taxi cab and was crossing Kalanianaole Highway in a crosswalk in order to catch the bus when he was hit by a car driven by Robynn Yokooji. Adams' estate sued Yokooji, the Department of Transportation, and Luteru Manu, the taxi driver. Adams claimed that the DOT owed a duty to properly design and maintain the crosswalk and roadway and breached that duty. Adams settled with Yokooji and Manu, and prepared for trial against the DOT.

Adams filed a motion in limine; the motion sought an order precluding the DOT from introducing evidence to establish or infer liability or negligence of the settled defendants. The circuit court granted the motion and prohibited the DOT from using any evidence or arguing that the accident was entirely caused by the settled defendants. During the opening statements, Adams said that the DOT's maintenance of lighting, traffic signs, and crosswalk signage would show its negligence. The DOT countered during its opening that the lighting and signage were not causes of the accident. In fact, according to the DOT, there was evidence that the lights were in perfect working order that night. Adams immediately objected and argued that that evidence served no purpose other than to show that Yokooji was solely at fault. The circuit court permitted the DOT to continue with its opening.

The DOT moved onto state that Helen Rasay was driving behind Yokooji and saw Adams crossing the road. Adams objected again on the same grounds. The circuit court overruled the objection. The DOT moved onto discuss its expert who would testify about the "line of sight" establishing that Yokooji should have been able to see Adams. Again, Adams objected. The DOT finally maintained that without this evidence, it would not be able to defend itself. After the DOT finished its opening statement, the circuit court permitted Adams to file an interlocutory appeal to resolve the issue.

The Effect of Settling with only one Joint Tortfeasor. A good-faith settlement with a joint tortfeasor shall "not discharge any other joint tortfeasor or co-obligor not released from liability unless its terms so provide[.]" HRS § 633-15.5(a)(1). The statute also reduces "the claims against the other joint tortfeasor . . . and [d]ischarge[s] the part to whom it is given from all liability for any contribution to any other joint tortfeasor or co-obligor." HRS § 633-15.5(a)(2)-(3). Moreover, a good-faith settlement bars other tortfeasors from claims against the settling tortfeasor and dismisses all cross-claims filed against the settling joint tortfeasor. HRS § 633-15.5(d); see also Troyer v. Adams, 102 Hawai'i 399, 77 P.3d 83 (2003).

The Remaining Claim Against the DOT. The plaintiff has the burden of proving the elements to a negligence action--duty, breach of duty, causation, and damages. Takayama v. Kaiser Found. Hosp., 82 Hawai'i 486, 498-99, 923 P.2d 903, 915-16 (1996). Here, the Plaintiffs planned on showing that the DOT's negligence brought about Adams' death. The DOT, however, intended to show that it was not a joint tortfeasor and that it did not cause the accident. In order to challenge the causation element, the DOT has to show that it was not bad lighting but driver inattentiveness that brought about the death. The ICA determined whether the DOT should be permitted to present evidence rebutting Adams' causation evidence. The ICA answered in the affirmative.

Evidence that the Settled Defendant was Solely Responsible is not Precluded by Statute. The ICA held that evidence pointing the finger directly at a defendant who already settled before trial is not barred by HRS § 633-15.5. The ICA relied on precedent from Illinois. Leonardi v. Loyola Univ. of Chicago, 658 N. E. 2d 450, 459 (Ill. 1995) ("if there is evidence that negates causation, a defendant should show it."); Nolan v. Weil-McLain, 910 N. E. 2d 549, 564 (Ill. 2009) ("the plaintiff exclusively bears the burden of proof to establish the element of causation through competent evidence, and that a defendant has the right to rebut such evidence and to also establish that the conduct of another causative factor is the sole proximate cause of the injury."); Ready v. United/Goedecke Services, Inc., 939 N. E. 2d 417, (defendant may "present evidence that the injury was the result of another cause.") (Ill. 2010).

The Right to Rebut a Plaintiff's Claim is far from Revolutionary. The ICA expressly adopted the Illinois precedent. In doing so, the ICA seems to have impliedly held that just as much as the plaintiff has a right to bring the action and prove negligence claims--including the causation element--the defendant has the right to rebut that element with evidence negating causation. This is far from revolutionary. It is not a new defense at all. HRS § 663-15.5 does not discuss what evidence is admissible at trial, but rather the legal effect of settling with a joint tortfeasor.

So what does the Statute do? The ICA, in a footnote, stated that if the DOT's evidence is insufficient and Adams prevails, the statute prevents the DOT from recovering against the settled defendants.

A Known or Obvious Danger is not a Defense in Premises Liability Action (Anymore)

2012-01-09T09:04:00.002-10:00

Steigman v. Outrigger Enterprises (HSC December 15, 2011)

Background. Michele Steigman and her family were guests at the Ohana Surf hotel in Honolulu. One rainy afternoon, Steigman went onto the lanai of their hotel room to get a chair. She slipped on the surface of the lanai and injured her foot when it got stuck under the railing. She brought a negligence claim against the hotel under a theory of premises liability. At trial, Steigman presented expert testimony that the lanai's surface had substandard "friction coefficiency." Her daughter testified that the lanai was glossy and hard to tell if it was wet or dry. An Outrigger employee testified about a similar slip and fall on a lanai at the hotel. Outrigger argued to the jury that the injury was caused entirely by Steigman's own negligence. According to Outrigger, the wet lanai was a known or obvious danger.

Over Steigman's objection, Outrigger proposed that the circuit court instruct the jury that a "danger is open and obvious when a party either knew or should have known of it. Whether the Plaintiff actually discovered the danger is irrelevant." Outrigger's proposed instruction was based on the known or obvious danger defense described in the Restatement of Torts. The circuit court gave the instruction. The jury found no liability. The circuit court entered judgment in favor of the defense and ordered Steigman to pay $29,722.30 in costs. Steigman appealed and the ICA affirmed.

The Known-or-Obvious-Danger Defense. Under the common law, a plaintiff cannot recover at all if the plaintiff is injured due to a known or obvious danger. Friedrich v. Dept. of Transp., 60 Haw. 32, 36, 586 P.2d 1037, 1040 (1978). It is a complete bar and the plaintiff cannot recover even if the plaintiff was extremely cautious and even if the defendant was aware of the danger. Id. at 36 n. 1, 586 P.2d at 1040 n. 1. Steigman argued that this defense is incompatible in Hawai'i jurisprudence and cannot bar recovery. The HSC agreed.

The Comparative Negligence Statute Does not Expressly Bar it . . . but Comes Close. The HSC first turned to HRS § 663-31, which abrogated the common-law doctrine of contributory negligence and replaced it with comparative negligence. "Contributory negligence shall not bar recovery in any action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property[.]" HRS § 663-31(a). According to the HSC, the statute does not expressly include or exclude actions involving known or obvious dangers. Thus, it turned to the legislative intent underlying the statute. The statute, according to the HSC, was intended "to temper a phase of the common law deemed inconsistent with contemporary notions of fairness. Its purpose was to allow one partly at fault in an accident resulting in injury to be recompensed for the damages attributable to the fault of another if the former's negligence was not the primary cause of the accident." Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 405, 642 P.2d 930, 933 (1982).

A Very Brief History of Premises Liability in Hawai'i. The HSC offered a history of premises liability in Hawai'i. Up until 1969, Hawai'i followed the common-law rule that premises liability hinged on the legal status of the injured person. For example, an occupier of land or landowner owed a greater duty to those coming onto the land for business purposes than those who were social guests or mere "licensees." Prosser & Keeton, Law of Torts, §§ 60 and 61, 412, 415 (1984). This all changed in Pickard v. City and County of Honolulu, 51 Haw. 134, 135, 452 P.2d 445, 446 (1969), where the HSC imposed upon landowners a single "duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual."

According to the HSC, the reason for the departure from ancient common law was based on two distinct principles. First, courts had difficulty applying the common-law classifications consistently. See Kermarec v. Compagnie Generale Transatalantique, 358 U.S. 625, 630-31 (1959). Second, the common-law doctrine was out of step with modern values. See Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968). The HSC adopted these two principles outlined in Pickard to determine whether the common-law defense applies.

Spotty Application of the Defense. The HSC first noted that the few times the appellate courts examined the defense, its application was inconsistent and, thus, difficult to apply. In Freidrich, the HSC affirmed a summary judgment to the defendant based on an assertion of the defense. But in Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968), the court reached the opposite result even though the facts were similar. Finally, in Bidar v. Amfac, 66 Haw. 547, 669 P.2d 153 (1983), a dissenter from the majority would have held that the type of hazard--leaning on a towel rack--was a known or obvious danger and would have ruled for the defense on summary judgment. The HSC acknowledged similar inconsistencies in other jurisdictions. Woodard v. ERP Operating Ltd., P'ship, 351 F.Supp. 2d 708 (E. D. Mich 2005); Rogers v. Spirit Cruises, Inc., 760 N.Y.S. 2d 280 (App. Term 2003); Groleau v. Bjornson Oil Co., Inc., 676 N.W.2d 763 (N. D. 2003); O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985).

And Bad Public Policy. The HSC also recognized that the defense makes against public policy. "If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger." Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994). Tort law in general, according to the HSC, is premised on sound public policy. See Francis v. Lee Enterprises, Inc., 89 Hawai'i 234, 239, 971 P.2d 707, 712 (1999) ("tort law is primarily designed to vindicate social policy."); Fonseca v. Pacific Const. Co., 54 Haw. 578, 513 P.2d 156 (1973). And tort law seeks to prevent injury by providing an incentive to deter negligent conduct. Smith v. Cutter Biological, Inc., 72 Hawai'i 416, 435, 823 P.2d 717, 727 (1991). The HSC stated that allowing a landowner to escape liability as a matter of law, does not deter negligent conduct. Thus, the defense is inconsistent with the policy underlying tort law.

A Two-Prong Test for Departing from Common-Law? Has the HSC provided us with a test to determine whether a common-law doctrine should be abandoned? It outlined two principles underlying the departure from common-law classifications in Pickard and applied them to justify its departure from the common-law defense. Does the same two-prong test apply for other arguably antiquated common-law doctrines? Maybe. But then again, how many arguably antiquated common-law doctrines are still left?

Abandoned or Abolished? The HSC made it clear that HRS § 663-31, did not expressly abolish the defense and so it had to determine whether to abandon deeply-entrenched common law. According to the HSC, HRS § 663-31--which abolished contributory negligence--did not expressly cover actions involving known or obvious dangers. This is a little strange because the statute says that contributory negligence does not "bar recovery in any action by any person . . . to recover damages for negligence resulting in death or injury to person or property[.]" Wouldn't an action involving a known or obvious danger be considered an "action . . . to recover damages for negligence"? The HSC did not explain why that language failed to cover the defense.

The Other Stuff. This was not the entire analysis. The HSC went into careful detail explaining why abandoning this common-law defense was appropriate. It particularly noted that the known or obvious dangers to the premises are subsumed other elements of a negligence claim.

Justice Acoba's Concurrence. Justice Acoba agreed that the defense should be abandoned. He wrote separately because took issue with the cross-examination of Steigman's expert and other evidentiary problems that arose at trial. He felt it was important to analyze these issues because the case was sent for retrial.

Abandoned Property is not "Property of Another" (but Grand Jury Need not know who the Other is to Indict)

2011-12-24T15:24:00.001-10:00

State v. Taylor (HSC December 15, 2011)

Background. Daniel Taylor was prosecuted by the federal government for violating the Native American Grave Protection Act (NAGPRA), 18 USC § 371. Taylor pleaded guilty for conspiring to sell, use for profit, and transport for sale and profit "Native American cultural items." He was sentenced to eleven months of imprisonment and one year of supervised release.

One year later, the State prosecuted Taylor for theft in the first degree. HRS § 708-830(1) and HRS § 708-830.5(1)(a). At the grand jury proceeding, the prosecution called only one witness. Abraham Kaikana was an agent for the Attorney General's Office. Agent Kaikana testified that back in the "1800s," a surveyor named Joseph Swift Emerson was shown Kanupa Cave on the Big Island. Inside the cave, Emerson removed artifacts and sold them to the Bishop Museum and the Peabody Essex Museum in Massachusetts. According to Agent Kaikana, Emerson tagged the items he took from the cave. Eventually, the items were "repatriated from" the museums and "reburied" in the cave. Groups like the State, "Hui Malama," "OHA," and the Bishop Museum were involved in the reburial.

Agent Kaikana testified that Taylor and his wife owned an antique shop in Captain Cook on the Big Island. He told the jurors that Taylor went to the cave, removed a rock blocking the entrance to the cave, and found artifacts and items in a lauhala basket. Some of these items had Emerson's tags on them. He took them from the cave and tried to sell them. The estimated value of the items ranged from $800,000 to $2 million. The grand jury returned a true bill.

Taylor filed a motion to dismiss on the grounds that there was no evidence establishing that the items at issue were "property of another" as defined in HRS § 708-800. Taylor also argued that the prosecution was barred by HRS § 701-112. The motion was denied. The circuit court allowed an interlocutory appeal. The ICA affirmed on the grounds that "only evidence that the property was not that of Taylor is required."

Theft Requires "Property of Another" is more than just "Property." "A person commits the offense of theft in the first degree if the person" commits theft of property worth over $20,000. HRS § 708-830.5(1)(a). A person can commit theft by obtaining or exerting "unauthorized control over the property of another with the intent to deprive the other of the property." HRS § 708-830(1). Taylor argued that the prosecution did not present any evidence that the property taken out of the cave belonged to anyone. Thus, according to Taylor, it could not be "property of another."

The HSC held that the ICA erred in concluding that mere proof that the property was not the defendant's was sufficient evidence to sustain the indictment. "Property of another" is property "which any person, other than the defendant, has possession of or any other interest in[.]" HRS § 708-800. The HSC agreed with Taylor that "property of another" is more than just "property." Abandoned property, for example, would not be "property of another."

But there was Sufficient Evidence that the Items were "Property of Another." The HSC, however, disagreed with Taylor that there was insufficient evidence. "A grand jury indictment must be based on probable cause." State v. Ganal, 81 Hawai'i 358, 367, 917 P.2d 370, 379 (1996). "Probable cause" means "a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." Id. Although proof that the property belonged to another is required, "[t]he particular ownership of the property in question was not an essential element in proving the crime[.]" State v. Nases, 65 Haw. 217, 218, 649 P.2d 1138, 1139-40 (1982). Here, there was enough evidence showing that the valuable and carefully wrapped items taken from the cave belonged to another. Although there was no evidence showing that OHA, Hui Malama, or any of the other groups had a distinct possessory interest in the property, there was still enough, according to the HSC, to at least sustain the indictment.

The Abandoned Property Defense. Abandoned property cannot be "property of another." The HSC noted that "abandoned property" generally means property "which the owner has voluntarily relinquished all right, title, claim, and possession, with the intention of terminating his or her ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein." 1 Am. Jur. 2d Abaondoned, Lost, and Unclaimed Property § 3 (2005).

Here, the HSC held that there was enough to at least sustain the indictment and carry it forward to trial. So what does the prosecution have to prove at trial? Simply that the property is that "of another." It means it would have to disprove beyond a reasonable doubt that the property is not abandoned. Whether the prosecution can establish proof beyond a reasonable doubt that the artifacts were not abandoned and belonged to another person must be resolved at trial.

State Prosecutions Barred if the Initial Prosecution was based on Same Conduct . . . Generally. When conduct is an offense in this state and in another concurrent jurisdiction, the subsequent State prosecution based on the same conduct is barred when that initial prosecution resulted in a conviction or an acquittal that was not set aside. HRS § 701-112(1). However, the State prosecution can go forward only if "[t]he offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil[.]" HRS § 701-112(1)(a).

The Two-Prong Exception: Proof of Facts not Required by the Initial Prosecution. Taylor argued that the State's theft prosecution was barred and the exception was not met. The HSC--without determining whether the initial bar had been met--went straight to addressing the exception. When a statute is "plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." Awakuni v. Awana, 115 Hawai'i 126, 133, 165 P.3d 1027, 1034 (2007). First, it determined whether the theft prosecution required "proof of fact not required" by the NAGRPA prosecution. Theft in the first degree requires proof that the defendant committed theft of "property or services, the value of which exceeds $20,000[.]" HRS § 708-830.5(1)(a). This is an essential element. State v. Duncan, 101 Hawai'i 269, 279, 67 P.3d 768, 778 (2003). Taylor pleaded guilty to trafficking and conspiracy under NAGPRA. 18 U.S.C. §§ 371 and 1170(b). According to the HSC, Taylor's federal prosecution did not require any proof whatsoever that the property at issue were worth more than $20,000. The HSC also rejected Taylor's argument that the memorandum of facts in his plea agreement contained all the facts needed to prove the theft charge. The HSC reasoned that even thought the value of the items were in the memorandum, they were not necessary to prove the NAGPRA offenses.

The Other Prong: Determining the Intended Harm or Evil. The second prong to the exception, however, was not met. The two prosecutions were intended to prevent substantially different harms or evils. When determining the harm or evil a statute is intended to prevent, the court examines the language of the statute. State v. Rapozo, 123 Hawai'i 329, 338, 235 P.3d 325, 334 (2010); State v. Kupihea, 98 Hawai'i 196, 206, 46 P.3d 498, 508 (2002). The purpose of the theft statute, according to the HSC, is to protect owners "from the deprivation of their property[.]" State v. Freeman, 70 Haw. 434, 439, 774 P.2d 888, 892 (1989). Conspiracy, on the other hand, is intended to prevent a very different harm or evil--the threat of agreements to commit a crime. See United States v. Feola, 420 U.S. 671, 693-94 (1975). The same with NAGPRA, which is intended to "assist Native Americans in the repatriation of items that the tribes consider sacred[.]" United States v. Corrow, 941 F.Supp. 1553, 1567 (D. N. M. 1996). It is not intended to address the unlawful taking or destruction of property. Id. Thus, the state theft statute is intended to prevent a substantially different harm or evil than that which was intended by NAGPRA and the conspiracy statute. Thus, the exception was met and the State prosecution was not barred by the federal guilty plea.

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the majority that the State theft prosecution was not barred by HRS § 701-112. However, he disagreed that there was sufficient evidence that the artifacts were "property of another." "Property of another" is defined as "property which any person, other than the defendant, has possession of or any other interest in[.]" HRS § 708-800. According to Justice Acoba, the words "any other interest" must mean a property interest. Moreover, Justice Acoba wrote that if the language meant anything other than a property interest, the statute would be void for vagueness and in violation of due process. State v. Manzo, 58 Haw. 440, 454, 573 P.2d 945, 954 (1977); State v. Petrie, 65 Haw. 174, 649 P.2d 381 (1982). Thus, the prosecution had to present some evidence that another had a distinct property interest in the artifacts. According to Justice Acoba, there was no evidence that would allow the grand jury to find any evidence that another had a property interest. The artifacts were reburied, and the cave was sealed with a rock. The prosecution's evidence that "Hui Malama, OHA, the Bishop Museum, and the State" had a cultural or some "other interest" was insufficient for Justice Acoba. Allowing the prosecution to simply assert some kind of vague "cultural" or "other" interest and switch theories throughout the appellate process in its argument, wrote Justice Acoba, "unfortunately lends credence to the often-repeated criticism that the grand jury has become a rubber stamp." See State v. Kahlbaun, 64 Haw. 197, 203, 638 P.2d 309, 315 (1981).

Why a Plaintiff Brings a Lawsuit Cannot be Considered by the Jury.

2011-12-04T06:49:00.001-10:00

Kobashigawa v. Silva (ICA December 2, 2011)

Background. William Kobashigawa was walking across Kamehameha Highway in a crosswalk in Kaneohe, when a truck driven by Joseph Silva hit him. Kobashigawa died. Gina Bailey was a witness. The estate of Kobashigawa and family sued Silva and the City and County of Honolulu. The Kobashigawas claimed negligence, negligent infliction of emotional distress, and loss of consortium. The Kobashigawas alleged that the City was negligent in the design of the highway with poor lighting in the crosswalk. The Kobashigawas settled with Silva and went to trial against the City. At trial, portions of Bailey's deposition were read to the jury. Also at trial, the City was allowed to use evidence on possible motives for bringing the suit. The jury found that the City was not negligent, and the circuit court awarded the City with costs. The Kobashigawas appealed.

A Plaintiff's Motives for Bringing a Lawsuit Cannot be Considered by the Jury. At trial, the circuit court gave this instruction:

You have heard testimony from one witness about certain statements attributed to a Kobashigawa family member following Mr. Kobashigawa's death. Your consideration of this evidence is limited to determining the existence or absence of any possible bias, interest or motive, if any, by [the Kobashigawas] in bringing this lawsuit and not for any other purpose.

The Kobashigawas did not object to the instruction at trial, and argued for the first time on appeal, that this instruction was erroneous and constituted plain error. The ICA agreed on both points.

The ICA held that this instruction was an erroneous statement of law. According to the ICA, "the motives of the plaintiffs are immaterial absent bad faith." Carter v. Ah So, 12 Haw. 291, 302 (Haw. Rep. 1899) ("So far as the law is concerned, if the plaintiff has made out a case on the facts, it is immaterial what [the] motive was."); Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010) ("motive of a party in bringing an action generally is immaterial to the question whether the action may be maintained."); Sommers v. AAA Temp. Servs., Inc., 284 N.E.2d 462, 465 (Ill. App. Ct. 1972) ("It is generally accepted that where the plaintiff asserts a valid cause of action, . . . motive in bringing the action is immaterial."). Simply put, the jury cannot consider the motives of the Kobashigawas "absent bad faith."

It's Plain Error. In a civil case, appellate courts look to three factors in considering whether a trial court committed plain error: "(1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the integrity of the trial court's findings of fact; and (3) whether the issue is of great public import." Montalvo v. Lapez, 77 Hawai'i 282, 290, 884 P.2d 345, 353 (1994). The ICA weighed these three factors and held that the instruction was plain error. The first factor was satisfied. The circuit court gave the instruction. That was all that was needed to consider the issue. As for the second factor, the ICA held that because the trial court has a duty to properly instruct the jury on the law, id. at 291, 884 P.2d at 354, the second factor was met. In other words, it seems like the issue affects the findings of fact. Finally, the ICA held that the issue was of great public import.

The Improper Comments at Closing Argument Exacerbated the Erroneous Instruction. During closing argument, the City mentioned that when Bailey called the Kobashigawas days after the accident, the Kobashigawas immediately asked Bailey if she was going to testify when they sue. That, argued the City, horrified Bailey and she immediately hung up. The City then argued that "this case simply [is] about getting a collectable monetary award from the City when it was [Silva] who caused the accident[.]" This comment, according to the ICA, added to the harm caused by the erroneous jury instruction. Thus, the circuit court erred in allowing the City to comment in its closing argument on the Kobashigawas' motives for bringing the lawsuit. See Kakligian v. Henry Ford Hosp., 210 N.W.2d 463, 465 (Mich. Ct. App. 1973).

A Tragedy of Errors? The ICA clearly stated that a plaintiff's motives for bringing a good faith lawsuit are immaterial and cannot be considered by the jury. That meant that the jury instruction was an erroneous statement of law. Furthermore, even though it was not objected to at trial, it was so significant, that it constituted plain error. Fine. But then the ICA held that the circuit court erred in allowing the City to make a comment touching upon the Kobashigawas' motives because it "added to the harm" of the erroneous instruction. Shouldn't that error--allowing the comment--be an error onto itself because it urged the jury to consider the motives of the plaintiff? Why should it be error just because of the jury instruction? What if there was no such instruction? It would seem that the error in allowing the comment can stand on its own. (Whether it is plain error is an entirely different question). But to link it to the jury instruction complicates things.

What if there was no comment, and only an instruction? Is the error still plain? Maybe. The ICA did not take the comment into consideration when it weighed the Montalvo factors. Separating these out may never be resolved, but the basic principle is pretty clear: the plaintiff's motives in bringing the suit are off limits so long as the suit is in good faith.

ICA: Grand Jury Counsel Misconduct Could Trigger Dismissal of Indictment (just not in this case)

2011-11-24T10:56:00.003-10:00

State v. Griffin (ICA November 22, 2011)

Background. Darnell Griffin was charged with murder in the second degree and sexual assault in the first degree. On September 5, 1999, Evelyn Luka went out to her regular nightspot, the Venus Nightclub on Kapiolani Boulevard. Her husband, Kevin, stayed home. The Lukas agreed that she would be home by midnight. At around midnight, Luka called Kevin and told him that she was staying an hour longer and was going to get a ride home with a friend from Salt Lake. Venus employees remember seeing a woman matching her description there, and recalled that she left at around midnight with an African-American man in a dark green Nissan Pathfinder. Luka never came home. Kevin called Venus several times, but they ignored his call.

The next morning, at around 8:00 a.m., a commuter on the H-2 near the Ka Uka Boulevard on-ramp saw something on the side of the road near the on-ramp. The commuter and two off-duty police officers went to the area and found a woman lying face down on the ground convulsing. She had a hard time breathing and trembling. She was taken to the hospital. Before leaving, the police saw an African-American man near the area standing outside of his vehicle. Before they approached him, he went into his car and drove off.

Doctors found evidence of sexual abuse, but an examination showed no scarring, bruising, or discoloration around her genitals. They found no sperm on her body either. Luka was in a coma and taken off life support, and the murder investigation began.

The case drew no leads and went cold for two years. Detective Sunia took over the case submitted samples taken from Luka's body for DNA analysis. The DNA showed spermatozoa from an unidentified male. The sample was put onto a general DNA database. Months later, the DNA database indicated that the sample identified Griffin. Det. Sunia learned that in 1999, Griffin owned a 1996 Nissan Pathfinder. Griffin was arrested in 2007. At the police station, an officer overheard him talking to his wife. He was heard saying to his wife to "clean the car, clean the car."

The Grand Jury Hearing. At the grand jury hearing, Det. Sunia testified. A juror asked her when Griffin was first interviewed by the police. The prosecutor stopped the questioning and said that the grand jury counsel should answer that question. The grand jury counsel arrived and jurors started to ask when the police started questioning Griffin and wondered why they did not test the DNA back in 1999. The grand jury counsel was unsure, but told the jury that there was a newspaper article about the case. As for not testing the DNA in 1999, the grand jury counsel speculated that DNA was not available until much later. Counsel also mentioned that sex offenders are required to put their DNA in a database. Finally, counsel commented that based on the newspaper article, Griffin was not a suspect until the DNA match came up. "The reason why it's interesting is because of the DNA situation that allows them to take these cold cases and bring them back to life."

The grand jury wanted to know how they managed to identify Griffin as a suspect after several years of no leads. The grand jury counsel again speculated that "[t]hey must have had some other evidence that I'm not aware of. I don't know what they've told you but they must have had some evidence back in 1999 when this girl was found[.]"

The discussion about whether Griffin was an original suspect in 1999 continued, and the grand jury counsel mentioned the newspaper article again. Counsel told the grand jury that DNA "brings about the ability to close cases that have been considered" cold.

When Det. Sunia got back on the stand, the grand jury asked her what made Griffin a suspect. Det. Sunia said that HPD kept a "general data base" with unknown DNA evidence taken from Luka's body. After vigilant checking and comparing, it came up with a potential suspect, Darnell Griffin. The grand jury indicted Griffin with murder in the second degree and sex assault in the first degree.

Griffin filed a motion to dismiss the indictment based on misconduct not on the part of the prosecutor, but the grand jury counsel. The circuit court noted the dearth of case law on the standards for grand jury counsel, applied the standard used for prosecutorial misconduct at a grand jury proceeding, and denied the motion.

Pre-Trial Motions and Trial. Griffin filed a motion seeking to use evidence of Luka's extramarital affair and promiscuity to show that Griffin did not cause her death, that any sexual contact was consensual, and to undermine Kevin Luka's credibility. The prosecution filed a motion seeking to keep that evidence out. The circuit court granted the prosecution's motion thereby denying Griffin's. At trial, Griffin was convicted of murder in the second degree and acquitted of sexual assault. His motion for acquittal based on a lack of evidence was denied. The circuit court sentenced Griffin to life in prison without the possibility of parole. He appealed.

The Independent Grand Jury Counsel. "Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it." Haw. Const. Art. I, Sec. 11. The grand jury counsel is "unique in American jurisprudence for there is no comparable provision in either the federal or other state constitutions." State v. Kahlbaun, 64 Haw. 197, 200, 638 P.2d 309, 313 (1981). Grand jury counsel is not an advocate for the accused. State v. Hehr, 63 Haw. 640, 641, 633 P.2d 545, 546 (1981). It was intended to "ensure an independent grand jury and to relieve the prosecutor of the conflicting burdens of presenting evidence in support of the indictment and advising the grand jury on matters of law[.]" Id. at 641, 633 P.2d at 546-47. Counsel serves "to receive inquiries on matters of law sought by the grand jury, conduct legal research, and provide appropriate answers of law." HRS § 612-57.

Prosecutorial (and other kinds of) Misconduct Before the Grand Jury. "[A]n indictment that is the result of prosecutorial misconduct or other circumstances which prevent the exercise of fairness and impartiality by the grand jury may be successfully attacked." State v. Chong, 86 Hawai'i 282, 288-89, 949 P.2d 122, 128-29 (1997). There are not a lot of cases addressing the independent grand jury. However, there are many cases addressing when prosecutorial misconduct before the grand jury warrants the dismissal of an indictment. Nonetheless, the ICA held that allegations of misconduct by the grand jury counsel fall under the "other circumstances" that prevent the grand jury's ability to be fair and impartial and can be attacked.

The New Standard: Misconduct by the Grand Jury Counsel. The ICA noted that in prosecutorial misconduct cases, the burden is on the defendant to show the misconduct, State v. Pulawa, 62 Haw. 209, 214, 614 P.2d 373, 376 (1980), and saw "no compelling reason to change who shoulders the burden for motions to dismiss based on grand jury misconduct."

The ICA adopted a new standard in examining grand jury counsel misconduct: "to warrant dismissal of an indictment, a defendant must show that the grand jury counsel's misconduct has clearly infringed upon the grand jury's decision-making function and invaded the province of the grand jury, and that the misconduct tended to induce action other than that which reasonable grand jurors, in their uninfluenced judgment, would deem warranted based on the evidence fairly presented to them." The ICA adopted this standard in light of grand jury counsel's authorized role and function.

Grand Jury Counsel was Improper, but not Prejudicially so. The ICA held that the circuit court did not err in denying Griffin's motion to dismiss. Even though grand jury counsel kept mentioning the newspaper article that was not presented at the hearing, the ICA found no prejudice because "this fact was already known to at least one juror." And even though grand jury counsel referred to the sex offender DNA database, he did not know if that was the case here. Finally, the grand jury counsel said that he did not know if there was enough evidence to accuse Griffin or not in 1999. The ICA acknowledged that these statements were indeed improper, but they were not prejudicial because they did not invade the province of the grand jury.

The Impropriety . . . The ICA held that the grand jury counsel's comments were improper. "While better left unsaid, the statements were either regarding matters already known to the grand jurors or were clarified so that it was made clear the [grand jury counsel] was not stating a fact in Griffin's case[.]" This implies that if there were facts that were not known to the jurors or if it was not clear that the grand jury counsel was stating a fact, it could have arisen to prejudicial impropriety.

But the ICA did not really make it clear why these comments by grand jury counsel were improper. The grand jury counsel is there to advise the grand jury on its legal questions. For example, grand jury counsel is often called upon to inform jurors about the elements of an offense or something like that. It is not designed to be an expert juror commenting on the evidence presented, which is what this grand jury counsel appeared to be doing.

Evidence of Prior Sexual Behavior does not Show that Another Could have Killed her. Griffin also argued that the circuit court erred in prohibiting him from using evidence that Luka had extramarital affairs and stayed out late at nightclubs. Griffin argued that this evidence was relevant because it would have shown that other persons could have killed her. The ICA rejected his argument. When presenting evidence that another person was motivated to commit the crime, "there must be some nexus between the proffered evidence and the charged crime" as well as "substantial evidence tending to directly connect that [other] person with the actual commission of the offense." State v. Rabellizsa, 79 Hawai'i 347, 350, 903 P.2d 43, 46 (1995). The ICA held that Griffin did not present any evidence, let alone "substantial evidence," linking any other person to Luka's death.

The Other Issues. Griffin contended that the admission of his conversation with his wife about cleaning the car was irrelevant and, if relevant, too prejudicial under Hawai'i Rules of Evidence (HRE) Rules 401 and 403. The ICA held that this was not plain error (Griffin did not object at trial). According to the ICA, this evidence was relevant because it showed some consciousness of guilt, not prejudicial, and not plain error (Griffin did not object at trial). Finally, the ICA rejected Griffin's claim that there was insufficient evidence to convict him of murder in the second degree. Although there was conflicting evidence, there was substantial evidence supporting the verdict viewed in the light most favorable to the prosecution. State v. Eastman, 81 Hawai'i 131, 135, 913 P.2d 57, 61 (1996).

Confrontation Clause is not a Right to Present Misleading Evidence

2011-10-29T13:45:00.002-10:00

State v. Brooks (ICA October 21, 2011)

Background. Ted Arifuku was found dead in his apartment with his hands tied behind his back and bruises and cuts all over his body. The medical examiner concluded that Arifuku had been strangled to death. The police searched his apartment and found a homemade utility knife and a blue cap that was on the bed, methamphetamine, and marijuana. Soon after the discovery of the body, police received information that the blue cap belonged to Curtis Ray Brooks, who was homeless and living in a van off of Date Street. Police questioned Brooks and Brooks implicated Sistine Rangamar. Rangamar was then arrested and provided a lengthy statement to the police.

Rangamar's Statement. Rangamar told the police that Arifuku was a drug dealer and that Brooks planned his death. Rangamar said that Brooks instructed him to visit Arifuku in his apartment while Brooks waited nearby. Rangamar was supposed to subdue Arifuku, tie him up, and let Brooks in through a back door. Rangamar said that Brooks gave him the knife and the blue cap. The next morning, Rangamar went to Arifuku's apartment and knocked on the door. Arifuku answered and Rangamar went inside to buy a "twenty." Arifuku got suspicious and tried to get him out of the apartment. They struggled. Eventually, Rangamar tied up Arifuku, but he lost consciousness. When he came to, he saw that Arifuku was still breathing. Rangamar knocked on the back door, but Brooks was not there. Rangamar took some money and left. Later that day he met up with Brooks, who was mad at him for leaving him hanging. Rangamar later learned that Arifuku died and denied killing him.

The Trial. Both Brooks and Rangamar were charged with kidnapping, robbery, and murder. Before trial, however, Rangamar killed himself. Brooks filed a motion in limine allowing him to introduce certain portions of the Rangamar statement pursuant to HRE Rule 804(b)(3) (statements against Rangamar's penal interest). Brooks' portions included Rangamar saying that he tied up and assaulted Arifuku, and that he brought Brooks' cap and the homemade knife to the apartment. In all, there were eight portions proffered by Brooks.

The prosecution objected, and wanted to submit other portions implicating Brooks based on the rule of completeness. HRE Rule 106. Brooks responded that the prosecution's use of the responsive portions violated his rights under the Confrontation Clause. The circuit court ruled that the Rangamar statement was "testimonial" under the Confrontation Clause, and could not be used at trial for the prosecution's case in chief. However, if the statements proffered by Brooks were used in his defense, almost all of the portions would violate the rule of completeness. Thus, if Brooks did open that door and use those portions, the prosecution would be permitted to use the responsive portions.

Brooks used the portions at trial, the prosecution responded with its portions. The jury found Brooks guilty of manslaughter, kidnapping, and robbery. The jury also merged the manslaughter with robbery and kidnapping with robbery. The prosecution elected to dismiss the robbery charge. The circuit court sentenced Brooks to 20 years for the manslaughter and 20 years for the kidnapping, running consecutively. Brooks appealed.

The Right to Preclude "Testimonial" Hearsay Statements can be Waived. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused." Haw. Const. Art. I, Sec. 14; see also U.S. Const. amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" Testimonial hearsay statements cannot be used in criminal prosecution unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant about the statement. Crawford v. Washington, 541 U.S. 36, 68 (2004); State v. Fields, 115 Hawai'i 503, 513, 516, 168 P.3d 955, 965, 968 (2007).

This "right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); State v. El'ayache, 62 Haw. 646, 649, 618 P.2d 1142, 1144 (1980). Similarly, the criminal defendant's right to present testimony may be limited by evidentiary rules that further legitimate interests in the criminal trial process. Michigan v. Lucas, 500 U.S. 145, 149 (1991); State v. Pond, 118 Hawai'i 452, 463, 193 P.3d 368, 379 (2008). Finally, the defense can waive the right to confront witnesses when the waiver is "a matter of trial tactics and procedure." Thompson v. Yuen, 63 Haw. 186, 190, 623 P.2d 881, 884 (1981).

The Rule of Completeness Allows the Prosecution to Rebut Misleading Portions of a Statement Offered by the Defense. "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." HRE Rule 106. The prosecution argued that the Brooks' portions were so misleading without the rest of the statement, that it would unfairly mislead the jury. Brooks did not dispute that on appeal. Instead, he argued that the Confrontation Clause prohibited the prosecution from using those portions and that the rule of completeness cannot trump his constitutional rights.

The ICA turned to courts from other jurisdictions that have examined this particular issue and disagreed with Brooks. Arizona v. Prasertphong, 114 P.3d 828, 829-30 (Ariz. 2005) (defendant "forfeited his Confrontation Clause right not have [the] statement admitted against him when [the defendant] himself introduced portions of that statement"); People v. Parrish, 152 Cal. App. 4th 263, 276 (Cal. App. 2007), U.S. v. Moussaoui, 382 F.3d 453, 481-82, (4th Cir. 2004), South Dakota v. Sellalla, 744 N.W.2d 802, 818 (S.D. 2008).

Brooks' Choice: Waive Confrontation Rights or Decline Using the Statement. The ICA held that the circuit court did no err in allowing the prosecution to introduce its portions of the Rangamar statement in response to Brooks' introduction of his portions. The circuit court concluded that Brooks' portions, standing alone, created "the danger of unfair prejudice . . . or misleading the jury[.]" HRE Rule 403. Thus, Brooks had a choice: offer his portions of Rangamar's statement and allow the prosecution to rebut the portions that would mislead the jury, or not offer the statement at all. Brooks argued that under Crawford, he did not have to make this choice. The ICA affirmed the circuit court and held that "Crawford does not bar the admission of evidence pursuant to the rule of completeness." Brooks, according to the ICA, cannot introduce his portions of the statement "and, at the same time, use Crawford to preclude the State from introducing other portions of Rangamar's statement that were necessary to prevent the jury being misled." The ICA explained that the right of confrontation "cannot be used to distort and subvert the truth-seeking function of the criminal trial process[.]"

Rejecting the Cromer. The ICA also rejected the lone case cited by Brooks. In United States v. Cromer, 389 F.3d 662, 678-79 (6th Cir. 2004), the federal appeals court held that the government could not introduce testimonial hearsay evidence in response to the defendant's introduction of evidence. The Sixth Circuit reasoned the Crawford made it clear that the Confrontation Clause was not dependent on the law of evidence. Id. The ICA simply explained that it was "not persuaded by the reasoning in Cromer and decline[d] to follow it." It also cited other courts that were not convinced by Cromer. State v. Birth, 158 P.3d 345, 354-55 (Kan. Ct. App. 2007); People v. Ko, 789 N.Y.S.2d 43, 45 (N.Y. App. Div. 2005).

Crawford and the Rules of Evidence. Before 2004, the Confrontation Clause did not preclude the prosecution from using evidence as long as it has an "indicia of reliability," which meant it had to fall within a "firmly rooted hearsay exception" or have "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980). The SCOTUS rejected this test in Crawford v. Washington. Justice Scalia, writing for the court, explained that "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Crawford, 541 U.S. at 51. Cromer, decided around eight months after Crawford, must have taken this language to heart and refused to allow the prosecution to introduce testimonial hearsay even if it gave the jury a distorted picture. But since then, courts--including the ICA--appear to be moving away from this strong language. The SCOTUS has yet to determine whether we can move away at all.

Can Crawford Prohibit Rebuttal Evidence? The ICA joined other courts that allow the prosecution to use testimonial hearsay that would normally be in violation of the Confrontation Clause when it is used to rebut the defense. But how broad is this exception to Crawford? The answer could come from the circuit court again. The circuit court allowed the prosecution to rebut seven out of the eight portions proffered by Brooks. The lone exception was Rangamar's statement that he took Brooks' blue cap to Arifuku's apartment. This statement was not misleading to the jury and there was no need to rebut it under HRE Rule 106 and HRE Rule 403. So did that mean, that the Confrontation Clause prevented the prosecution from presenting rebuttal evidence?

For example, let's say that the defendant has an alibi witness who will testify, and the prosecution wants to use a statement in violation of the Confrontation Clause to rebut the testimony. Can it? Or has the defendant waived his or her right to confront? HRE Rule 106 would not apply because the evidence is not from the same statement. What about HRE Rule 403? Would it be misleading to have the jury hear just the alibi witness and not the statement? If so, could the prosecution use the Crawford-offending evidence? Is this the kind of situation Crawford was intended to correct? Only time will tell.

The Maximum Term of Imprisonment is the Statutory Maximum (not the Maximum Range under Federal Sentencing Guidelines)

2011-10-21T10:25:00.000-10:00

State v. Andres (ICA October 20, 2011)

Background. Ray Andres was charged with promoting a dangerous drug in the second degree. HRS § 712-1242. The date of the alleged offense occurred on November 6, 2006. The prosecution moved for a mandatory minimum term of three years and four months of imprisonment without the possibility of parole. Over Andres' objection, the circuit court determined that Andres was eligible for a mandatory minimum based on a conviction for a federal drug offense in 1991. In that case, Andres pleaded guilty to attempting to possess over 100 grams of crystal methamphetamine on July 3, 1991 and was sentenced on July 8, 1991. The federal court determined that Andres was subject to a range of 121 to 151 months. The circuit court imposed a mandatory minimum on Andres. Andres appealed.

The Repeat-Offender Statute. Andres was found guilty of a class B felony and sentenced pursuant to the repeat-offender statute. "[A]ny person convicted of . . . any class B felony . . . and who has a prior conviction or prior convictions for the following felonies . . . or any felony conviction of another jurisdiction, shall be sentenced to a mandatory minimum period of imprisonment without the possibility of parole[.]" HRS § 706-606.5(1). However, "a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows . . . [w]ithin the maximum term of imprisonment possible after a prior felony conviction of another jurisdiction." HRS § 706-606.5(2)(f).

What's the "Maximum Term of Imprisonment"? Andres argued that the exception applied to him because the date of the current offense--November 6, 2006--occurred beyond the "maximum term of imprisonment" for the federal offense. Andres argued that the "maximum term of imprisonment" was the 151 months from the federal sentencing guidelines, which were mandatory at the time of the sentencing. On the other hand, the prosecution argued that the "maximum term of imprisonment" refers to the statutory maximum. Here, Andres was convicted of violating a federal statute. 21 U.S.C. § 841(b)(1)(A). The statutory maximum is a life sentence.

Maximum Term of Imprisonment = the Statutory Max. under the laws of that Jurisdiction. The ICA rejected Andres' argument. "The phrase 'maximum term of imprisonment possible' in HRS § 706-606.5(2)(f) . . . refers to the maximum term of imprisonment to which a court in a foreign jurisdiction may possibly sentence a convicted defendant." State v. Heggland, 118 Hawai'i 425, 436, 193 P.3d 341, 352 (2008). In determining the maximum term possible, the HSC looked to the jurisdiction that sentenced the defendant. Here, the ICA turned to federal authorities to determine the maximum possible sentence. According to the ICA, the federal authority is clear: the maximum term of imprisonment stems from the United States Code, not the federal sentencing guidelines. United States v. Ray, 484 F.3d 1168, 1171 (9th Cir. 2007); United States v. Hinson, 429 F.3d 114, 119 (5th Cir. 2005); United States v. Work, 409 F.3d 383, 488-92 (1st Cir. 2005). The ICA held that the maximum term of imprisonment for Andres was a life term. Thus, any subsequent offense was within the maximum term of imprisonment.

What's the Maximum when you can go Beyond the Statutory Maximum? This is a straight-forward case. The ICA held that the statutory maximum is the measuring stick, not the maximum guideline range. So far, so good. But sticky problems await. Some statutes allow the sentencing court to go beyond the statutory maximum and impose enhanced sentences provided that certain evidence is proven by the prosecution before a jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). So what's "the maximum term of imprisonment" in that situation? Would it be the enhanced sentence if the prosecution went proved those facts? Probably. But what if it didn't, but it could have done it? Would the measuring stick still be the enhanced sentence? Heggland states that "the maximum term of imprisonment to which a court in a foreign jurisdiction may possibly sentence a convicted defendant." State v. Heggland, 118 Hawai'i at 436, 193 P.3d at 352. And a court could possibly sentence a defendant to the enhanced sentence. Then again, the answer could be no. A "convicted defendant" suggests that the maximum term is limited to the statutory maximum without the enhancing facts. Either way, that issue is out there waiting for resolution.

HSC: Burden is on the Court to Explain why it Reduced a Court-Appointed Attorney's Request for Fees Exceeding the Statutory Maximum

2011-10-20T11:55:00.000-10:00

In re Attorney's Fees of David Bettencourt (HSC October 19, 2011)

Background. The circuit court appointed David Bettencourt to represent Joshua Gonda in a murder case. The case went to trial and Gonda was found not guilty on all counts. Bettencourt represented Gonda for 16 months. In the middle of the case, Bettencourt requested attorney's fees of $19,188 for 213.2 billable hours at $90.00 per hour. The trial court judge certified the entire amount. The administrative judge, however, struck out billable time submitted for making copies of documents on the grounds that it was not legal work. The administrative judge approved of $18,567.

After trial, Bettencourt made his second request. This time he requested $38,529 in fees for 428.1 hours of work. The trial judge approved it. Again, however, the administrative judge cut out almost $11,000 in fees and awarded $26,640. The administrative judge did not provide any specific grounds for the cut. Attached to the reduced award, however, was a memorandum noting that administrative orders of the court allow "reasonable compensation" and that anything over the statutory threshold may be rejected by the administrative court. The statutory threshold in this kind of case is $6,000. The day the reduced award was issued, the Chief Justice of the HSC ordered that administrative orders would have no effect. Bettencourt appealed.

Court-Appointed Attorneys and Their Bread n' Butter. "The court shall determine the amount of reasonable compensation to appointed counsel, based on a rate of $90 an hour; provided that the maximum allowable fee shall not exceed" a schedule depending on the kind of case. HRS § 802-5(b). Here, the felony case is limited to $6,000. Payment in excess of the maximum is permissible "whenever the court in which the representation was rendered certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the administrative judge of the court." Id.

Certifying and Approving: Two Tiers of Independent Review. The statute, according to the HSC, clearly delineates two levels of review. First, the trial court must certify the amount and secondly the administrative judge must approve. The issue was determining what standards of review were needed. HSC--relying on federal courts--interpreted HRS § 802-5(b) to warrant two independent reviews at the "certifying" and "approving" stages. See United States v. Harper, 311 F.Supp. 1072, 1072-73 (D.D.C. 1970); United States v. Sepulveda, 502 F.Supp. 2d 1104, 1106 (D. Mont. 2007). The HSC held that the trial judge and the administrative judge have de novo review of a request for fees exceeding the statutory maximum.

Reducing the Request Requires a Stated Reason. The HSC reviews the reduction of fees for an abuse of discretion. In re Attorney's Fees of Reinhard Mohr, 97 Hawai'i 1, 6, 32 P.3d 647, 652 (2001). The administrative judge reduced the second amount but did not explain why it was reduced. This made it impossible for the HSC to determine whether the administrative judge did in fact abuse its discretion in reducing the requested amount. Unlike Mohr, where the ICA reduced without explanation an appellate attorney's request that was below the statutory maximum, Bettencourt's request is six times the statutory maximum for a very weighty case--several counts of murder after a 14-day trial. The HSC noted that in this kind of case, "[t]he trial judge (in particular) and the administrative judge are the ones most capable of evaluating whether the compensation Bettencourt requested was fair in light of the work he performed." The HSC further held that in order to enable appellate review of a reduced award, the judge reducing the award must set forth reasons for the reduction. The case was remanded back to the circuit court.

Certifying v. Approving: is there a Difference? The HSC held that both judges conduct an "independent review" of the requested amount. The trial court certifies it, while the administrative judge approves it. Are these different things? Certainly, the legislature intended to put different meaning to the different words, right? Perhaps not. The HSC did not elaborate on the difference. It held that both judges have an independent review. This means that the administrative judge does not defer to the certification of the trial court. And yet, the HSC later noted that "[t]he trial judge (in particular) and the administrative judge are the ones most capable of evaluating whether the compensation Bettencourt requested was fair in light of the work he performed." Does that suggest that when performing an independent review, the administrative judge should have some deference?

Juries have to Award General Damages Exceeding $1.00 once they find Liability and Special Damages

2011-10-18T11:01:00.002-10:00

Kanahele v. Han (HSC October 12, 2011)

Background. Gregory Kanahele, Sr., his son, Kanahele, and his daughter, Trishalynn Kanahele, sued James Han. Kanahele was crossing the street while pushing his motor scooter in a crosswalk. James Han drove through the crosswalk and hit him. At trial, Han testified that his side mirror hit Kanahele. Trishalynn and Gregory, Sr. saw the accident. The Kanaheles all sued Han alleging negligence and sought damages for pain, suffering, emotional distress, and loss of enjoyment of life. At trial, Kanahele's doctor testified that the handlebar of the motor scooter went through Kanahele's cheek and it had to be repaired with surgery. It was unclear if he suffered disfigurement. There was evidence, however, that Kanahele was in distress and pain after the accident and prior to the surgery. The total cost of Kanahele's treatment came to around $12,000.

The jury found that Kanehele was injured, but the other plaintiffs were not. The jury also found Han negligent and that his negligence was a legal cause to Kanahele's injuries. However, they also found Kanehele and his father negligent and legal causes to Kanahele's injuries. They found Han 45% negligent, Gregory Sr. 45% negligent, and Kanehele 10% negligent. As for the award, they found the $12,000 in special damages and awarded zero in general damages.

The parties held a bench conference. Both agreed that the verdict was defective. Han wanted the court to resubmit the verdict for further deliberation on damages. Kanahele wanted a new trial. The court decided to order the jury back into deliberation with a special instruction that its damages award was inconsistent with the law because there must be some general damages after a finding of negligence and special damages. The court also submitted a special verdict form listing the $12,000 in special damages, but leaving the general damages blank. During deliberation, the jury asked what the minimum award could be. The parties agreed that they would not provide that answer and tell the jury to look to its instructions. Five minutes later, the jury awarded $1.00 in general damages.

The Kanaheles moved for a new trial on the grounds that the $1.00 in damages was still inconsistent. The motion was denied and the court deducted the fault percentages leaving Kanahele with $6,754.77. Han appealed and the Kanaheles cross-appealed. The ICA affirmed and the Kanaheles applied for a writ of certiorari.

Procedural Matters on a Cert. Petition. Although the HSC accepted certiorari over the objections of Han, the HSC took the time to reject Han's arguments against accepting cert. This is rare. Most of the time, an application is rejected or accepted without explanation.

HRAP Rule 28 applies to Briefs, not Applications for Cert. Han argued that the application for cert. should have been rejected because under the Kanaheles' "Statement of Facts" section, there were four paragraphs describing the accident that did not cite back to the record on appeal. Han relied on Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b)(3), which requires that an opening brief to contain "a concise statement of the case" with references to the record and transcripts. The HSC rejected this argument because the facts without reference to the record described matters that were not in dispute: Kanahele was crossing the street when Han hit him and Kanahele was hurt. The HSC also noted that Han pointed to no cases that dismissed an appeal based on non-compliance with HRAP Rule 28(b)(3). Moreover, the HSC noted that it has the discretion to accept appeals pursuant to HRAP Rule 2, which gives appellate courts the power to suspend the procedural rules upon good cause shown or in the interest of expediting the decision. Moreover, the HSC noted that it has a "policy of affording litigants the opportunity to have their cases heard on the mertis[.]" Schefke v. Reliable Collection Agency, Ltd., 96 Hawai'i 408, 420, 32 P.3d 52, 64 (2001).

HRAP Rule 28 v. HRAP Rule 40.1. The HSC, in rejecting Han's procedural argument, did not cite HRAP Rule 40.1. Rule 28 regulates briefs. And that requires references to the record on appeal. HRAP Rule 40.1, however, regulates applications for writs of certiorari. It requires "a short statement of the case containing the facts material to the consideration of the questions presented[.]" The rule does not expressly require references to the record on appeal or even transcripts. That said, it's always a good idea to let the court know where in the record your factual assertions are.

Okay, so Once a jury Awards Specials, it has to Award Generals . . . but what's the Remedy? A "verdict which awards the plaintiff special damages but no general damages for pain and suffering is generally regarded as improper[.]" Dunbar v. Thompson, 79 Hawai'i 306, 314-15, 901 p.2d 1285, 1293-94 (App. 1995). The remedy for this impropriety may be a new trial to determine general damages. See Powers v. Johnson, 562 So. 2d 367, 370 (Fla. Dist. Ct. App. 1990); Smith v. Uhrich, 704 P.2d 698, 699-700 (Wyo. 1985).

However, if the jury is still available, the trial court has the discretion to resubmit the verdict and determine general damages. Duk v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1058 (9th Cir. 2003). Allowing the jury to "correct its own mistakes conserves judicial resources and the time and convenience of citizen jurors, as well as those of the parties[.]" Id. Here, the HSC held that the court did not abuse its discretion by having the jury re-deliberate the issue of general damages.

Nominal Damages are not General Damages. The HSC agreed that the $1.00 award was "the symbolic equivalent" to no award and was thus still improper. "Nominal damages means no damages at all[.]" Hall v. Cornett, 240 P.2d 231, 235 (Or. 1952). It is a "trifling sum awarded when no legal injury is suffered but there is no substantial loss or injury to be compensated[.]" Black's Law Dictionary 447 (9th ed. 2009). According to the HSC, when a jury awards special damages, but nominal general damages, if there is "sufficient evidence to support an award for pain and suffering[,]" the verdict is still inconsistent as if there were no damages. Walsh, 80 Hawai'i at 194, 907 P.2d at 780. Here, the HSC held that there was sufficient evidence showing pain and suffering and that there should be an award for actual general damages. Kanahele's doctor and Han's testimony provided sufficient evidence along with the medical invoices showed enough that Kanahele experienced pain and suffering.

Three Exceptions. There are exceptions to the no-generals-even-though-the-jury-awarded-specials rule. A zero general damages award may stand even when there are special damages when (1) the evidence showed "a dispute over the amount of the claimed special damages" so that the zero-general-damages award is "evidence of the jury's intent to include in the special damages award an amount for pain and suffering"; (2) there is "no probative evidence that the plaintiff incurred pain or suffering"; or (3) the only evidence of the pain and suffering comes from the subjective testimony of the plaintiff, "which the jury could reasonably have concluded was exaggerated or lacking in credibility." Dunbar, 79 Hawai'i at 361, 901 P.2d at 1295. According to the HSC, none of these exceptions applied here. Han even conceded that the verdict was inconsistent. And so, the HSC remanded the case for a new trial on damages.

"Symbolic Equivalent" or a Slippery Slope? After being instructed that the jury had to award something to the plaintiff, it came up with $1.00. The HSC held that this award was a nominal general damages award because "nominal damages may not exceed $1.00." Minatoya v. Mousel, 2 Haw. App. 1, 6, 625 P.2d 378, 382 (1981). Thus, the nominal damages are the "symbolic equivalent" of no damages and a new trial is needed. But was it nominal? What if that was what the jury believed was ample compensation for pain and suffering? What if the jury comes up with $2.00? It may be more than nominal damages, but is it still the "symbolic equivalent" of no award? Where do we draw the line?

Calling Defendant "Habitual" OUI Offender won't cut it

2011-10-03T08:33:00.002-10:00

State v. Walker (ICA September 30, 2011)

Background. Samuel Walker was charged with habitually operating a vehicle while under the influence of an intoxicant. HRS § 291E-61.5. The charge simply alleged that Walker was "a habitual operator of a vehicle while under the influence of an intoxicant[.]" Walker objected to the sufficiency of the charge prior to verdict, but was found guilty of the offense. He appealed.

Liberal Construction does not apply. The ICA held that because Walker objected to the sufficiency of the charge prior to the verdict, the liberal construction did not apply. The "liberal construction standard is limited to construing indictments, when the issue is only raised after trial." State v. Motta, 66 Haw. 89, 94, 657 P.2d 1019, 1022 (1983).

Charging Instruments must Apprise Defendant of the Offense AND Establish Jurisdiction. The accused has the right "to be informed of the nature and cause of the accusation." Haw. Const. Art. I, Sec. 14. The charging instrument must also allege sufficient facts establishing jurisdiction. State v. Stan's Contracting , Inc., 111 Hawai'i 17, 32, 137 P.3d 331, 346 (2006); HRS § 806-34. See also State v. Kekuewa, 114 Hawai'i 411, 424, 163 P.3d 1148, 1161 (2007) ("an oral charge, complaint, or indictment that does not state an offense contains within it a substantial jurisdictional defect").

Statutory terms Departing from Commonly-Understood Meanings must be Alleged in the Charging Instrument. The ICA turned, inter alia, to State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), in which the HSC held that the failure to include the statutory definition of the term "operate" in the charge of operating while under the influence of an intoxicant did not provide adequate notice of an essential element in the offense--that the State must prove that the defendant was driving on a public road or highway. Id. at 395, 219 P.3d at 1182. The HSC explained that the term "operate" is a term of art that departed from the commonly-understood meaning of the word. The ICA also noted that a charging instrument must "be understood by a person of common understanding." HRS § 806-31. Furthermore, alleging a statutory definition in the charging document is necessary "when it creates an additional element of the offense, and the term itself does not provide a person of common understanding with fair notice of that element." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010).

. . . "Habitual Operator" is one of Those Terms. According to the ICA, the issue here was the term "habitual operator of a vehicle while under the influence of an intoxicant" is also a term of art. A "habitual operator" is a person who has three previous convictions of OUI within ten years of the instant offense. HRS § 291E-61.5(b). The commonly-understood meaning of the word "habitual" or "habit" is much more expansive. Random House Webster's Unabridged Dictionary 856 (2d ed. 2001) ("an acquired behavior pattern regularly followed until it has become almost involuntary"); Black's Law Dictionary 779 (9th ed. 2009) ("Customary; usual"). According to the ICA, the failure to include this statutory definition rendered the charging document defective.

Proof of "Habitual Operation" is an Essential Element. The ICA noted that the term "habitual" or "habitual operator" alone "does not convey the specificity of the term[.]" Moreover, proof of three pervious prior OUI convictions within ten years of the recent operation under the influence is an essential element to the habitual OUI offense that must be proven at trial. See State v. Ruggiero, 114 Hawai'i 227, 239, 160 P.3d 703, 715 (2007); State v. Domingues, 106 Hawai'i 480, 107 P.3d 409 (2005); State v. Kekuewa, 114 Hawai'i 411, 163 P.3d 1148 (2007). Thus, it is an essential element that must be adequately alleged in the charging instrument.

Chief Judge Nakamura's Dissent. A charge is sufficient when "it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he or she must be prepared to meet." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010). Chief Judge Nakamura believed that the language of the charging instrument was sufficient. It alleged that Walker was a "habitual" OUI offender. For Chief Judge Nakamura, a "habitual" offender is a recidivist--a person with multiple convictions for the same offense. That alone should have given him fair notice of the additional element in the habitual OUI charge. Chief Judge Nakamura wrote that the statutory definition of the term "habitual operator" did not create an element of the offense and the word "habitual" did not depart from the commonly-understood meaning of the word.

Chief Judge Nakamura wrote that Walker's (and implicitly the majority's) reliance on Domingues, Kekuewa, and Ruggerio were unpersuasive. For him, those cases "support the unremarkable proposition that for a charge to be sufficient, the State is required to include in the charge those portions of the offense statute that identify the essential elements of the substantive offense." That line of cases, according to Chief Judge Nakamura, included prior convictions as an element to the offense because proof of the priors enhanced the penalty beyond 30 days jail. This triggers the right to a jury trial and raises grave due process concerns. Walker's offense, on the other hand, raises none of those concerns. Habitual OUI is a felony; thus, "there is no due process concern relating to the ascertainment of the entitlement to a jury trial that would necessitate construing the statutory definition of the habitual offender phrase as part of the substantive habitual" OUI offense.

What about Bryan? Neither the majority nor Chief Judge Nakamura mentioned State v. Bryan, 124 Hawai'i 404, 245 P.3d 477 (App. 2010). In that case, Bryan challenged the sufficiency of a charge alleging the offense of driving while license is suspended or revoked pursuant to an OUI conviction. HRS § 291E-62. It was Bryan's 2d driving-while-license-suspended-pursuant-to-an-OUI-conviction but that was not alleged in the charging instrument. Bryan argued that the prior convictions were essential elements that must be alleged in the complaint. In that case, the ICA agreed. Relying primarily on Domingues, Kekeuwa, and Ruggerio, the ICA held that "qualifying prior . . . convictions are attendant circumstances and an essential offense element that must be alleged in the charging instrument." Bryan, 124 Hawai'i at 414, 245 P.3d at 487. The ICA went even further and noted that in Ruggerio, the HSC maintained its position that prior convictions were elements to the offense even after the legislature kept the offense as petty misdemeanors. Bryan appears to bolster the majority's opinion and it seems like the dissent would have had to distinguish it to maintain its position. After all, how can prior convictions in Bryan be an essential element on one hand while the habitual operator's prior convictions are not? Chief Judge Nakamura simply wrote that it was the "habitual offender phrase, and not its statutory definition, that describes the essential element for the offense." Perhaps Bryan can be distinguished. But there was no need to. None of these issues were not discussed in either opinion.

Harmless Error Determined by Weighing Evidence at Trial, not Reasonable Possibility of it Contributing to Conviction

2011-09-14T16:44:00.001-10:00

State v. Veikoso (HSC September 12, 2011)

Background. John Veikoso was indicted with eight counts involving sexual assault in the 1st degree, kidnapping, and sexual assault in the 3d degree. The complaining witnesses were two prostitutes. One of the prostitutes testified that Veikoso picked her up near the Long's Drugs and Safeway near Nu'uanu Ave. She agreed to cruise with them and they went up the Pali Highway. They went into a dark neighborhood on the Old Pali Road. Veikoso told her that he could take her back if she was scared. She said she was okay. Soon, however, she did get scared and asked to be taken back. Veikoso took her phone away and hit her in her face and head several times. He grabbed her hair. She was bleeding and lost consciousness. She tried to get out of the car, but Veikoso kept pulling her hair and threatened to hit and even shoot her if she tried to get away. She kept quiet as they drove down the windward side of the Pali. Veikoso said that he would drop her off at a bus stop and give her money to get the bus home. Veikoso, however, passed a bus stop and drove to the Maunawili Elementary School. They pulled into a dark area near a dumpster. Veikoso got out of the car and dragged the woman by her hair her to a bench. He undressed himself and her and they performed sex acts together. Afterwards, he said that he would give back her phone if she went with him to his car. The woman, however, ran away and tried to flag down several cars, until Chad Ogawa stopped. He got a look at the car, took the woman, and drove to a 7-11. Someone called the police. The woman later identified Veikoso and his car. Ogawa testified that he picked up the woman and saw blood on her face and her clothes were torn. She told him that she had just been raped at the school. Ogawa corroborates much of the woman's testimony.

Dr. Lee Wayne Lee testified. Dr. Lee testified that he examined the woman shortly after she was picked up by Ogawa. He examined her to determine if she needed medical attention and to gather forensic evidence. Dr. Lee interviewed the woman as part of the examination. Dr. Lee told the jury that the woman said that Veikoso said she "wouldn't be going home if [she] didn't do what he told [her] to do." Dr. Lee also told the jury that the woman said Veikoso "would shoot [her]" and that she'd "be lucky to go home because most girls don't go home[.]" Dr. Lee then testified about the woman's physical state and the results of his examination.

Veikoso moved to strike Dr. Lee's testimony about the statements that he repeated from the woman. He argued it had nothing to do with his physical examination. The motion was denied. Veikoso was found guilty and he appealed. The ICA, in an unpublished memorandum, concluded that the circuit court erred in admitting Dr. Lee's version of the woman's hearsay statements about Veikoso and that the error was not harmless beyond a reasonable doubt. The prosecution petitioned for certiorari on the grounds that it was not harmless.

The Harmless-Beyond-a-Reasonable-Doubt Standard(s). "Even if the trial court erred in admitting evidence, a defendant's conviction will not be overturned if the error is harmless beyond a reasonable doubt." State v. Machado, 109 Hawai'i 445, 452, 127 P.3d 941, 948 (2006). The error is "examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to the conviction." Id. at 452-53, 127 P.3d at 948-49. Formulated differently, when "there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt, errors in the admission or exclusion of evidence are deemed harmless." State v. Toyomura, 80 Hawai'i 8, 27, 904 P.2d 893, 912 (1995).

The Evidence for Sexual Assault in the First Degree. One of the offenses was sexual assault in the first degree. This requires proof of knowingly causing sexual penetration by "strong compulsion." HRS § 707-700. According to the HSC, there was evidence from the woman herself relating to two separate acts of sexual penetration. There was also testimony from Dr. Lee relating to his actual physical examination, which suggested penetration. Finally, there was Ogawa's observations of a ripped blouse and her statement that she had been raped.

Evidence of "Strong Compulsion." The HSC also examined evidence of a "strong compulsion." A strong compulsion is (1) a threat that "places a person in fear of bodily injury" or fear of kidnapping, (2) a dangerous instrument, or (3) physical force used to overcome a person. HRS § 707-700. According to the HSC, there was evidence of a threat of bodily injury. The woman testified that Veikoso's threaten her with violence if she did not obey him; that he would "shoot" her or hit her again. There was also evidence of physical force from the woman's testimony about how he actually hit her and pulled her hair. This testimony is corroborated by the observations of Dr. Lee and Ogawa. Moreover, there was physical evidence of blood found in Veikoso's vehicle and on his shorts. Finally, there was evidence that the threats and physical force was used to overcome the woman. After she had been hit a few times, the woman stopped trying to escape and complied with Veikoso's demands.

After reviewing all of the evidence presented at trial, the HSC held that there was "overwhelming" evidence showing Veikoso guilty of assault in the first degree.

Evidence of the Other Offenses: Sexual Assault in the Third Degree and Kidnapping. The HSC took the same approach to the other counts. As with sexual assault in the first degree, the HSC held that there was overwhelming evidence supporting the jury's verdict.

Rejecting the ICA's Approach to Harmlessness. The HSC took issue with the ICA's analysis. ICA held that Dr. Lee's statements from the woman were not harmless beyond a reasonable doubt because his testimony "may have tipped the scale in favor of" the woman's credibility. The HSC noted that even if that was true, there was still overwhelming evidence supporting the guilty verdict. For example, "strong compulsion" can be proven with either a threat of violence or actual physical force. Nothing in the erroneous statements, according to the HSC, related to the evidence of actual physical force employed by Veikoso.

What about Arceo? When the HSC explained why the ICA incorrectly held that the error was harmless, it noted that there were alternate ways to establish some of the elements of sexual assault and kidnapping. So what happened to Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996)? A defendant's "constitutional right to a unanimous verdict is violated unless . . . (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the 'conduct' element . . . or (2) the trial court gives the jury a specific unanimity instruction[.]" Id. at 32-33, 928 P.2d at 874-75. True, there might have been a unanimity instruction. But if the HSC has acknowledged that there was evidence showing alternate ways for the jury to find Veikoso guilty of some of the offenses, and that the erroneously-admitted evidence might have tainted one of those ways, how can it still be considered harmless beyond a reasonable doubt? There's no way to know--unless there was a special verdict form--whether the jurors picked a way that was unrelated to the erroneous statements. For example, there is nothing establishing which form of "strong compulsion" was agreed upon by the jurors to find Veikoso guilty. And yet, the error doesn't seem to be harmless beyond a reasonable doubt. How can this be? How can this explanation be reconciled with Arceo? That answer awaits us for another day.

A Reasonable Possibility or Overwhelming and Compelling Evidence? At first, it seemed as if there were two separate formulations of the harmless error standard. The ICA appears to have to taken the reasonable-possibility-that-the-error-might-have-contributed-to-the-conviction approach. That, however, was rejected by the HSC because it took a different tact. Instead, the HSC weighed all of the evidence underlying the various offenses, and held that there was overwhelming evidence of guilty and that the erroneously-admitted statement was harmless beyond a reasonable doubt. The HSC then fused the two standards together and held that "[i]n that light, there is no possibility of a reasonable nature that the error contributed" to Veikoso's conviction. So are these standards the same? The HSC did not really address the differences in the formulations, but it begs the question: can an error ever give rise to a reasonable possibility that it might have contributed to the conviction even if there was overwhelming evidence of the person's guilt?

It raises other problems too. What if the HSC held that there wasn't overwhelming evidence? What does that do to the propriety of the verdict itself? If a jury found evidence beyond a reasonable doubt, then what is "overwhelming evidence" of guilt? Something more than beyond a reasonable doubt?

Using a lack of Evidence to show it did not Happen

2011-09-13T11:13:00.003-10:00

State v. Forman (ICA September 8, 2011)

Background. Stephen Forman was charged with unauthorized control of a propelled vehicle. HRS § 708-836. Police found Forman riding a moped on Ala Wai Boulevard. The officers stopped him because the moped's decal was partially missing, which is indicative to them of a stolen moped. Forman told them that he had just rented the moped, but he did not have the paperwork on him. The police traced the moped back to Adventure on 2 Wheels. They also learned that the moped was missing, but not reported stolen.

At trial, Kim Voight of the rental company testified that in order to rent a moped from he company, a renter has to verify that he or she is over 18 years old and provide the company with a driver's license. The renter must also provide a credit card for a deposit, but may actually pay in cash. The customer is then given a contract with a pre-printed number on it, which is subsequently signed by the customer.

The contracts are generated for every moped rental and copies are kept with the company in a safe long after the moped is returned. Voight testified that there were no contracts related to the moped in question were found and no other contracts were missing. The prosecutor also asked Voight if, "based on the absence of these contracts, can you tell if anyone had permission to operate the blue moped[?]" Forman objected, but it was overruled. Voight said that no one had permission. Not even the employees can ride the mopeds.

Forman testified that he had rented the moped from Alfredo Bandalan, who asked for cash rentals and gave him some paperwork, which Forman promptly discarded. Voight on cross-examination confirmed that Bandalan was an employee that he had been fired because "he kept bad paperwork[.]" The jury found Forman guilty.

Bandalan did not testify because he was being held in Kentucky on rape charges. The parties stipulated that they would not refer to any statement Bandalan gave to the police. Forman's counsel filed a motion to withdraw on the grounds that he had provided ineffective assistance of counsel. According to Forman, he had found Bandalan and that Bandalan agreed to testify. Forman told his lawyer, but his lawyer refused to subpoena Bandalan for strategic purposes. The motion to withdraw was granted.

With new counsel, Forman filed a motion for a new trial based on the ineffective assistance of counsel. The motion was denied. The circuit court sentenced Forman to five years prison and Forman appealed.

The Absence of a Business Record. Forman argued that Voight should have never testified about the absence of a contract for the blue moped. Hearsay is not admissible unless it meets an exception provided by rule or statute. Hawai'i Rules of Evidence (HRE) Rule 802. Evidence of the absence of a business record is an exception to the hearsay rule:

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provision of paragraph (6), to prove the nonoccurrence or nonexistence of a matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

HRE Rule 803(b)(7). The record must be "made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness[.]" HRE Rule 803(b)(6).

ICA Turns to Federal Authorities. The ICA turned to federal interpretations of the Federal Rules of Evidence. According to the ICA, because HRE Rules 803 is based on the federal rules, the ICA looked to federal cases. State v. Fukugawa, 100 Hawai'i 498, 511 n. 9, 60 P.3d 899, 912 n. 9 (2002) (federal authorities construing FRE Rules 702 and 703 permissible when interpreting Hawai'i rules "because the HRE are patterned after those rules.").

Foundation for Admitting an Absence of Records to Show Something did not Happen: A Split the Federal Authorities. The ICA noted a split in authorities when it came to the foundation necessary to admit the absence of a business record. Some courts have held that the foundation for admitting the absence of a business record is the same as the foundation for an existing record. United States v. Regner, 677 F.2d 754, 762 (9th Cir. 1982); In re Apex Express Corp., 190 F.3d 624, 635 (4th Cir. 1999); Morris v. B.C. Olympiakos, SFP, 721 F.Supp. 2d 546, 551 (S.D. Tex. 2010); In re Enron Creditors Recovery Corp., 376 B.R. 442, 454 (Bankr. S.D.N.Y. 2007).

Other courts, however, have required a heightened threshold of trustworthiness. Exxon Corp. v. United States, 45 Fed. Cl. 581, 690 (1999) ("when a litigant offers the absence of a business record as proof that an event did not take place, under Rule 803(7), the trustworthiness requirement assumes heightened importance"); United States v. Munoz-Franco, 487 F.3d 25, 39 (1st Cir. 2007).

The Foundation for Using the Absence of a Record to Show an Event did not Occur. The ICA restated federal cases to elicit three "concerns" that must be evaluated before deeming the absence of the record trustworthy enough to prove that the incident did not happen: (1) a qualifying witness must testify that the sought-after record was deemed absent after a thorough or diligent search among the records; (2) there must be a showing that the records searched were sufficiently complete; and (3) if the record is being used to prove that an event did not occur, the event must be the kind that would have been among the searched records.

What about Impartial Record Keeping? Among those federal jurisdictions that have a higher threshold of trustworthiness, the ICA noted that an absent business record cannot be proof that an event did not occur when the records that should have documented the event are impartial or incomplete. Exxon Corp., 45 Fed. Cl. at 691. Moreover, when the record does not record every transaction, it casts doubt on the regularity of the record keeping and whether they can be considered complete. Fury v. Shakespeare Co., 554 F.2d 1376, 1381 (5th Cir. 1977).

. . . This Record was Complete Enough. Turning the facts of this case, the ICA first addressed the particular objection by Forman. Forman did not challenge the diligence of Voight's search of the company records even though her testimony as to what records she searched was "imprecise." Instead, the objection was the records themselves. Forman argued that the records were too incomplete to ensure that the absence of a contract proved that it was never rented to Forman. The ICA rejected this. Even though Voight admitted Bandalan kept bad records, this was too ambiguous. The record, according to the ICA, shows that the company records were complete. There were sequential numbers on the contracts and they were dated near the time Forman was caught with the moped. Moreover, Voight testified that her employees must write a contract for every rental and that they could not be used without a contract.

So what is the Standard now? The ICA recognized a split in federal authority, but it did not expressly adopt one side or the other. Implicitly, however, it seemed to side with the jurisdictions that require a heightened threshold of trustworthiness and offer a three-step foundational requirement. Of course, it did not adopt strong language. Instead of three elements, or even factors, the ICA noted them as "concerns" to be evaluated before admitting the evidence.

Not Ineffective . . . for now. The ICA turned to the claims of ineffective assistance of counsel. The defendant must show "1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Wakisaka, 102 Hawai'i 504, 513-14, 78 P.3d 317, 3216-27 (2003).

Failure to Call a Witness is Usually a Matter of Strategy, but only if There was a Pretrial Investigation. Forman argued that the failure to have Bandalan testify constituted ineffective assistance of counsel. Generally, the decision to not call a witness is a strategic one and "is normally a matter within the judgment of counsel and, accordingly, will rarely be second-guessed by judicial hindsight." State v. Onishi, 64 Haw. 62, 63, 636 P.2d 742, 744 (1981). However, the court will not show deference to counsel where counsel has not established "a foundational factual predicate" from which counsel could base his or her decision to call the witness. State v. Aplaca, 74 Haw. 54, 71, 837 P.2d 1298, 1307 (1992). In other words, the failure "to conduct a pretrial investigation of prospective defense witnesses cannot be classified as a tactical decision or trial strategy." Id. "It is only after an adequate inquiry has been made that counsel can make a reasonable decision to call or not to call" a witness. Id. at 70, 837 P.2d at 1306-07.

Affirming Without Prejudice . . . Here, there was some evidence suggesting that Forman's counsel did not conduct an adequate inquiry as to Bandalan. Bandalan claimed that Forman's counsel did not contact him. The failure to call a witness that would corroborate Forman's testimony may just result in the substantial impairment of a potentially meritorious defense. See State v. Silva, 75 Haw. 419, 443, 864 P.2d 583, 594 (1993). But, according to the ICA, the record was unable to flesh out this matter.

When the record cannot "demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record, [] the appellate court may affirm defendant's conviction without prejudice" to allow an HRPP Rule 40 petition. Id. at 439, 864 P.2d at 592-93. That is exactly what the ICA did here.

Ineffective Because of a Conflict. Forman's other claim of ineffective assistance of counsel stemmed from a conflict of interest. The public defender's office represented Forman and Bandalan at the same time--during Bandalan's extradition proceedings. A conflict of interest arises when a lawyer represents two clients whose interests are "directly adverse" or whose representation may be "materially limited" by the attorney's responsibilities to the other. Hawai'i Rules of Professional Conduct Rule 1.7(a) and (b). According to the ICA, neither were shown here.

The ICA further held that there was no conflict in having the public defender represent Forman in this case and Bandalan for the brief period of time during the extradition proceedings. Forman, according to the ICA, was unable to show how the representation of Bandalan conflicted with his own interests.

Disproving Parental Discipline Defense Requires Extreme Mental Distress, not just Mental Distress

2011-09-02T12:26:00.003-10:00

State v. Dowling (ICA August 30, 2011)

Background. Richard Dowling was charged with one count of abuse of a family or household member. HRS § 709-906. At trial, Dowling's son was shown a series of photographs. He said that the photographs depict bruises on his legs. The son testified that he finished vacuuming the house and put the vacuum away in the closet. However, he could not close the door because the rug was stuck under it. The door blocked Dowling from going to his room and Dowling became angry with this son. Dowling asked his son if he caused the door to get stuck. His son repeatedly denied it and said it was the rug. Dowling thought his son was lying. Dowling pushed his son on the shoulder and he fell onto a bed. Dowling hit the son twice on his leg. The son also testified that Dowling might have punched him with a closed fist. The son testified that it hurt a little bit. The son told his great-grandmother about the incident one week later. He said that some of the bruises on his leg were caused by his father, but others were caused by a wheelbarrow when he was cleaning the yard.

The great-grandmother testified that after church services, the son asked if he could come over for lunch. When they got into the car, he started to cry and showed her his bruises. Dowling's wife testified that the son was complaining about having to vacuum the house. She also testified that the son denied three times that he had shoved the closet door stuck. Although she didn't see Dowling hit their son, she did see saw a gesture by Dowling that had her conclude that he did hit him. The son admitted to her that he shoved the door. She told him to continue doing his chores. She admitted seeing bruises a few days later, but he did not seem anxious.

Dowling testified that he saw his son putting the vacuum away and got the door stuck. He confronted his son about it and became angry when he lied to him and his wife. He put him on a bed and spanked him with an open palm.

The family court found the son's testimony more credible. The family court acknowledged the parental discipline defense. The family court also noted that there was no substantial bodily injury, but found that Dowling caused mental distress to his son. The family court found Dowling guilty. He appealed.

Parental Discipline. The parental discipline defense requires the defendant to show (1) the defendant was a parent or guardian; (2) the force was used against a minor for whose care and supervision the defendant was responsible; (3) the use of force was with due regard to the age and size of the minor and was reasonably related to the purpose of safeguarding or promoting the welfare of the minor; and (4) the force was not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage. HRS § 703-309; State v. Crouser, 81 Hawai'i 5, 10-11, 911 P.2d 725, 730-31 (1996). The prosecution must also "disprove beyond a reasonable doubt facts negativing the justification defense." Id.

Extreme Mental Distress, not just Mental Distress. The prosecution must disprove that "[t]he force used [was] not designed to cause or known to create a risk of causing . . . extreme pain or mental distress[.]" HRS § 703-309(1)(b). According to the ICA, the word "extreme" clearly modifies "pain or mental distress." The ICA also noted that the HSC in dicta interpreted the statute to mean extreme mental distress. See State v. DeLeon, 72 Haw. 241, 244, 813 P.2d 1382, 1384 (1991) (pain inflicted by parent "did not come, in degree, anywhere near . . . extreme mental distress"); State v. Crouser, 81 Hawai'i at 12-13, 911 P.2d at 732-33 (prohibited results cannot be "extreme mental distress"). This meant that mere mental distress is not enough. The prosecution must disprove "extreme mental distress."

So What's Extreme Mental Distress? "[E]xtreme mental distress" is not statutorily defined, and there are no Hawai'i cases interpreting the words. However, "[t]he terms 'emotional distress,' 'mental anguish,' and 'mental distress' are synonymous." First Ins. Co. of Hawai'i Ltd., v. Lawrence, 77 Hawai'i 2, 7 n. 9, 881 P.2d 489, 494 n. 9 (1994). Similarly, in Rodrigues v. State, 52 Haw. 156, 172 P.2d 509 (1970), the HSC recognized the tort of negligent infliction of mental distress. In doing so, the HSC held that "a serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." Id. at 173, 472 P.2d at 520. Moreover, according to the ICA, the Legislature cautioned that this parental discipline defense "should be interpreted in light of the age of the child." S. Stand. Comm. Rep. No. 2493, 1992 Senate Journal, at 1121.

None found here. According to the ICA, the family court found that there was only mental distress and there was nothing in the record establishing extreme mental distress was designed to be inflicted on the child. Moreover, even if the family court did employ the proper standard--extreme mental distress--the ICA found that the prosecution failed to establish evidence disproving that his conduct was designed to inflict extreme mental distress.

The Force was not Excessive. The force used by the parent must also be given "with due regard to the age and size of the minor and [be] reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct[.]" HRS § 703-309(1)(a). Dowling presented evidence that his son had repeatedly lied to him and he spanked him. It would seem that once that was established, the burden would shift to the prosecution to disprove the defense. The ICA turned to State v. Matavale, 115 Hawai'i 149, 166 P.3d 332 (2007), where the HSC held as a matter of law that the prosecution failed to disprove the parental discipline defense. In that case, a mother hit her daughter with a plastic backpack, clothes hanger, and the flat side of a brush leaving a few marks and bruises. Id. at 151-54, 166 P.3d 324-27. On the other hand, in State v. Miller, 105 Hawai'i 394, 98 P.3d 265 (App. 2004), the viciousness of the father's attack on his child--pulling hair, punches to the face, and body blows--"severed any relationship between the use of force and the welfare" of the child. Id. at 395, 98 P.3d at 266.

In comparing the two cases, the ICA concluded that this case was much closer to Matavale than Miller. It acknowledged that the use of force was a "gray area" that some would find inappropriate. But "gray areas are not resolved by criminalizing such parental discipline."

The Bookends of Reasonableness. The ICA examined the issue of whether the conduct was reasonable or sufficiently linked to the welfare of the child. It presented two very different cases. In Miller, you have a vicious attack that severs any relationship between the use of force and the need for discipline. On the other end you have Matavale, which the HSC had approved of as a matter of law. For the ICA, all it had to do was line the facts according to these two bookends. And it simply cut much closer to the Matavale side of the spectrum.

Chief Judge Nakamura's Concurrence and Dissent. Chief Judge Nakamura believed that the family court misapplied HRS § 703-309(1)(a). He also agreed with the majority that there was insufficient evidence establishing that Dowling's use of force resulted in mere "extreme mental distress." However, Chief Judge Nakamura believed that the should be a new trial to determine whether the prosecution could disprove that Dowling's use of force was "reasonably related to the purpose of safeguarding or promoting the welfare of the minor[.]" HRS § 703-309(1)(a). For the force to be "reasonably related," it "must be both reasonably proportional to the misconduct being punished and reasonably believed necessary to protect the welfare of the recipient." State v. Matavale, 115 Hawai'i at 163, 166 P.3d 336. Determining "reasonableness or excessiveness of physical punishment given a child by a parent is determined on a case-by-case basis and is dependent on the particular circumstances of the case." Id. at 165, 166 P.3d at 388.

Whether Dowling's use of force was reasonably proportional to the child's misconduct and reasonably believed to be necessary to protect the child's welfare is for the factfinder to decide. Chief Judge Nakamura recognized that the evidence could result in an acquittal. But the test for the sufficiency of the evidence is whether there was substantial evidence to support the verdict viewed in the light most favorable to the prosecution. State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998). Viewed in the light most favorable to the prosecution, Chief Judge Nakamura believed there was sufficient evidence supporting the family court's verdict. Thus, Chief Judge Nakamura would have vacated the conviction and remanded for trial. In a footnote, Chief Judge Nakamura wrote that the prosecution "only presented sufficient evidence to disprove the parental discipline based on HRS § 70[3]-309(1)(a) and not based on HRS § 70[3]-309(1)(b). For him, the retrial would be limited to disproving parental discipline based on paragraph (a).

How Many Parental Defenses are there? The Chief Judge disagreed with the majority that it should have simply reversed the conviction based on insufficient evidence. He wrote that there were two possible forms of the parental discipline defense and that the family court only ruled on one, albeit erroneously. For the Chief Judge, parental discipline could be a use of force that did not result in extreme pain or mental distress under HRS § 703-309(b), or it could be the use of force that was designed to be reasonably proportional to the misconduct under paragraph (a).

The statute, however, identifies the paragraphs in the conjunctive. It seems that the use of force must be reasonable proportional to the child's misconduct and it cannot be designed to result in extreme pain or mental distress. HRS § 703-309. The majority sort of takes this position. The majority read the paragraphs as two necessary elements to the defense. Thus, the family court erred in finding sufficient evidence to disprove the defense that Dowling's force was not designed to result in extreme mental distress. If that is necessary to defeat the defense, then that could have ended the analysis. But instead, the majority moves on to address the other part of the defense: whether there was sufficient evidence to disprove that Dowling's force was reasonably related to the son's misconduct. Was that necessary if both need to be disproved?

HSC: A Police Chase is one long Seizure

2011-09-01T18:19:00.001-10:00

State v. Tominiko (HSC August 26, 2011)

Background. Robert Tominiko was charged with operating a vehicle while under the influence of an intoxicant (HRS § 291E-61) and driving without motor vehicle insurance. The complaint alleged that in the OUI took place on August 2, 2008 in Honolulu, but it did not allege that it took place on a public roadway. The other count alleged that the driving took place on the same day and in the same place, and that it did take place on a public street, road, or highway.

Tominiko did not object to the sufficiency of the complaint. The no-insurance count was dismissed. Tominiko, however, moved to suppress evidence on the grounds that the police officer did not have reasonable suspicion to detain him.

At the hearing on the motion, Officer Antwan Stuart testified he was on duty around midnight, when he was dispatched to investigate a report of a group of people arguing at an intersection in Kalihi. He approached a group of about 15 to 20 people at the intersection drinking beer and soda, and eating. People started to pick up their things and run or walk away when he arrived. Tominiko did not leave in a hurry.

Officer Stuart approached Tominiko as he walked to his car, and asked for his identification. He explained that he wanted to question Tominiko about whether a fight or argument did take place. Tominiko mumbled something, kept walking, got into his car, and tried to start it. Officer Stuart followed Tominko and ordered him out of the vehicle. Tominiko ignored him, started his car, and slowly drove away. He got about seven feet before traffic forced him to stop.

Officer Stuart approached Tominiko's vehicle and shined a flashlight into the car. He saw two empty 40-oz. of Olde English in the car. Officer Stuart ordered Tominiko to turn off his car and provide an ID. Tominko said he left his license at home, but he had a state identification card.

On cross-examination, Officer Stuart admitted that he could not determine if there had been an argument. No one was fighting when he arrived. And he could not remember if Tominiko was drinking beer. The district court denied the motion to suppress. Tominiko was found guilty. The ICA affirmed.

Sufficiency of the Charge. When there is no objection to the sufficiency of the pleading before the trial court, the appellate courts review the pleading under a liberal construction standard. State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019 (1983). The court "will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime." Id. Under this standard, a single count "can be reasonably construed to charge a crime . . . by [an] examination of the charge as a whole." State v. Elliot, 77 Hawai'i 309, 312, 884 P.2d 372, 375 (1994).

No Objection, No Allegation of Public Street or Highway, No Problem. Tominiko argued for the first time on appeal that the OUI count did not allege that it took place on a public street or highway, and, thus, it was defective. State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009). The HSC, however, noted that unlike Wheeler, there was no objection raised below and under the liberal construction approach, the court examined the charge as a whole and the two counts can be read together. Both counts relate to the driving a motor vehicle on August 2 in Honolulu. The HSC reasonably inferred that they refer to the same incident and thus, the OUI charge infers that it took place on a public street or highway.

Dismissal Doesn't Matter. The HSC noted that the dismissal of the no-insurance count, which included the crucial public-highway language, was irrelevant in examining the sufficiency of the pleading. First, this is still the liberal construction approach and the HSC is afforded wide latitude in construing the complaint. Secondly, when liberally construed, Tominiko was afforded notice that he was being charged with conduct taking place on a public highway. This was enough for the majority on the HSC.

Seizure Arose When Police Ordered Defendant out of the car. The state and federal constitutions confer a right to be free from unreasonable searches and seizures. Haw. Const. Art. I, Sec. 7; U.S. Const. Am. IV. Under the Hawai'i Constitution, a "person is seized if, given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave." State v. Kearns, 75 Haw. 558, 566, 867 P.2d 903, 907 (1994). Here, the HSC, held that Tominiko was seized when the police officer commanded him to get out of his car. No reasonable person, according to the HSC, would have felt free to leave when the officer ordered Tominiko to get out of his car.

. . . And he had no Reasonable Suspicion to do so. "[T]he police may temporarily detain an individual if they have a reasonable suspicion based on specific and articulable facts that criminal activity is afoot." Id. at 569, 867 P.2d at 908. "The ultimate test in these situations must be whether from the facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate." State v. Melear, 63 Haw. 488, 493, 460 P.2d 619, 624 (1981). Whether a police officer had reasonable suspicion to stop someone is based on a totality of the circumstances. State v. Spillner, 116 Hawai'i 351, 357, 173 P.3d 498, 504 (2007).

Reasonable Suspicion is for one, not all. According ot the HSC, the police did not have evidence that Tominiko--as opposed to others in his group--had committed or was about to commit a crime. See, e.g., Chandler v. Miller, 520 U.S. 305, 313 (1997) (reasonable suspicion must be an "individualized suspicion of wrongdoing."). Officer Stuart might have seen some people with beers, but he did not see Tominiko. He also didn't see anyone fighting or making unreasonable noises. Moreover, the anonymous call that a group of people were arguing did not confer reasonable suspicion to stop Tominiko. A stop based on an informant "may . . . be predicated upon an informer's word, provided [that] the information carries enough indicial of reliability." State v. Temple, 65 Haw. 261, 270, 650 P.2d 1358, 1364 (1982). According to the HSC, the call was not backed by Officer Stuart's observations. There was nothing the officer saw that suggested Tominiko had been fighting or arguing.

Walk, Don't Run. The HSC also noted that Tominiko's walk to his car was not reasonable suspicion of any criminal activity. "[T]he mere act of avoiding confrontation does not create an articulable suspicion." State v. Heapy, 113 Hawai'i 283, 294, 151 P.3d 764, 775 (2007). The HSC distinguished this case from Melear, where the defendant's flight from the police arose to probable cause. The HSC noted that in Melear, the defendant ran away after the police asked him to stop and show identification. But "[i]n this case, Tominiko mumbled something, walked to his car, and attempted to start it. Officer Stuart testified that Tominiko was the only person in the crowd that did not leave in a hurry."

So if you were to run away from a police officer that wanted your identification, that's probable cause. But here, if you simply mumble something and walk away, it's not. Like swimming pool rules: walk, don't run.

Two Seizures or just one? The HSC next took on the issue of how many seizures actually took place. The ICA concluded that there were two: the first arose when Officer Stuart told Tominiko to stop (and he didn't). The second arose when Tominiko stopped his car and when Officer Stuart caught up to him. The HSC rejected the ICA's conclusion and held that there was a single, unconstitutional seizure.

Under the Hawai'i Constitution, "we must evaluate the totality of the circumstances and decide whether or not a reasonably prudent person would believe he [or she] was free to go." State v. Quino, 74 Haw. 161, 170, 840 P.2d 358, 362 (1992). The HSC, relying on cases from other jurisdictions, held that police pursuit of a person can constitute a single, ongoing seizure. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996); Commonwealth v. Thibeau, 429 N.E.2d 1009 (Mass 1981). According to the HSC, "[i]f a seizure occurs when police officers start to chase a person, a seizure continues when the person runs after disobeying a command to stop." That meant that Tominiko was seized when Officer Stuart told him to stop and he continued to be seized when he took off and when the officer caught up to him. And when Officer Stuart saw the bottles in the car, Officer Stuart in a position he would not have been had Tominiko been free to go. See State v. Poaipuni, 98 Hawai'i 387, 49 P.3d 353 (2002). Thus, any evidence recovered as a result of the seizure should have been suppressed.

The Prosecutor's Saving Grace. In a footnote, the HSC carefully pointed out that this situation would have been quite different if the officer would have observed the contraband regardless of the officer's attempt to seize the person. In other words, prosecutors would have to show that the contraband would have been seen even if the officer hadn't attempted to seize the person.

And even if it were two Seizures, it Still Stays out. The prosecution cannot "use . . . evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police." State v. Fukusaku, 85 Hawai'i 462, 475, 946 P.2d 32, 45 (1997). Even if there were two distinct seizures, the evidence is fruit of the poisonous tree. The ultimate question is "[d]isregarding the prior illegality, would the police nevertheless have discovered the evidence?" State v. Poaipuni, 98 Hawai'i at 393, 49 P.3d at 359. Here, the officer had no evidence justifying Tominiko's arrest until he caught up to him and saw the beer bottles. This evidence obtained after the initial stop is a fruit of the poisonous tree because it was discovered by exploiting Officer Stuart's prior illegal seizure.

Justice Acoba's Dissent and Concurrence. Justice Acoba agreed with the HSC on the suppression issue. However, he disagreed with the majority's analysis on the sufficiency of the pleadings. Justice Acoba pointed out that a deficient pleading is a jurisdictional defect. State v. Cummings, 101 Hawai'i 139, 143, 63 P.3d 1109, 1113 (2003). The charge does more than provide notice of an offense. It must also state an offense in order confer jurisdiction. State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977); State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303. 310 (1995) ("omission of an essential element of the crime charged is a defect in substance rather than form."). Justice Acoba wrote that even under the liberal construction approach, the pleading for the OUI is inadequate. The no-insurance count was dismissed and there was no offense adequately stated that conferred jurisdiction. Justice Acoba turned to cases from other jurisdictions for the notion that once a charge is dismissed, it cannot be used by the factfinder for any purpose. See United States v. Holmes, 672 F.Supp.2d 739 (E.D. Va. 2009); People v. Harvey, 602 P.2d 396 (Cal. 1979); State v. Johnson, 2011 WL 2685606 (Conn. July 19, 2011). So for Justice Acoba, once a charge is dismissed, it cannot be used to construe the other count.

Justice Acoba also took issue with the liberal construction approach based on a failure to object. He pointed out that jurisdiction can and should be raised at any time in the course of a case. State v. Elliot, 77 Hawai'i 309, 311, 884 P.2d 372, 374 (1994). Moreover, as an appellate court, the HSC must make a sua sponte inquiry as to whether it has jurisdiction. If there is a jurisdictional defect, the court must dismiss the case. State v. Graybeard, 93 Hawai'i 513, 516, 6 P.3d 385, 388 (App. 2000).

The Remedy? Tominiko II? Justice Acoba's remedy is telling. Because there was no jurisdiction, he would have remanded the case back to the district court with an order to dismiss without prejudice. That would have allowed them to bring the entire case back again. It would have meant the defense would have brought another motion to suppress and, if it was denied, it would have wound its way back up the HSC.

Prosecutor's Accusation that Defendant "Benefited" from Attending his own Trial Violated Confrontation Clause

2011-08-26T15:47:00.004-10:00

State v. Walsh (HSC August 23, 2011)

Background. Timothy Walsh was charged with assault in the second degree. HRS § 707-711(1)(b). Walsh was present at trial, including jury selection. At trial, there was evidence that Walsh was outside of Ocean's Grill and Bar in Kihei at around 1:30 in the morning arguing with his sister, Stephanie Walsh. A different group intervened and five men attacked Walsh. Walsh was punched, kicked, pushed and stomped on. Walsh started to slump away from the fracas and as he started moving away he swung at Kapena Kramer. Kramer broke his jaw. Walsh testified that he swung blindly as he was trying to get away from the mob attacking him. The bouncer at Ocean's testified. According to him, Walsh was calm, cool, and collected. Walsh was not cut or hurt when he approached Kramer and punched him. The bouncer believed that Walsh "blind sided a helpless person." By the time the police showed up, the entire affray was over.

During her closing argument, the prosecutor commented on Walsh's testimony:

Some of you during voir dire and jury selection were asked about what you would look at, and the defense went into great detail. Remember one thing that was asked by me to [Walsh]? You know, [Walsh] first of all, is entitled, since he's on trial here, is entitled to hear and see all the witnesses. But with that becomes the facts [sic] that he's benefitted from seeing all these witnesses. Before he got up on that stand, he saw each and every one of the witnesses, heard what they were going to say.

What's important about that is not only that, he heard the voir diring questions, which some of you had mentioned, I believe you said, well, you know, if they looked at me in the eye. Okay, so he gets up here and looks each one of you in the eye. See how sincere I am? Does that mean you're sincere?

. . . .

But the fact of the matter is it is important that when the Court has read you those instructions about . . . the credibility of witnesses, yes, you take into consideration all those items such as their appearance and demeanor, their manner of testifying . . . the opportunity for acquiring information . . . .

But don't get fooled into a position where somebody can look you in the eye, they must be telling the truth. If you know how to look somebody in the eye, you can still lie.

Walsh's counsel did not object. The jury found Walsh guilty as charged. Walsh appealed and the ICA vacated the conviction and remanded for new trial on the grounds that the prosecutor committed misconduct that was plain error. The prosecution petitioned for certiorari.

The Prosecutor's Comments were Plain Error (still). The HSC first rejected the prosecution's claim that the comments about Walsh's testimony and his demeanor were not plain error. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Hawai'i Rules of Penal Procedure Rule 52(b); State v. Wakisaka, 102 Hawai'i 504, 513, 78 P.3d 317, 326 (2003) ("If defense counsel does not object at trial to prosecutorial misconduct," court may recognize plain error "when the error committed affects substantial rights of the defendant."). According to the HSC, the issue here was whether the prosecutor's comments violated the Confrontation Clause in the Hawai'i Constitution. The right of confrontation is a substantial right. State v. Kassebeer, 118 Hawai'i 493, 516, 193 p.3d 409, 432 (2008). The HSC also noted that the comment could potentially chill the defendant's right to be present at every critical stage of the trial. That right is also a substantial one. See Onaka v. Onaka, 112 Hawai'i 374, 380, 146 P.3d 89, 95 (2006).

The Prosecutor Cannot Suggest that a Defendant Tailored his or her Testimony to the Evidence Presented at Trial. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused[.]" Haw. Const. Art. I, Sec. 14. Under the state confrontation clause, a prosecutor cannot "make generic accusations during closing argument that a defendant tailored his [or her] testimony based solely on the defendant's exercise of his [or her] constitutional right to be present during the trial." State v. Mattson, 122 Hawai'i 312, 326, 226 P.3d 482, 496 (2010).

The prosecution argued here that there was no generic accusation because there was no express accusation. The HSC rejected this argument based on cases from other jurisdictions. Portuondo v. Agard, 529 U.S. 61 (2000) (Ginsburg, J., dissenting); Hart v. United States, 538 A.2d 1146, 1149 (D.C.C.A. 1988); State v. Jones, 580 A.2d 161 (Me. 1990); Martinez v. People, 244 P.3d 135, 141 (Colo. 2010). According to the HSC, the prosecutor may not have expressly accused Walsh of tailoring his testimony, but she did argue that he benefitted from hearing the evidence presented at trial. This comment left the jurors with the impression that Walsh was tailoring his testimony because he exercised his right to be present at trial.

Prosecutor also Shouldn't have Referred back to Voir Dire Answers. The HSC also examined the prosecutor's reliance on voir dire answers during her closing argument. Prosecutors may "state, discuss, and comment on the evidence as well as . . . draw all reasonable inferences from the evidence." State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996). Relying on cases from other jurisdictions and implicit in the standard jury instructions, the HSC held that juror's responses or even a potential juror's response are not evidence. State v. Ashley, 22 So.3d 1045, 1059 (La. Ct. App. 2009). Thus, if the prosecution wanted to impeach Walsh "through the use of voir dire comments, it should have proffered the comments into evidence." And because it was not evidence, the prosecutor cannot rely on voir dire responses in her accusation against Walsh that he was tailoring his testimony. The HSC made it clear that Mattson requires the prosecutor to base the accusation on evidence, not on the mere fact that the defendant was present throughout the trial.

Looking at the Jury is not a Crime. The HSC also took issue with the fact that the prosecutor attacked Walsh's ability to look at the jury while he testified. Looking at the jury, according to the HSC, "is not an unnatural or extraordinary act[.]" This kind of argument would "invite the jury to convict on the basis of conduct as consistent with innocence as with guilt[.]" Portuondo, 529 U.S. at 79 (Ginsburg, J. dissenting, joined by Souter, J.). It is "not only improper, but would also disregard the truth-seeking purpose of trial[.]" Id.

The Error is not Harmless. Lastly, the HSC examined whether the prosecutorial misconduct was harmless beyond a reasonable doubt. Plainly erroneous misconduct affects the substantial rights of the defendant. State v. Wakisaka, 102 Hawai'i at 513, 78 P.3d at 326. "In order to determine whether a defendant's substantial rights have been affected[,] the court must determine whether there is a reasonable possibility that the error might have contributed to conviction." State v. Murray, 116 Hawai'i 3, 14 n. 9, 169 P.3d 955, 966 n. 9 (2007). This is based on three factors (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant. State v. Mainaaupo, 117 Hawai'i 235, 252, 178 P.3d 1, 18 (2008). The HSC held that all three factors weighed in Walsh's favor.

First, the misconduct directed the jury away from the evidence and invited them to assess Walsh's credibility based on his presence throughout the trial. This infringed on his constitutional rights. Second, there was no curative instruction. Finally, the evidence against Walsh is not overwhelming. It turned largely on Walsh's credibility. Thus, it was likely that the error might have contributed to the conviction. State v. Pacheco, 96 Hawai'i 83, 97, 26 P.3d 572, 586 (2001); State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986).

A Double Plain Error Analysis? The majority's structure of this opinion is a bit different. It starts off with a plain error analysis because the defense did not object to the comment. At first, it seems that if the error affects a defendant's "substantial rights," then the court can recognize plain error. Seems simple enough, but first there must be an error. So what should come first? The ICA applied the plain error analysis at the end of the analysis. To confuse things further, the HSC applied a harmless error analysis after finding that the comment was erroneous. Does this mean that plain error and harmless error are two different tests? Not really, in footnote, the HSC explained how the plain error analysis leads to the three-step harmless error analysis. Which then makes the initial plain-error analysis even more troubling.

Chief Justice Recktenwald's Concurrence. Chief Justice Recktenwald took a very different approach, but arrived to the same conclusion. For him, the first issue was whether a prosecutor could comment on the demeanor of a testifying defendant and whether a prosecutor can comment on voir dire statements. Finally, Chief Justice Recktenwald examined the comments in light of Mattson. Justice Nakayama joined.

CJ: Prosecutors Should not have to Characterize "Testimonial Conduct" on the Record. The Chief Justice believed that a prosecutor can comment on a testifying defendant's demeanor and mannerisms during closing argument. He relied primarily on cases from other jurisdictions. People v. Edelbacher, 766 P.2d 1, 30 (Cal. 1989); Patty v. State, 6 So.2d 399, 400 (Ala. 1942); State v. Fogg, 119 A. 799, 801 (N.H. 1923); Commonwealth v. Parente, 440 A.2d 549, 554 (Pa. Super. Ct. 1982); Good v. State, 723 S.W.2d 734, 736 (Tex. Crim. App. 1986). There are a line of other cases, noted the Chief Justice, that have held that the demeanor while testifying is also evidence in addition to the actual testimony. United States v. Modica, 663 F.2d 1173, 1180 (2d Cir. 1981). And although the majority agreed that commenting on the demeanor of the defendant while on the stand was within bounds, the CJ disagreed with the majority's notion that the demeanor should be placed on the record.

According to the CJ, this "rule is unduly restrictive. Trial lawyers will be compelled to ask the court, in the midst of testimony, to note observations of demeanor which may be possible to be useful in summation. Moreover, such descriptions are likely to be met with objections and counter-descriptions from opposing counsel. Finally, even disregarding the additional interruptions, some non-verbal cues, such as distinctly uncomfortable appearance, are not susceptible to verbal description." Thus, the CJ believed that the prosecutor's comments about Walsh's ability to look the jurors in the eye was "testimonial conduct" that constituted evidence worthy of comment during her closing argument.

CJ: References to Voir Dire Statements that Reflect the Common Experience of Jurors are Fair Game for Prosecutors. The CJ also agreed that statements during voir dire are not evidence. However, trial lawyers can appeal to the common experience of the jurors. If statements during voir dire reflect that common experience, then the CJ believed that a prosecutor should be able to refer to these statements during summation. Here, the comment had to do with eye contact. The CJ wrote that this should be within bounds of a prosecutor's summation.

So Why is this a Concurrence? The CJ, and Justice Nakayama, believed that the prosecutor's comment that Walsh "benefitted from seeing all [the] witnesses" was an improper generic tailoring in violation of the Confrontation Clause. There was no other explanation.

No Motion, No Good Cause, No Jurisdiction (Even if you do Rely on the Order Extending time to file)

2011-07-29T14:25:00.006-10:00

Cabral v. State (ICA July 28, 2011)

Background. The Cabrals and other plaintiffs sued Joni Scott and the State of Hawai'i. The lawsuit stems from a fatal car accident on Highway 11 on the Big Island. The plaintiffs settled with Scott, but proceeded to a bench trial against the State. The circuit court entered judgment in favor of the State and dismissed all remaining claims on April 20, 2007. Ten days later, the plaintiffs filed a motion for reconsideration. The circuit court denied the motion on June 7, 2007.

On July 6, 2007, the parties submitted a one-page stipulation for a two-week extension to file a notice of appeal. The circuit court approved and ordered the extension. The stipulation did not assert any of the grounds for the extension and the circuit court approved the stipulation without making any findings. On July 18, 2007, the plaintiffs presented an ex-parte motion to extend time for filing a notice of appeal on the grounds that the parties were in settlement negotiations and a motion to withdraw was scheduled to be heard on September 5. On July 23--the last day of the two-week extension--the plaintiffs filed their notice of appeal. On September 7, 2007, the circuit court signed and filed the order granting the ex-parte motion and extended the time to file to August 8, 2007. The ICA directed the parties to briefs regarding appellate jurisdiction.

Appellate Jurisdiction 101: Timely Filing a Notice of Appeal. "It is axiomatic that [courts of appeal] are under an obligation to ensure that [they have] jurisdiction to hear and determine each case and to dismiss an appeal on [their] own where [they] conclude [they] lack jurisdiction." Brooks v. Dana Nance & Co., 113 Hawai'i 406, 412, 153 P.3d 1091, 1097 (2007). An untimely notice of appeal requires a dismissal for lack of jurisdiction "that can neither be waived by the parties nor disregarded by the court in the exercise of juridical discretion." Wong v. Wong, 79 Hawai'i 26, 29, 897 P.2d 953, 956 (1995).

"An appeal shall be taken in the manner and within the time provided by the rules of the court." HRS § 641-1(c). In civil cases, a notice of appeal must be filed within thirty days after entry of an appealable final judgment. Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(a)(1). However, the trial court or agency can extend the time for filing a notice of appeal "upon a showing of good cause[.]" HRAP Rule 4(a)(4)(A). A party may file an ex-parte motion for extension and no "extension shall exceed 30 days[.]" Id. These rules are inflexible because "no court or judge or justice is authorized to change the jurisdictional requirements" in HRAP Rule 4. HRAP Rule 26(b).

The Tricky Thirty-day Clock . . . Here, the ICA first identified the final appealable order. When a case involves multiple claims, the judgment is not considered a "final judgment" unless the judgment, "on its face, show[s] finality as to all claims against all parties." Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119-20, 869 P.2d 1334, 1338-39 (1994). In this case, the judgment in favor of the State and dismissing all remaining claims was entered on April 20, 2007. That, according to the ICA, was the final judgment and the parties had thirty days to file their notice of appeal.

But because the plaintiffs filed a motion for reconsideration, the thirty-day clock is tolled until that motion was decided or the passing of 90 days, whichever came first. See HRAP Rule 4(a)(3). The circuit court denied the motion for reconsideration on June 7, 2007, which extended the time for filing a notice of appeal to July 7, 2007. So far, so good.

The Trouble with Stipulating. The issue in this case centers around HRAP Rule 4(a)(4)(A):

The court or agency appealed from, upon a showing of good cause, may extend the time for filing a notice of appeal upon motion filed within the time prescribed . . . of this rule.

According to the ICA, the lower court cannot extend the time to file a notice of appeal unless (1) a motion was filed and (2) upon a showing of good cause. This case had neither. The stipulation was "an unauthorized procedural device." The ICA also held that there was no showing of "good cause," that is, "a cause that is beyond the movant's control." Hall v. Hall, 96 Hawai'i 105, 110 n. 3, 26 P.3d 594, 599 n. 3 (App. 2001).

And Needed more time to Settle is not "Good Cause." Even if the stipulation did state that an extension was needed to facilitate settlement negotiations, that would not amount to "good cause." In Hall, the ICA held that "more time to seek settlement before incurring the cost of filing an appeal is not 'good cause' for extending the time to file a notice of appeal; and . . . rarely will there be a situation where a motion based on that desire and presented within the first 30 days will be validly granted[.]" Id. at 110, n. 3, 26 P.3d at 599, n. 3.

Extensions for Time AFTER the 30 days has run. Having held that there was no initial motion and no good cause shown, the thirty-day clock expired thereby making the ex parte motion for another extension a request for more time after the expiration of the proscribed time. An appellant can seek an extension of time for filing a notice of appeal after the time has run out so long as the court or agency finds "excusable neglect." HRAP Rule 4(a)(4)(B). Furthermore, a motion for extension of time after the 30-day clock requires notice of the motion to all parties involved. Id.

Delay was not an "Excusable Neglect." Excusable neglect arises when the "cause of the delay is some mistake or inadvertence within the control of the movant." Enos v. Pac. Transfer & Warehouse, Inc., 80 Hawai'i 345, 352, 910 P.2d 116, 123 (1996). After surveying the few Hawai'i cases that addressed "excusable neglect," the ICA concluded that excusable neglect often dealt with the misconstruction or misapplication of the law. Id.; Hall, 96 Hawai'i at 112, 26 P.3d at 601. Unlike Enos and Hall, the plaintiffs in this case based its motion on settlement efforts and a pending motion to withdraw. This, according to the ICA, was not excusable neglect. It was more of a request "that the deadline be postponed while other events in the case are attended to."

Chief Judge Nakamura's Dissent. Chief Judge Nakamura agreed with the majority that the circuit court erred in approving the stipulation and extending the time to file a notice of appeal for two weeks. However, because the stipulation was submitted within the original 30-day clock and because the plaintiffs later relied upon the erroneous order, the rules should not be strictly enforced.

Chief Judge Nakamura would have applied an exception to the rules based on equity. He turned to cases from the Supreme Court of the United States that contemplate the "unique circumstances exception" to the time limitations for filing a notice of appeal. In those cases, the appellant sought an extension from the trial court, which was granted, and then filed the notice of appeal in reliance on the lower court's extension. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962); Thompson v. Immigration and Naturalization Service, 375 U.S. 384 (1964). Those cases were recently overruled by the SCOTUS in Bowles v. Russell, 551 U.S. 205, 214 (2007), on the grounds that they created equitable exceptions to jurisdictional requirements.

Nonetheless, Chief Judge Nakamura noted that there were four dissenters in Bowles. Chief Judge Nakamura wrote that it seemed reasonable for the plaintiffs to rely on the trial court's order issued before the expiration of the original thirty-day clock. If the trial court denied the stipulation, the plaintiffs still could have timely filed their notice of appeal. "We require and expect parties to comply with court orders. We should permit them to rely on court orders in determining whether the time for filing a notice of appeal has expired."

Equity v. Law. Here, the tensions between the law and equity still play out. The majority followed strictly the letter of the rules. So strictly, in fact, that it frowned upon the use of a stipulation rather than a motion. Chief Judge Nakamura's dissent does not appear to dispute the legal analysis of the majority. In fact he agreed that the circuit court erred in extending the time to file based on the one-page stipulation. The dissent arises over the application of an equitable remedy. It was obvious to the Chief Judge that the plaintiffs relied on the erroneous order.

This case raises an even broader question: who is ultimately responsible? The majority seems to place the onus on the plaintiffs who have not following the rules and submitting a stipulation. The Chief Judge, however, took a position that would not penalize a party that relied on a trial court's order--no matter how erroneous. The issue has divided the ICA. If this goes up to the HSC, it is sure to split that court too.

TRO Procedures Withstand Rational Basis (and Strict Scrutiny)

2011-07-04T10:48:00.002-10:00

Hamilton v. Lethem (ICA June 30, 2011)

Background. Lily Hamilton filed a temporary restraining order (TRO) against Christy Lethem on behalf of their daughter, Amber. The TRO alleged three incidents in which Lethem physically assaulted Amber, threatened to physically assault her, and embarrassed her so badly that she suffered emotional distress. The TRO was granted and an evidentiary hearing was set.

At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again . . . . Don't make me hit you again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said that he was going to pull her out of school and that her younger sister was better than her "in this way."

Lethem testified at the hearing. He admitted that he had had a strained relationship with Hamilton and that they often argued because Amber was misbehaving. He spoke about the three incidents. He said that he never hit his daughter in the face, but did admit to hitting her shoulder in order to discipline her. As to the second incident, Lethem said that he was arguing with Amber and she tried to stand up and walk away from him. That was when he reached over and had her sit back down. He denied threatening to hit her. As to the third incident, Lethem denied blaming financial problems on his daughter.

The family court determined that no further action should be taken and allowed the 90-day TRO to run its course without issuing an injunction. The family court also concluded that the parental discipline defense in HRS § 703-309 did not apply. Lethem appealed the decision, and the ICA dismissed the case as moot. The HSC, however, introduced the collateral consequences exception to the mootness doctrine and ordered the ICA to resolve the case on the merits of Lethem's appeal. Hamilton v. Lethem, 119 Hawai'i 1, 193 P.3d 839 (2008).

The Constitutional Right to Raise Children. "No State shall . . . deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. Amend. XIV, Sec. 1. Similarly, "[n]o person shall be deprived of life, liberty or property without due process of law[.]" Haw. Const. Art. I, Sec. 5. Lethem argued that the TRO infringed on his constitutional right to discipline his daughter. "In determining whether a statute conflicts with the Due Process Class, we have applied two tests. If a fundamental right is implicated, the statute is subject to strict scrutiny. If, however, a fundamental right is not implicated, the statute is subject to the rational basis test." State v. Mallan, 86 Hawai'i 440, 451, 950 P.2d 178, 189 (1998). The first issue confronted by the ICA was whether the TRO statutory scheme infringes on a "fundamental right."

The State and federal constitutions recognize a right to conceive and raise children. In re Doe, 99 Hawai'i 522, 532, 57 P.3d 447, 457 (2002); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944). However, this right is not unlimited; parents are protected by the constitutions when they inflict excessive discipline. State v. Crouser, 81 Hawai'i 15, 5, 911 P.2d 725, 735 (1996); Prince, 321 U.S. at 167.

TROs do not Infringe Upon the Right to Raise Children. The ICA held that HRS Chapter 586 does not infringe upon the fundamental right to raise children. The statute protects "[p]hysical harm, bodily injury, assault" and "emotional distress." HRS § 586-1. According to the ICA, parents do not have the first to employ force "the legislature has deemed to be excessive and harmful to the child's welfare[.]" Crouser, 81 Hawai'i at 15, 911 P.2d at 735. Thus, the rational basis test applied.

"Under rational basis review, a statute must rationally further a legitimate state interest. A state interest is legitimate if it involves the public health, safety, or welfare." State v. Mallan, 86 Hawai'i at 451-52, 950 P.2d at 189-90. Here, the ICA held that the governmental interest in a family court TRO is to protect minors from physical and psychological harm. The TRO is reasonably related to furthering that interest. Accordingly, it does not violate Lethem's constitutional rights.

Strict Scrutiny too? The ICA noted obiter dictum that "Chapter 586 would withstand strict scrutiny as well." Under the strict scrutiny test, the statute is presumed "unconstitutional unless the state shows compelling state interests which justify such classifications, and that the laws are narrowly drawn to avoid unnecessary abridgements of constitutional rights." SCI Management Corp. v. Sims, 101 Hawai'i 438, 460, 71 P.3d 389, 411 (2003). According to the ICA, HRS chapter 586 "advances a compelling state interest in preventing harm to children." The State has strong interest in preventing child abuse. Crouser, 81 Hawai'i at 14, 911 P.2d at 734; Prince, 321 U.S. at 166. The ICA also noted that "HRS Chapter 586 is narrowly drawn to avoid unduly burdening the exercise of parental rights." The ICA explained that TROs prevent "domestic abuse," which is defined as acts or threats of "[p]hysical harm, bodily injury, assault" or a course of conduct that causes "extreme emotional distress." HRS § 586-1. There are also procedural safeguards that protect a parent's rights.

Parental Discipline Defense does not Apply to TROs. The ICA held that the family court did not err in refusing to apply the parental discipline defense. The parental discipline defense is limited to the Hawai'i Penal Code. HRS § 703-309. It does not expressly apply to TRO proceedings. The ICA noted that the definition of "domestic abuse" under HRS § 586-1 encompasses conduct that is broader than criminal domestic abuse defined by HRS § 709-906. Thus, the legislature intended the conduct giving rise to a TRO is broader than conduct giving rise to criminal liability.

TRO Procedure not in Violation of Procedural Due Process. The Due Process Clause requires "notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest" can take place. Guardianship of Carlsmith, 113 Hawai'i 236, 239, 151 P.3d 717, 720 (2007). When a deprivation takes place prior to the notice and hearing, the courts must consider three important factors: (1) the private interest at stake; (2) the government's interest and the interest of the party seeking the remedy; and (3) the probable value of additional or substitute procedural safeguards. Mathrews v. Eldridge, 424 U.S. 329, 335 (1976); Connecticut v. Doehr, 501 U.S. 1, 11 (1991).

The ICA examined the interest at stake: a parent's right to the custody, care, and rearing of his or her children. The ICA acknowledged that the TRO deprived Lethem of his right to care for his child. As for the second factor--the petitioner's interest and the government's "ancillary interests"--the ICA noted that victims of domestic violence have an interest in obtaining immediate relief from the abuse. The government also has an interest in protecting family and household members from harm. The State has a responsibility to protect children. For the third factor--the risk of erroneous deprivation, and the fairness and reliability of pre-deprivation procedures, the ICA ruled against Lethem. The ex parte TRO process requires petitioners to allege past acts domestic abuse. HRS § 586-3(c). It requires a sworn statement and a finding of probable cause that past acts have occurred and further abuse is imminent before a TRO may issue. HRS § 586-4(c). Moreover, there must be an immediate hearing on the TRO, at which the petitioner has the burden of proof. HRS § 586-5(b). The ICA held that these safeguards are adequate for Due Process purposes.

Passes on Claim that TRO is Gender-Biased. Lethem also argued that the TRO process is gender-biased in violation of the Equal Protection Clause. He argued that the ex parte process is "discriminatory against men" that leads to "gender profiling." The ICA held that Lethem waived this claim because he failed to raise a cogent argument. HRAP Rule 28(b)(7). The ICA again stated, in dicta, that there is little evidence of an equal protection violation.

The TRO statutes are gender neutral. Thus, in order to establish an equal-protection violation, there must be "evidence of a pattern of discriminatory enforcement against [men] so overwhelmingly that intent to discriminate can be inferred. Such a pattern of invidious discrimination, demonstrating an unequal application of the law extreme enough to show intentional discrimination is necessary because . . . disparate impact of legislation alone is not enough to make out an equal protection violation." State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 987 (1985). Lethem did not present this kind of evidence.

An Interesting Point . . . According to the ICA, Lethem needed to establish a pattern of discrimination giving rise to inferred discriminatory intent. So maybe there is an equal protection claim out there after all.

No Abuse of Discretion in Granting the TRO. The ICA also held that the family court did not abuse its discretion in granting the TRO against Lethem. There was sufficient evidence in the petition and at the hearing supporting the family court's findings.

What's the Issue? It appears that the question was whether there was sufficient evidence presented to the family court in order to support a finding of probable cause and issuance of an ex parte TRO. This is not unlike challenges to a district court's finding of probable cause to issue a search warrant. In those cases, "all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath." State v. Detroy, 102 Hawai'i 13, 18, 72 P.3d 485, 490 (2003). Here, the ICA relied on not only the petition, but the testimony at the hearing. It also reviewed the findings issued after the hearing for an abuse of discretion.

This is troubling. If the question was whether the family court had enough evidence to issue the ex parte TRO based on the petition, then the standard of review should be de novo, and the ICA should look no further than the four corners of the TRO petition. The hearing, the evidence presented at that hearing, and the family court's findings of fact would have no bearing on the question.

Public Employees have to go to the Hawai'i Labor Relations Board Before Attacking Their Union in Circuit Court

2011-07-04T08:56:00.002-10:00

Lee v. United Public Workers (ICA June 29, 2011)

Background. Amy Lee was an adult corrections officer for the Department of Public Safety and a member of the United Public Workers union. While working, she hurt her back and shoulder. The injuries left her unable to perform the usual and customary duties of an ACO. She returned to light duties and opted to participate in a State-run program in which she would be terminated if she could not find an alternative job. She was unable to find a suitable job and was terminated by the State. The UPW, at Lee's request, filed a grievance with the director of the Department of Public Safety. The collective bargaining agreement (CBA) provided that only the union could pursue the grievance once it was denied by the director of the department. The Department of Public Safety denied the grievance and the UPW notified Lee that it would not pursue the matter any further.

Lee filed a complaint in the circuit court against her union and employer. She alleged a "hybrid action" against UPW for breaching its duties of fair representation, good faith and fair dealing. Her claims against the State were based on its breach of the CBA. The defendants failed to answer the complaint and were defaulted. Lee sought a default judgment. She stipulated with the State to set aside the default judgment. UPW, however, filed a motion to set aside the default. The circuit court granted the motion on the condition that it pay half of the costs and fees incurred by Lee to get the default judgment: $6.14 in costs and $740.00 in fees. The circuit court reasoned that the other half was against the State. Both defendants filed motions to dismiss the complaint on the grounds that the Hawai'i Labor Relations Board had exclusive original jurisdiction. The motions were granted. Lee appealed.

The "Hybrid" Cause of Action. Employees must "exhaust any grievance procedures provided under a collective bargaining agreement before bringing a court action pursuant to the agreement." Poe v. Hawai'i Labor Relations Board, 105 Hawai'i 97, 101, 94 P.3d 652, 656 (2004). But "when the union wrongfully refuses to pursue an individual grievance, the employee is not left without recourse." Id. at 102, 94 P.3d at 657. The employee can bring a hybrid action "consist[ing] of two separate claims: (1) a claim against the employer alleging a breach of the collective bargaining agreement and (2) a claim against the union for breach of a duty of fair representation." Id. The union breaches its duty of fair representation "only when [the] union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190 (1967). This was the kind of action Lee brought against the State and UPW. The issue was not the legitimacy of the claim, but whether Lee should have brought it before the Hawai'i Labor Relations Board instead of the circuit court.

HRS § 89-14 Confers Exclusive Original Jurisdiction over Public-Sector Prohibited Practices. HRS chapter 89 regulates public-sector unions and employees. HRS § CITE. It also defines and identifies prohibited practices by public-sector employees, employers, and unions. HRS § 89-13. "Any controversy concerning prohibited practices may be submitted to the [Hawai'i Labor Relations Board] . . .; provided that the board shall have exclusive original jurisdiction over such a controversy[.]" HRS § 89-14. The board's decision may be appealed to the circuit court and ultimately the courts of appeal. Id.; Hawai'i Government Employees Ass'n v. Lingle, 124 Hawai'i 197, 203, 206-07, 239 P.3d 1, 7 (2010). The ICA noted that the statute conferring exclusive jurisdiction to the board was a legislative reaction to Winslow v. State, 2 Haw. App. 50, 56-57, 625 P.2d 1046, 1051-52 (1981), in which the ICA held that there was concurrent jurisdiction with the circuit court. The Legislature changed the language of the statute in order to confine jurisdiction to the board. That, according to the ICA, was made abundantly clear in the legislative history and in HGEA v. Lingle. Decisions by the board can be appealed to the circuit court for judicial review. HRS § 89-14; HRS § 91-14(a).

. . . And this is a Public-Sector Prohibited Practice. "Prohibited practices" include Lee's claims. The ICA pointed to two: the employer's willful violation of the CBA. HRS § 89-13(a)(8) and the union's refusal or failure to comply with HRS chapter 89. HRS § 89-13(b)(4).

In support of this holding, the ICA turned to Lepere v. UPW, 77 Hawai'i 471, 887 P.2d 1029 (1995). In that case, Lepere, like Lee, filed a complaint against his union in the circuit court. The ICA, in an unpublished memorandum opinion, affirmed the circuit court's dismissal based on a lack of subject matter jurisdiction. The HSC noted in passing that the "ICA properly concluded that the circuit court lacked subject matter jurisdiction[.]" Id. at 472, 887 P.2d at 1030.

Reliance on an Unpublished Disposition in Violation of HRAP Rule 35? The ICA expressly rejected Lee's argument that it could not rely on its own unpublished memorandum opinion pursuant to HRAP Rule 35, which only allows appellate courts to cite unpublished dispositions issued after July 1, 2008. The ICA explained that it did not rely on the unpublished Lepere "as precedent or persuasive value." Instead, the reliance was "to clarify what the supreme court meant in its published decision when it affirmed the ICA's jurisdictional holding."

Clarification v. Persuasion. Unpublished decisions "filed before July 1, 2008 shall not be cited in any other action or proceeding[.]" HRAP Rule 35(c)(1). Here, the ICA acknowledged that it did indeed "cite" to the unpublished memorandum opinion. However, it expressly stated that it did so only to clarify the HSC's published approval of its ruling. This raises two interesting questions about HRAP Rule 35. First, what does it mean to "cite"? Does the prohibition against "citing" a case permit clarifications like this one? Or does it simply ban all references for any purpose? The language of HRAP Rule 35 suggests the latter. Dispositions filed after July 1, 2008 may be "cited for persuasive value[.]" HRAP Rule 35(c)(2). Does this mean that those published before July 1, 2008 cannot be "cited" at all--even if it's just to clarify something?

Second, are the appellate courts themselves bound by HRAP 35(c)(1) at all? Clearly, appellate litigators are bound by it and cannot "cite" it. But that does not necessarily mean that the courts cannot point to its earlier unpublished opinions on its own.

Other Issues. The ICA rejected Lee's other contentions relating to her constitutional right to access courts, equal protection and due process claims. Finally, the ICA held that the circuit court did not abuse its discretion in cutting Lee's award for attorney's fees and costs in half. See Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 105, 176 P.3d 91, 104 (2008) (award of attorneys' fees reviewed for abuse of discretion.).

Default State of Mind Doesn't need to be Alleged when it can be Inferred

2011-06-23T19:32:00.000-10:00

State v. Nesmith (ICA June 22, 2011)

Background. Kevin Nesmith was charged by complaint of operating a vehicle under the influence of an toxicant:

On or about the 7th day of January , 2010, in the City and County of Honolulu, State of Hawaii, KEVIN K. NESMITH did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant . . . . KEVIN K. NESMITH is subject to sentencing as a first offender in accordance with Section 291E-61(1)(b) of the Hawaii Revised Statutes.

Nesmith moved to dismiss on the grounds that the complaint was deficient because it failed to allege the "essential fact" that Nesmith acted intentionally, knowingly, or recklessly. The prosecution opposed on the grounds that that was not an essential element. The district court denied the motion. Nesmith was tried, found guilty, sentenced, and appealed.

Essential Elements must be Alleged in the Charging Instrument. "It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged . . . ." State v. Wheeler, 121 Hawai'i 383, 391, 219 P.3d 1170, 1178 (2009). Essential elements are "(1) conduct; (2) attendant circumstances; and (3) results of conduct." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010); HRS § 702-205. The state of mind is not an element. State v. Klinge, 92 Hawai'i 577, 584 n. 3, 994 P.2d 509, 516 n. 3 (2000). However, the prosecution must prove the state of mind for each element beyond a reasonable doubt at trial. HRS §§ 701-114 and 702-204. The big issue in this case came down to whether the state of mind must be alleged along with the essential elements in the complaint. The ICA held it did not; at least not here.

The Default States of Mind. "When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly." HRS § 702-204. No state of mind is required for a "crime defined by statute other than [the Hawai'i Penal Code], insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears." HRS § 702-212(2).

"Legally Drunk" is an Absolute Liability Offense . . . Still. A person commits OUI when the person "if the person operates or assumes actual physical control of a vehicle . . . [w]ith .08 or more grams of alcohol per two hundred ten liters of breath[.]" HRS § 291E-61(a)(3). The predecessor to the current statute was HRS § 291-4(a)(2), which was interpreted to be an absolute liability offense. State v. Young, 8 Haw. App. 145, 153-54, 795 P.2d 285, 291 (1990). The ICA noted that there was no substantial difference in the statutes with regard to the mens rea. Accordingly, the ICA held that it was still an absolute liability offense requiring no state of mind and there was no error in failing to allege that portion of the complaint.

And as for the Other OUI . . . A person also commits OUI if the person is "under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty[.]" HRS § 291E-61(a)(1). The prosecution conceded that the complaint failed to allege the default states of mind--intentional, knowingly, and reckless--for this kind of OUI, but argued that the default states of mind could be inferred. The ICA held that the prosecution did not need to allege the default states of mind.

States of Mind can be Inferred. An indictment "need no allege that the offense was committed or the act done 'feloniously,' 'unlawfully,' wilfully', 'knowingly', maliciously,' 'with force an arms,' or otherwise except where such characterization is used int he statutory definition." HRS § 806-28. The ICA, in a footnote, extended this statute to other charging instruments. The OUI statute does not have a specified state of mind. Thus, according to the ICA, there was no need to allege the default states of mind. The ICA also turned to four cases.

In State v. Torres, 66 Haw. 281, 660 P.2d 522 (1983), the HSC held that for the crime of incest, the intentional state of mind could be inferred from the offense itself. "Incest as charged here is an offense where intent can be inferred because 'sexual intercourse' under the circumstances alleged could only be a willful act." The ICA came to a similar holding in State v. Kane, 3 Haw. App. 450, 652 P.2d 642 (1982), where it held that the offense of carrying on his or her person a pistol or revolver without a permit was the kind of crime "was sufficient to imply that Kane did so intentionally, knowingly, or recklessly." Id. at 458, 652 P.2d at 648. The HSC relied on Kane and held that the default states of mind can be inferred in alleging possession of a sawed-off rifle. State v. McDowell, 66 Haw. 650, 651, 672 P.2d 554, 555 (1983). Finally, there's Territory v. Tacuban, 40 Haw. 208 (1953), where the Territorial supreme court held that in charging a gambling offense, the "allegation of participation or taking part in a gambling game connotes guilty knowledge, and inferentially alleges scienter." Id. at 212.

Here, the ICA held that the default states of mind can be inferred in charging the offense of driving under the influence with an amount sufficient to impair normal mental faculties and protect against casualty. The ICA explained that impaired driving "creates a grave danger to public safety."

Introducing the Nesmith Analysis. The ICA seems to have created a step-by-step analysis for determining if the state of mind must be alleged. First, does the criminal statute provide a state of mind? If not, then the next question is whether the default states of mind apply. See HRS §§ 702-204 and 702-212. If they do apply and must be proven beyond a reasonable doubt at trial, then the final question is whether the default states of mens rea can be inferred from the nature of offense alleged. Here, the ICA like Torres, Kane, McDowell, and Tacuban, the default states of mind can be inferred from the offense of driving with an amount of alcohol that impairs the person's normal mental faculties and ability to guard against casualty.

This raises tricky questions. Are there any offenses in which the default states of mind cannot be inferred? In other words, are there offenses in which the default states of mind apply--meaning that it must be proven beyond a reasonable doubt--but they are the kind of offenses in which the default states of mind cannot be inferred from the conduct? Or has the ICA created a situation so that every offense in which the default states of mind apply is the kind of offense where mens rea can be inferred? Is this an analysis with the same answer every time? Perhaps what creates this oddity is the fact that the ICA never examined whether HRS § 291E-61(a)(1) indeed does carry the default states of mind. The prosecution conceded that it did apply, and the ICA went along with that concession without examining it independently.

Judge Foley's Concurrence. Judge Foley wrote that the pleading was consistent with State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), and thus sufficient. That was all he wrote. It is unclear if he agreed with the majority's analyses.

Parental Discipline Defense Available when Conduct Results in (but not Intended to Cause) Substantial Bodily Injury

2011-06-11T11:40:00.002-10:00

State v. Kikuta(HSC June 8, 2011)

Background. Cedric Kikuta was charged with assault in the second degree. HRS § 707-711(1). And Assault in the third degree. HRS § 707-712. At trial, his stepson, Justin, testified that when he was fourteen at the time of the incident. He was watching t.v. with his cousin, Chad, when Kikuta told him to feed the dog. He did. Then Kikuta noticed that the dog left a "stain" on the carpeted floor. Justin told him that he couldn't get the stain out. Kikuta said that if he could get it out, Justin is grounded for a year. Justin countered that if Kikuta could not, he could kick Kikuta's leg. Kikuta's leg was in a cast because he was recovering from surgery and walked around in crutches. Kikuta agreed. Kikuta left Justin's room. Then, according to Justin, Kikuta burst back into his room and started to push him. Justin grabbed one of the crutches and tried to get away. Kikuta then punched Justin in the face and head several times. Ultimately, Justin's face was swollen and his tooth was chipped. On cross-examination, Justin admitted that while it may have looked like he was going to hit Kikuta with the crutch, he wasn't going to. Chad, the cousin, also testified. Chad's testimony corroborated most of Justin's, and confirmed that Justin grabbed the crutch in a defense way. Kikuta testified. Kikuta testified that Justin was not following his instructions to feed the dog and clean up after its mess. Justin was being difficult and argumentative. He also testified that he did not notice Justin's injuries after hitting him. According to him, Justin was swinging the crutch at him and hit him a few times.

The family court refused to instruct the jury on parental discipline as a defense on the grounds that Kikuta caused substantial bodily injury. The family court also refused to give a mutual affray instruction accompanying the lesser-included assault in the third degree charge. The ICA vacated and remanded on the grounds that the parental discipline and mutual affray instructions should have been given. The prosecution petitioned for certiorari.

The Parental Discipline Defense. The parental discipline defense is composed of two elements:

The use of force upon or toward the person of another is justifiable under the following circumstances:

(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:

(a) The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and

(b) The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.

HRS § 703-309(1)(a).

The Defense is Available if it Resulted in Substantial Bodily Injury, not Intended. The HSC examined the language of the section regarding the use of force. According to the HSC, the language plainly and unambiguously precludes the defense if the force was intended to cause substantial bodily injury. It does not, however, preclude the defense if the force resulted in substantial bodily injury. Thus, according to the HSC, there are cases where the conduct is justified that results in substantial bodily injury. The circuit court erred in refusing to instruct the jury on parental discipline. Here, there was some evidence that Kikuta pushed Justin harder than he intended to because he was off balance. He further testified that he punched Justin because he wanted him to let go of his crutch and was not aiming for his face. Concluding that Kikuta hit Justin in order to cause substantial bodily injury is for the jury to decide. State v. Juhn, 83 Hawai'i 472, 483, 927 P.2d 1355, 1366 (1996). A defendant is "entitled to have the trier of fact consider a defense having any support in the evidence no matter how weak, inconclusive, or unsatisfactory the evidence" may be. State v. Riveira, 59 Haw. 148, 153, 577 P.2d 793, 797 (1978).

The Error is Not Harmless. The HSC also rejected the prosecution's argument that the failure to give the instruction was harmless. An error is not harmless beyond a reasonable doubt if "there is a reasonable possibility that it might have contributed to . . . the conviction." See State v. Roman, 119 Hawai'i 468, 482, 199 P.3d 57, 71-72 (2008). The HSC noted that this was a jury trial. There is absolutely no way to determine how the jury would have resolved the conflicting evidence with the parental discipline instruction. Thus, there was a reasonable possibility that the failure to give the instruction might have contributed to the conviction.

Mutual Consent, the "Mitigating" Defense. Kikuta was also found guilty of assault in the third degree. Assault in the third degree is a "misdemeanor unless committed in a fight or scuffle entered into by mutual consent." HRS § 707-712(2). Then it becomes a petty misdemeanor. Id. The family court did not give an instruction on mutual affray. The ICA concluded that that failure to instruct was plain error. The HSC agreed with the ICA.

Defining Mutual Consent. The HSC held that there was some evidence of a mutual consent, a term that is undefined in the Hawai'i Penal Code. When there is no statutory definition, courts "[r]esort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms." State v. Kalama, 94 Hawai'i 60, 63 n. 6, 8 P.3d 1224, 1227 n. 6 (2000). "Mutual" means "reciprocal" or "belonging to two parties." Black's Law Dictionary 1115 (9th ed. 2009). "Consent" includes an "[a]greement, approval or permission as to some act[.]" Id. at 346. Consent can be express or implied from conduct. Id.; see also State v. Hanson, 97 Hawai'i 71, 75, 34 P.3d 1, 5 (2001). The HSC held that a "mutual consent" "requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct."

Here, according to the HSC, there was some evidence of a mutual affray. There was evidence that Kikuta pushed Justin and that Justin responded by swinging the crutch at him. It could be implied that the parties agreed to a fight. That should have prompted the family court to instruct the jury on mutual affray, even though it was never raised.

Judge Wilson's Concurrence. Judge Wilson wrote separately. He expressly pointed out that his concurrence was not in any way a limitation of the majority he formed with Justices Acoba and Duffy. He wrote separately to reiterate the holding of the majority. Judge Wilson believed that in refusing to instruct the jury on the parental discipline defense, the family court deprived Kikuta of his right to a fair trial by jury. He noted that the prosecutor in this case was able to portray Kikuta as a father figure who could not have punched his son in self defense. During the closing argument, the prosecutor told the jurors that they should reject Kikuta's self-defense argument because what he was really doing was disciplining Justin. "Legally barred from taking the very position argued by the prosecutor, [Kikuta's] chosen defense was gutted."

Justice Nakayama's Dissent. Justice Nakayama believed that the was no evidence supporting a parental discipline instruction. An "angry moment driving moderate or reasonable discipline is often part and parcel of the real world of parenting with which prosecutors and courts should not interfere." State v. Matavale, 115 Hawai'i 149, 166, 166 P.3d 322, 339 (2007). The force used by a parent must "reasonably be proportional to the misconduct being punished[.]" Id. at 164, 166 P.3d at 337. Moreover, "the viciousness of the attack" can sever "any relationship between the use of force and the welfare of [a minor] which might be considered 'reasonable.'" State v. Roman, 119 Hawai'i 468, 481, 482, 199 P.3d 57, 70, 71 (2008). Justice Nakayama wrote that Justin misbehaved by not putting the dog food away, slamming a glass door, ignoring Kikuta, and swinging a crutch at him. The use of force employed by Kikuta in response to this misbehavior was unreasonable. Moreover, Justice Nakayama wrote that the failure to give the instruction was harmless because there was no reasonable possibility that Kikuta's conduct arose to parental discipline.

Justice Nakayama also believed that the family court was not required to give a mutual affray instruction sua sponte. The trial court did not have a duty instruct the jury on a defense that was not supported by the evidence, not raised by Kikuta, and "clearly peripheral to Kikuta's defense at trial." Justice Nakayama agreed with the majority's definition of "mutual consent" but held that there was no evidence supporting that standard. She pointed out that the mere fact that a fight occurred does not prove an agreement to fight. See State v. Schroder, 359 N.W.2d 799, 804-05 (Neb. 1984). Secondly, Justice Nakayama disagreed with the majority that the trial court had to sua sponte provide the mutual consent instruction. She wrote that the majority's holding would mean that in any case involving a fight, the trial court would have to summarily provide a mutual consent instruction. This rule, according to Justice Nakayama, "is much too broad and far-reaching." Chief Justice Recktenwald joined.

Facts not Found in PSI Report must be Disclosed Prior to Sentencing

2011-06-01T10:08:00.001-10:00

State v. Durham (HSC May 27, 2011)

Background. Cornelius Wesley Durham was indicted for two counts of sex assault in the third degree. HRS § 707-723(1)(b). He was sentenced to five years probation. One of the terms of probation required him to "participate satisfactorily in the Hawai'i Sex Offender Treatment Program . . . as approved by [his] probation officer, at [his] own expense until clinically discharged with the concurrence of [his] probation officer." Durham underwent treatment from Catholic Charities on Oahu. He was informed that he was not in compliance with the terms of treatment at Catholic Charities. Durham's friend and attorney, Leslie Iczkovitz, wrote a letter to the probation office seeking clarification on Durham's terms and conditions of probation. Catholic Charities involuntarily terminated Durham based in part on a threat of legal action inferred from Iczkovitz's letter. Six days after termination, Durham sought private treatment from a psychologist. He applied for another treatment program and was accepted with the approval of his probation officer.

The State filed a motion to show cause why probation should not be terminated. Attached to the motion was an affidavit from Durham's Maui probation officer, Lara Nishikawa. Nishikawa cited Durham's termination from Catholic Charities. Prior to the hearing on the revocation motion, Nishikawa submitted to the court a confidential report. The report recited much of the facts regarding Catholic Charities. Nishikawa also submitted a letter to the court, which stated that there was a high risk that Durham would re-offend based on a polygraph examination in which Durham stated that he assaulted four other people. In her letter, Nishikawa recommended five more years of probation and one year jail. At the revocation hearing, the judge revoked probation and resentenced him to five years probation and one year of jail. Durham appealed. The ICA affirmed. Shortly thereafter, Iczkowitz--now Durham's counsel--discovered Nishikawa's letter. Durham filed a motion for reconsideration based on the new evidence. The ICA denied the motion.

Confidential Recommendation Letters Remain Confidential, but must Stick to the Facts in the PSI Report. Before imposing a sentence, court personnel shall make a "pre-sentence diagnosis and report[.]" HRS § 706-602. The court shall then provide the parties with copies of the diagnosis and report "and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them." HRS § 706-604(2). Probation officers typically write pre-sentence reports. They also have submitted confidential recommendation letters to the sentencing court. In State v. Paaaina, 67 Haw. 408, 689 P.2d 754 (1984), the HSC held that the defense has no right to examine the confidential recommendation. However, "[i]f the judge finds new factual information in the recommendation letter, it is incumbent on the judge to make it available to the defendant." Id. at 410, 689 P.2d at 757.

In Paaaina, the HSC held that the confidential recommendation letter did not allege new facts or any facts that were not in the PSI report. Thus, there was no error. Here, however, the HSC noted that it was "incumbent" on Nishikawa to draft her recommendation based on the facts in the PSI report. She didn't. Thus, it was "incumbent" on the sentencing court to disclose the facts contained in the recommendation letter. It didn't.

Due Process Requires Disclosure of Facts not Found in the PSI Report for Sentencing AND Probation Revocation. A defendant has the statutory right to controvert or supplement facts that will be used at sentencing. "[T]he legislature was not unmindful of the dangers posed to the defendant in terms of those portions of the report which might be misleading, incomplete, or inaccurate." State v. Lessary, 83 Hawai'i 280, 284-85, 925 P.2d 1104, 1108-09 (App. 1996). Here, however, there was no chance for Durham to controvert or supplement the allegation that he had assaulted four others. The HSC also noted that due process requires the defendant to receive the factual information upon which the revocation is being sought. See State v. Shannon, 118 Hawai'i 15, 32, 185 P.3d 200, 217 (2008). The HSC held that Durham's due process rights had been violated because the factual assertions in Nishikawa's letter were not disclosed to him prior to the revocation hearing.

The Remedy: New Judge. The sentencing court had Nishikawa's letter at the time of the resentencing, but did not disclose the factual assertions in it to Durham. Thus, the HSC vacated the resentencing order and remanded for a new hearing on the motion for revocation. The HSC further held that a judge other than the judges that heard the motion and resentencing. Remanding to the judges that had already passed sentence, according to the HSC, would be an "inadequate remedy." Schutter v. Soong, 76 Hawai'i 187, 208 n. 6, 873 P.2d 66, 87 n. 6 (1994); State v. Chow, 77 Hawai'i 241, 251 n. 13, 883 P.2d 663, 673 n. 13 (App. 1994) (remanded to new judge for sentencing because "the district court judge who originally sentenced [the d]efendant ha[d] already made a sentencing determination.").

Not Quite Overturning Paaaina . . . The HSC did not overturn Paaaina, which authorizes the probation officer to submit to the sentencing court an ex parte communication recommending an appropriate sentence. Instead, when the confidential letter contains factual assertions that are not found in the pre-sentencing materials that were disclosed to the defendant, it is "incumbent" on the sentencing court to make those facts known. So what is a practitioner to do? How is a defense attorney supposed to know what that letter says?

Perhaps it means that at every sentencing hearing, there should be a finding by the sentencing court that all of the facts used by the court in determining a sentence have been disclosed. Does it mean that defense counsel should inquire at a sentencing hearing to ensure compliance with this case and Paaaina? Maybe so. Does it mean that defense should urge the sentencing court to disclose the ex parte letter? Maybe that too.

On the other hand, how is it different from a court's in camera review during discovery? Is it different from a counsel's reliance on the court's determination as to what is relevant and should be disclosed to the parties and what is not and should be left under seal? Maybe it's not different at all. But that issue has yet to come to court.

Non-party's Privileged Documents not Subject to Subpoena or In Camera Review

2011-05-23T13:47:00.002-10:00

Naipo v. Border (HSC May 18, 2011)

Background. Eshell Mitchell sued the Yuen family after Braddah, the Yuen dog, bit her. At the time of the incident, Mitchell was living with Jennifer Naipo. Mitchell claimed that the Naipo was bitten several times by Braddah several months before it bit her. The Yuens denied that their dog had bitten anyone. Naipo was deposed. She didn't have a lawyer. The Yuen's lawyer told her that she could refuse to answer a question that she believed invaded her personal privacy. Naipo answered all the questions. Naipo testified that she was not taken to the hospital for an injury to her forehead but that she went to the Wahiawa Hospital because a different Yuen dog, Misty, had been bitten her several times on the arm. Mitchell deposed Nanea Yuen. Nanea testified that Misty bit Naipo on her forehead, not her arm, and that they had to go to the hospital for that. In light of the conflicting testimony, Mitchell sought a subpoena duces tecum for hospital records from Wahiawa General Hospital.

Naipo, now with a lawyer, moved to quash the subpoena on the grounds that the records were protected from disclosure under Hawai'i Rules of Evidence (HRE) Rule 504, the Hawai'i Constitution, and the federal Health Insurance Portability and Accountability Act (HIPAA). The motion was denied and the court ordered that it would receive the records for an in camera review and that any disclosed records to the parties would be subject to a stipulated qualified protective order. Naipo moved for a stay and petitioned mandamus to the HSC.

Writ of Mandamus Appropriate for Discovery Order Releasing Confidential Files. A writ of mandamus will not issue unless the petitioner shows "a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action." Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999). It is appropriate when a court "issues an order releasing confidential files . . . and the order is not immediately appealable." Brende v. Hara, 113 Hawai'i 424, 429, 153 P.3d 1109, 1114 (2007). A discovery order is not immediately appealable and appropriate for mandamus review . Id.

The Physician-Patient Privilege. "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Hawai'i Const. Art. I, Sec. 6. This right to privacy includes "the right to keep confidential information which is highly personal and intimate." Brende v. Hara, 113 Hawai'i at 430, 153 P.3d at 1116. "Health information is highly personal and intimate information[.]" Id.

There's also an evidentiary privilege:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, medical, or emotional condition, including alcohol or drug addiction, among oneself, the patient's physician, and persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

HRE Rule 504(b). A 504(b) "communication" includes those "made by exhibition or by submission to inspection, as well as by oral or written narration or utterance." State v. Moses, 103 Hawai'i 111, 123, 80 P.3d 1, 13 (App. 2002). The HSC, relying on a case from Illinois, held that information about a patient "deserves the protection of confidentiality that the legislature envisioned." Parkson v. Central DuPage Hospital, 435 N.E.2d 140, 143 (Ill. App. Ct. 1982). "[A]llow[ing] the disclosure of communications involving patients who are not parties to the litigation would neither serve a public interest nor the private interests of those non-party patients." Id.

The HSC held that Jennifer Naipo is not a party to the lawsuit between the Yuens and Mitchell. Her health information in the records from the Wahiawa hospital is protected by the constitutional right to privacy and the privilege under HRE Rule 504(b).

Disclosure Waives the Privilege. A person with a privilege waives it, "if, while the holder of the privilege, the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter." HRE Rule 511. Intentional disclosure of privileged material "eliminates the need for the privilege in that instance." Commentary to HRE Rule 511. Waiver arises when the disclosure is voluntary. Save Sunset Beach Coalition v. City and County of Honolulu, 102 Hawai'i 465, 485, 78 P.3d 1, 21 (2003).

The Cabrinha Rule: Disclosure of Privileged Information is not Voluntary Without Express Advisement of the Existence of the Privilege. The HSC relied upon Territory v. Cabrinha, 24 Haw. 621, (Terr. 1919). In that case, the defendant was subpoenaed to appear before a grand jury, which was investigating whether he committed a crime. When he got there, the attorney general advised him that he could refuse any questions posed to him. Cabrinha answered all of the questions, and based on those answers, the grand jury indicted him. Cabrinha moved to quash the indictment; it was denied, and the Territorial Supreme Court affirmed. According to the HSC, Cabrinha established that "subpoenaed testimony on a privileged matter is voluntary, and the applicable privilege is waived, when the witness is expressly advised of the privilege and testifies without asserting the privilege." Applying the Cabrinha rule, the HSC held that Naipo was not adequately advised of her privilege to refuse to answer questions about the treatment of her physical condition at the hospital. The advise that she didn't have to answer questions that invaded her privacy was simply inadequate. The HSC thus held that her disclosure of the answers did not constitute a waiver pursuant to HRE Rule 511.

Privilege is Absolute: In Camera Review Inappropriate. An evidentiary privilege protects "a personal right of confidentiality that is recognized to be of greater societal importance than the principle of free disclosure of all relevant evidence in a judicial proceeding." HRE Rule 511 Commentary. Having held that the medical records were protected by the physician-patient privilege and having held that Naipo did not waive that privilege, the HSC then held that even though there may be relevant evidence in those records, the right to keep them confidential prevents any disclosure, including an in camera review by the trial court.

The Perplexing Footnote. At first blush, it would seem that that was that. Privileged materials cannot be disclosed, not even to the court for inspection. But, the HSC noted that there was no indication that an in camera record would establish evidence of an exception to the privilege. United States v. Zolin, 491 U.S. 554, 572-75 (1989). Thus, in this particular case, there was no need for any kind of disclosure.

What makes that footnote interesting is that when privilege is raised, there may just be an exception to the privilege in the materials themselves. At the very least, counsel would probably want the court to review the subpoenaed materials for exceptions to the privilege at issue. Better luck next time.

District Court has no Jurisdiction to oust Housing Co-op Members

2011-04-30T11:43:00.002-10:00

Hawaiian Properties, Ltd. v. Tauala (ICA April 28, 2011)

Background. HPL brought in the district court a complaint for summary possession against Tauala on the grounds that she had broken a "rental agreement" with HPL due to unpaid rent. Tauala filed a motion to dismiss on the grounds that she was a member of a housing co-op managed by HPL and had an ownership interest in the unit. Thus, she was not in a landlord-tenant relationship. HPL opposed and argued that she pretty much a tenant. The district court denied the motion and issued HPL a writ of possession. Tauala appealed.

District Court has Jurisdiction is Limited to Landlord-Tenant Disputes. District courts "shall not have cognizance of real actions, nor actions in which the title of real estate comes in question[.]" HRS § 604-5(d). HPL initiated a summary possession proceeding pursuant to HRS chapter 666. Summary possession is "an expedient remedy to restore a landlord to the possession of his [or her] premises when it is clear that the tenant holds nothing more than a possessory interest in the property." Queen Emma Found. v. Tingco, 74 Haw. 294, 304, 845 P.2d 1186, 1190-91. (1992). But when the lessee holds more than a mere possessory interest, the landlord-tenant relationship is more complex and "summary possession is ill-suited to protect the rights and determine the obligations of all parties with an interest[.]" Id.

Co-op Memberships: less than Fee Simple, but more than Mere Possessory Interest. The ICA observed that in this case it would at first seem as if Tauala had nothing more than a possessory interest and that she was indeed a tenant. While HPL "owned" the entire housing project, the co-op agreement reflected that Tauala, as a member of the co-op owned "a 1% stock-like interest" in the co-op. According to the ICA, Tauala's agreement showed that she had more than a possessory interest in the property. But it was unclear what that something was. The agreement is complicated and more than a short-term lease. The ICA agreed with that Tauala that the agreement gave her something more than a possessory interest, and held that the district court did not have jurisdiction to order the writ of possession. The circuit court had jurisdiction.

Resolving the Jurisdictional Split: Hawai'i in the Minority. The ICA, at the end of the opinion, noted a split among jurisdictions that have examined the relationship between co-op members and property managers. According to the ICA, only a minority have held that co-op members have something more than a mere possessory interest. Kadera v. Superior Court, 187 Ariz. 557, 931 P.2d 1067 (Ariz. App. 1997); Plaza Rd. Cooperative, Inc. v. Finn, 201 N.J. Super. 174, 492 A.2d 1072 (N. J. Super. App. Div. 1985); Kohler v. Snow Village, Inc., 16 Ohio App. 3d 350, 475 N. E. 2d 1298 (Ohio App. 1984). The majority of jurisdictions consider it a mere landlord-tenant relationship. Village Green Mut. Homes, Inc. v. Randolph, 361 Md. 179, 760 A.2d 716 (Md. 2000); Susskind v. 1136 Tenants Corp., 43 Misc. 2d 588, 251 N.Y.S.2d 321 (N.Y. City Civ. Ct. 1964); Quality Management Servs., Inc. v. Banker, 291 Ill. App. 3d 942, 685 N. E. 2d 367 (Ill. App. 1997); Brandywine Townhouses, Inc. v. Joint City-County Bd. of Tax Assessors, 231 Ga. 585, 203 S. E. 2d 222 (Ga. 1974). The ICA--apparently based on Queen Emma--adopted the minority view because it was "consistent with Hawai'i jurisprudence."

Non-Hawaiians have no Standing to Challenge Tax Exemptions for Hawaiian Homes Lessees

2011-04-30T08:38:00.004-10:00

Corboy v. Louie (HSC April 27, 2011)

Background. Real property owners and paid their taxes to the State and all the Counties under protest. The taxpayers brought a complaint in the tax court alleging that the tax exemption for Hawaiian Homeland lessees and the Hawaiian Homes Commission Act (HHCA) of 1921 were unlawful. Essentially, the taxpayers argued that the tax exemption violated the Equal Protection Clause. The governments brought a motion for summary judgment. The motion was granted. The taxpayers appealed and the ICA affirmed.

The Taxpayers' Claim: tax Exemptions for Hawaiian Homes Lessees Violate the Equal Protection Clause. The HSC zeroed in on the actual claims brought by the taxpayers: that the exemptions pursuant to the HHCA and the HHCA itself violate the equal protection clause. The HSC noted that a challenge to the HHCA tax exemption is really a challenge to the requirement that only Native Hawaiians are eligible for the homestead leases and thus the exemption. The taxpayers argued that because only Native Hawaiians are eligible to receive the exemption, the exemption violates the federal constitution. According to the HSC, however, the tax exemption applies only to "original lessees" not Native Hawaiians. The HSC construed the taxpayers' challenge as a challenge to the lease eligibility provisions. The issue then became whether the taxpayers had standing to bring that challenge.

Taxpayers have No Standing Because no Injury. Standing focuses on "the party seeking a forum rather than on the issues he [or she] wants adjudicated. And the crucial inquiry in its determination is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his [or her] invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers on his [or her] behalf." County of Kauai ex rel. Nakazawa v. Baptiste, 115 Hawai'i 15, 26, 165 P.3d 916, 927 (2007). A party has a stake in the outcome based on the injury-in-fact test:

(1) has the plaintiff suffered an actual or threatened injury. . .; (2) is the injury fairly traceable to the defendant's actions; and (3) would a favorable decision likely provide relief for plaintiff's injury.

Sierra Club v. Dept. of Transp., 115 Hawai'i 299, 319, 167 P.3d 292, 312 (2007). The injury has to be "distinct and palpable to himself [or herself] as opposed to an alleged injury that is abstract or merely hypothetical." Mottl v. Miyahira, 95 Hawai'i 381, 389, 23 P.3d 716, 724 (2001). The injury also be related to "a recognized interest, as opposed to merely airing a political or intellectual grievance." Id. at 395, 23 P.3d at 730.

The HSC held that the first prong was not met and they lacked standing. None of the taxpayers had a recognizable interest. None of them applied for a homestead lease or showed any interest in applying. Furthermore, there is no indication that their interest would change if the challenged Native Hawaiian qualification was abolished.

Justice Acoba's Concurrence. Justice Acoba believed that the taxpayers had standing to challenge the tax exemptions in the HHCA. Taxpayer standing is different from the injury-in-fact test. It arises when (1) the challenged act is more than "mere irregularity" and "imperil[s] the public interest or work[s] public injury"; (2) the plaintiff must "allege loss in revenues resulting in an increase in plaintiff's tax burdens or to taxpayers in general[,]" and (3) absent a statute governing the suit, "demand upon the proper public officer to take appropriate action" is made "unless facts alleged sufficiently show that demand to bring suit would be useless." Iuli v. Fasi, 62 Haw. 180, 183-84, 613 P.2d 653, 656 (1980). According to Justice Acoba, all three prongs for taxpayer standing were met. First, the tax exemption is "inextricably tied to an ancestral requirement"--Native Hawaiian ancestry--and imperils the public interest or works public injury. Second, the taxpayers clearly showed a pecuniary loss in comparison to the tax burden on the homesteaders. Finally, the taxpayers paid under protest and demand was made to take appropriate action.

But Justice Acoba believed that because the HHCA is "subject to amendment or repeal only with the consent of the United States[,]" the United States must be made a party to the case. See Carroll v. Nakatani, 342 F.3d 934, 944 (9th Cir. 2003). The failure to name the United States warranted dismissal.

Order of Involuntary Dismissal with Prejudice a tall Order

2011-04-29T10:53:00.003-10:00

Blaisdell v. State (HSC April 26, 2011)

Background. Richard Blaisdell was a prisoner in Saguaro Correctional Center in Eloy, Arizona. Prison officials took audio cassette tapes from his cell. Blaisdell filed a pleading titled "Motion For Court to Order Saguaro Prison Officials to Give Blaisdell His Legal Material Forthwith" in the circuit court. The pleading requested the return of his tapes. No one was served with the pleading. The circuit court interpreted the pleading as a civil complaint and denied the request without prejudice on the grounds that it failed to comply with HRCP Rule 65(b), which pertains to injunctive relief. Blaisdell then filed an "Emergency Motion for a T.R.O. and/or Preliminary Injunction" again seeking the return of the tapes in order to prevent officials from destroying the tapes. Blaisdell argued the tapes were evidence of prosecutorial misconduct in the case that lead to his incarceration. The motion was denied.

Blaisdell immediately appealed. The ICA dismissed his appeal because no final judgment had been issued. Blaisdell on two occasions moved the circuit court to issue a final judgment, but the circuit court did not respond. After Blaisdell filed a writ of mandamus to the HSC and after the HSC ordered the circuit court to issue a final judgment, the circuit court issued a final judgment in favor of the prison officials and dismissing all with prejudice. The circuit court never explained why it dismissed with prejudice. Blaisdell appealed again and the ICA affirmed.

Incomplete Service and no Summons Indeed Authorizes Dismissal . . . A complaint and summons must be served together. HRCP Rule 4(d). The summons must contain the name of the parties, be directed at the defendant, "state the time within which these rules require the defendant to appear and defend[,]" and notify the defendant that failure to appear will result in a default judgment. HRCP Rule 4(b).

The HSC concluded that Blaisdell did not comply with the summons requirements in HRCP Rule 4 and that service was incomplete. This noncompliance authorized the circuit court to deny Blaisdell's pleading. However, the "dismissal may be set aside and the action or claim reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal." HRCP Rule 41(b)(2).

. . . But with Prejudice? The HSC pointed out that an involuntary dismissal of a complaint with prejudice are disfavored and the threshold for doing so is set high. Dismissal with prejudice "cannot be affirmed absent deliberate delay, contumacious conduct, or actual prejudice[.]" Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79 Hawai'i 103, 107, 899 P.2d 386, 390 (1995). Without evidence of any one of these three elements, the dismissal is an abuse of discretion. Id. Dismissal with prejudice should be one of last resort and should not be the sanction where lesser sanctions could serve the interest of justice.

No Undue Delay and Actual Prejudice to Defendants. According to the HSC, none of the elements were present here. The HSC held that there was no undue delay or any actual prejudice. In fact, the pleadings suggest that Blaisdell was acting with urgency rather than undue delay. Any delay in this case, according to the HSC, cannot be attributed to Blaisdell. The circuit court did not enter judgment against him until the HSC ordered it do so. Furthermore, even if there was evidence of undue delay, the HSC noted that "a dismissal could not be upheld without a showing of actual prejudice to the defendant." Here there were none. None of the defendants were served let alone named. According to the HSC, no defendants were burdened with prejudice.

No Contumacious Conduct Either. "Contumacious conduct" is "[w]illfully stubborn and disobedient conduct." Shasteen, 79 Hawai'i at 107 n. 7, 899 P.2d at 391 n. 7. Blaisdell did not disobey any orders of the court. He wasn't given any. His conduct, according to the HSC, cannot be considered contumacious.

And Finally, a Policy Statement. The HSC, in summing up the case, noted that the circuit court dismissed Blaisdell's pleading with prejudice but without an explanation. The HSC scolded the circuit court because it "should have considered and explained why a lesser sanction, such as a dismissal without prejudice[] was insufficient to serve the interests of justice." The HSC also turned to its "policy of affording litigants the opportunity to have their cases heard on the merits, where possible[.]" Housing Fin. & Dev. Corp. v. Ferguson, 91 Hawai'i 81, 85-86, 979 P.2d 1107, 1111-12 (1999).

When Disjunctions Become Conjunctions. The standard here quoted in Shasteen identifies three distinct "circumstances" warranting dismissal with prejudice: (1) undue delay, (2) contumacious conduct, and (3) actual prejudice. But here, the HSC glommed undue delay with actual prejudice and dealt with contumacious conduct separately. Now it seems that there are only two "circumstances" (1) undue delay and actual prejudice; and (2) contumacious conduct. Now it seems that undue delay is not enough for dismissal with prejudice. Prejudice must be shown in addition to the delay. This glomming makes sense in light of the policy to keep cases open.

Prosecutor's Improper Hypothetical at Closing Proves Fatal

2011-04-22T16:13:00.002-10:00

State v. Tuua (HSC April 20, 2011)

Background. David Brown, a bouncer at a bar on Maui, was hit with a beer bottle in the middle of a fight at the bar. Lopeti Tuua was charged with assault in the second degree (HRS § 707-711(1)(d)). At his trial, fellow bouncer, Jason Inglish, and bartender, Renie Hamayelian, testified that they were working that night. Brown and Inglish testified that Tuua threw the bottle. Hamayelian testified that he and another customer had collected all of the bottles, except for one--the one in Tuua's hand before it broke. He also testified that he saw the broken bottle near Brown after it had been thrown. He never saw Tuua throw it. The parties also stipulated that Officer Polanco would have testified that when he arrived at the scene, he took Brown's statement. In that statement, Brown said that another man, Ikaika Kawai, threw the bottle that hit him. Tuua and his half-brother, Brandon Carter, testified for the defense. Both testified that it was Carter who threw the bottle.

During his closing argument, the prosecutor argued, over the defense's objection, that Carter was not a credible witness:

[I]f you found the defendant not guilty, a person might think, well, you can go after Brandon Carter because he admitted to it.

Think about it. What would the defense attorney of Brandon Carter do? He'd call every one of the State witnesses. He'd call Dave Brown. He'd call Renie [Hamayelian] and he'd call Jason Inglish. Who threw the bottle? Each of them would say it's [Tuua]. Each one of them.

Brandon Carter could get up on the stand and all he'd have to say is, I lied. And then what would happen? [Tuua] would have been found not guilty. Defendant would have been found not guilty. Could have just said, I lied under oath. So what?

The most that you can get him for would be charging him for lying under oath. That would be it and that's the strategy, and that's why you can't really give any credibility to Brandon Carter coming in here today and saying, hey, it was me.

The jury found Tuua guilty as charged. Tuua appealed; the ICA affirmed.

Prosecutorial Misconduct. Prosecutors at closing may "draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence." State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996). They "are bound to refrain from expressing their personal views as to a defendant's guilt or the credibility of witnesses." State v. Cordeiro, 99 Hawai'i 390, 424-25, 56 P.3d 692, 726-27 (2002).

Here, the HSC held that the prosecutor did not draw from reasonable inferences from the evidence, but rather went beyond the record and discussed the consequences of the jury's verdict. According to the HSC, the prosecutor's hypothetical future trial of Carter was based on an acquittal in Tuua's case. A prosecutor cannot "improperly direct the jury from its duty to decide the case on the evidence . . . by making predictions of the consequences of the jury's verdict." State v. Sanchez, 82 Hawai'i 517, 533, 923 P.2d 934, 950 (App. 1996). According to the HSC, the prosecutor in Tuua's trial did just that.

Three Factors Determine Whether an Improper Statement is Harmless Beyond a Reasonable Doubt. Once misconduct is found, the court must determine whether the error was harmless beyond a reasonable doubt, "which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999). The harmlessness of the misconduct is based on three factors: "(1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant." Id.

All Factors Point Away from Harmlessness. The HSC held that the first factor weighs against the prosecution. The mere fact that the prosecutor's comment directed jurors away from examining the evidence and thinking about the consequences of their verdict was enough to weigh against the prosecution. As for the second factor, there was no curative instruction given. According to the HSC, the fact that the circuit court twice instructed the jurors prior to the improper comment that the arguments were not evidence did not mean that a curative instruction was given. State v. Rogan, 91 Hawai'i at 415, 984 P.2d at 1241. Finally, the HSC noted that "[i]n close cases involving the credibility of witnesses, particularly where there are no disinterested witnesses or other corroborating evidence, this court has been reluctant to hold improper statements harmless." This case, according to the HSC, turned on the credibility of witnesses and each of them had their own biases and interests. It weighs against harmlessness.

Unauthorized Possession Requires just, well, Possession

2011-04-21T12:15:00.005-10:00

State v. Rodrigues (ICA April 20, 2011)

Background. A man left his "waist pouch" in a company van, but did not realize it until the next day. He notified his bank. Two days later, Rodrigues went into a payday loan office to cash one of the man's checks written to her. The manager became suspicious, called a telephone number on the check, and learned that the check was stolen. The police investigated. The man denied writing a check for Rodrigues and that he did not know her. He also denied that that was his signature on the check. Rodrigues was charged with one count of unauthorized possession of confidential personal information and identity theft in the third degree. Rodrigues filed a motion to dismiss on the grounds that the counts merge. The circuit court disagreed with Rodrigues that the offenses merged, but granted her motion to dismiss on the grounds that there was insufficient evidence to support the charges. The State appealed.

Unauthorized Possession of Confidential Personal Information. Unauthorized possession of personal confidential personal information arises when a person "intentionally or knowingly possesses without authorization, any confidential personal information of another[.]" HRS § 708-839.55. "Confidential personal information" is defined as "information in which an individual has a significant privacy interest, including but not limited to a driver's license number, a social security number, . . . a bank account number, a password or other information that is used for accessing information, or any other name, number, or code that is used . . . to confirm the identity of a person." HRS § 708-800. The circuit court concluded that implicit in this statutory definition lies an additional element of impersonation and that the government must allege and prove that the Rodrigues impersonated the person whose identity is confirmed in the information. The ICA rejected this interpretation.

Statute Merely Requires Possession, not Actual Use. "[W]here the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." HGEA v. Lingle, 124 Hawai'i 197, 202, 239 P.3d 1, 6 (2010). The ICA held that the plain and unambiguous language of the statute merely requires intentional or knowing possession of "confidential personal information." The statute does expressly not require the personal information be actually used to impersonate another.

Legislature Intended Possession as the Criminal Conduct, not the use. Departing "from a literal construction of a statute is justified when such construction would produce an absurd result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act." Estate of Roxas v. Marcos, 121 Hawai'i 59, 67, 214 P.3d 598, 606 (2009). Here, the ICA held that it could not depart from the literal construction of the statute based on a review of conference committee reports from the legislature when it adopted the statute as well as the commentary to HRS § 708-839.55. According to the ICA, the statute was intended to allow the prosecution of unauthorized possession before actual use of the information. The circuit court's construction, thus, is inconsistent with the purpose and policy of the statute.

Identity Theft Merely Requires use, not Impersonation. Identity theft in the 3d degree arises when a person "makes or causes to be made . . . a transmission of any personal information of another . . . with the intent to commit the offense of theft in the third degree[.]" HRS § 708-839.8. It is undisputed that the check constituted "personal information" as defined by HRS § 708-800. The ICA rejected the circuit court's construction that impersonation is necessary. The plain language, according to the ICA, called only for the transmission of the information with the requisite intent. Again, the ICA pointed out that the legislative history does not support a departure from the plain language of the statute.

How to Interpret Statutes . . . The canons of statutory construction are well-established in Hawai'i. When a statute is plain and unambiguous, the court must give effect to the plain and obvious meaning. HGEA v. Lingle, 124 Hawai'i at 202, 239 P.3d at 6. The HSC has strictly adhered to this rule.

On the other hand, if a statute is not plain and unambiguous, "the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HGEA v. Lingle, supra. "If statutory language is ambiguous or doubt exists as to its meaning, courts may take legislative history into consideration in construing a statute." Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 123 Hawai'i 476, 482, 236 P.3d 456, 462 (2010).

Absurdities AND Inconsistencies? An equally well-established canon of construction is the absurd result rule. A "departure from a literal construction is justified when such construction would produce an absurd result and the literal construction . . . is clearly inconsistent with the purposes and policies of the act." Estate of Roxas v. Marcos, supra. The ICA's application of this rule is curious. First, it never examined whether the literal interpretations of the statutes produced absurd results. That's too bad. Although the rule of avoiding absurdities is well-established, there really isn't a lot of law explaining what an absurdity is.

But what's more troubling is that the ICA relies on extrinsic aids even though it acknowledged that the language is plain and unambiguous. This approach suggests that unambiguously written and plainly understood statute must nonetheless be consistent with its legislative purpose. The HSC has required strict adherence to the plain-language rule. "Even when the court is convinced . . . that the legislature really meant and intended something not expressed by the phraseology of the act, it has no authority to depart from the plain meaning of the language used." State v. Klie, 116 Hawai'i 519, 526, 174 P.3d 358, 365 (2007). In Carlisle v. One (1) Boat, 119 Hawai'i 245, 195 P.3d 1177 (2008), the HSC noted that the ICA should not have turned to legislative history in aid of its interpretation when the statute was plain and unambiguous. What if a statute was in fact plain, unambiguous, but inconsistent with the legislative purpose? Isn't that the situation contemplated by the HSC in Klie and Carlisle?