Conferences with Standby Counsel, Written Transcripts, and Other Rights

State v. Mundon (HSC November 13, 2009)

Background. Mundon was charged with several counts of sex assault in various degrees, kidnapping, terroristic threatening, and assault. Mundon requested to represent himself at trial and requested appointed standby counsel. The circuit court granted those requests. At trial, the complainant that she encountered Mundon one night at Kapa'a Beach. She testified that she was looking for a cheap hotel room. Mundon allowed her to sleep in the back of his truck. As she slept, Mundon began to putting his hands under her underwear and feeling her outer labia. She also testified that he started to kiss and touch her breasts approximately ten to fifteen times. When she tried to get away, Mundon produced a knife and threatened to kill her if she tried to get away. A struggle ensued on the beach and eventually she got away. Testimony from police officers corroborated the complainant's version. Mundon testified and his version of events is significantly different.

The jury found Mundon guilty of one count of attempted sex assault in the first; one count of terroristic threatening in the first; one count of kidnapping; one count of assault in the third degree; and the lesser-included offense of attempted assault in the second degree. Mundon was acquitted of all remaining charges. The circuit court sentenced Mundon for the offenses, some of which were consecutive.

Unanimity Instructions and when you Need them . "[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, [sections] 5 and 14 of the Hawai'i Constitution." State v. Arceo, 84 Hawai'i 1, 30, 928 P.2d 843, 872 (1996). When separate and distinct culpable acts are within a single count of sexual assault, "the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (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. The requirement of unanimity instructions applies to other offenses too. State v. Valentine, 93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000).

Absent an election by the prosecution a unanimity instruction is required when "(1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that only one offense was committed." State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008). But the unanimity instruction is not required when the offense does not preclude it from being proved as a continuous offense and the prosecution alleges, adduces evidence of, and argues that the defendant's action "constituted a continuous course of conduct." State v. Apao, 95 Hawai'i 440, 447, 24 P.3d 32, 39 (2001).

. . . Not Required for Kidnapping. The HSC first rejected Mundon's argument that a unanimity instruction was required for the kidnapping offense. Kidnapping arises when "the person intentionally or knowingly restrains another person with the intent to . . . [i]nflict bodily injury upon that person or subject that person to a sexual offense[.]" HRS § 707-720(1)(d). According to the HSC, nothing in the kidnapping statute prevents the prosecution from proving that the restraint was "accomplished by a series of acts constituting a continuing course of conduct" and that the prosecution alleged, adduced evidence of, and argued that the defendant's actions were a continuous course of conduct.

. . . But Required for the Attempted Sex Assault in the First. As for the attempted sexual assault in the first degree, the HSC held that the unanimity instruction should have been given. Unlike the kidnapping offense, sexual assault in the first degree cannot be proven with continuous conduct. State v. Arceo, 84 Hawai'i at 21-22, 928 P.2d at 863-64. So even if the prosecution argued that it was a continuing course of conduct, the multiple attempts to penetrate the complainant cannot be a continuing course of conduct, but are separate and distinct acts. It was, according to the HSC, plain error for the trial court to not instruct the jury that they must unanimous in determining the particular conduct for the attempted sexual assault.

. . . And also Required for the Terroristic Threatening. The State argued to the jury that there were "two huge instances" where Mundon threatened the complainant. Mundon was charged with two counts of terroristic threatening in the first degree, but the jury found him guilty of only one. The HSC relied on a line of federal cases. "When it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice" and "the jurors must agree to a particular set of facts." United States v. Echeverry, 719 F.2d 974, 974-75 (9th Cir. 1983). The HSC pointed out that Mundon was charged and tried for two counts of terroristic threatening, but the jury only found him guilty of one count. According to the HSC, there was a genuine possibility that the different jurors agreed to a different set of facts.

A Particular kind of Remedy for the TT1. Double jeopardy protects people from a second prosecution for the same offense after acquittal and a second prosecution for the same offense after a conviction. State v. Higa, 79 Hawai'i 1, 5, 897 P.2d 928, 932 (1995). The HSC concluded that because there was no way to know which specific act served as the basis for the single TT1 conviction, it is possible that a vacation and remand of this offense would be a retrial for an offense of which Mundon had been acquitted. As a result, the HSC reversed the terroristic threatening in the first degree conviction.

Defendant Needn't show Particularized Reason in Exercising the Right to Transcripts of Prior Proceedings for Trial and Appeal. One of Mundon's pretrial motions was a request for written transcripts of prior proceedings. The circuit court denied the request. The ICA concluded that the transcripts should have been provided, but that error was harmless beyond a reasonable doubt.

A criminal defendant has a right to transcripts of prior proceedings. Britt v. North Carolina, 404 U.S. 226, 227 (1971). In Britt, the Supreme Court of the United States examined whether an indigent defendant was entitled to written transcripts even though there was no showing of a specific need for them. Id. Two factors are relevant in resolving this issue: (1) the value of the transcript to the defendant in connection with the appeal or trial" and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

The HSC pointed out that the Britt court held that there is never a need for the defendant to show a specific need for transcripts. They have an "innate value." Id. at 228. The HSC then examined "the availability of alternative devices that would fulfill the same functions as a transcript." Here, Mundon was provided with electronic versions of the transcript, but it was clear from the record that he did not have the means to access those electronic versions until the first day of trial. That meant that Mundon could only review the transcripts during breaks in the trial itself. This, according to the HSC, was not an adequate alternative device. It was not harmless error.

No Access to Trial Materials . . . The State filed various pretrial motions in limine. Four days prior to trial at the hearing on these motions, Mundon informed the circuit court that it could not adequately respond to the motions because his trial materials were left behind on Oahu (the trial was held in Kauai). On appeal, Mundon argued that due process required him access to his trial materials.

Due process "is flexible and calls for such procedural protections as the particular situation demands. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner." State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002).

The HSC noted that in California, the pro se criminal defendant has a constitutional right to adequate time to prepare his or her defense. People v. Maddox, 433 P.2d 163, 168 (Cal. 1967). Moreover, the denial of "a proper request for a continuance to prepare a defense" is a denial of due process. People v. Cruz, 83 Cal. App. 3d 308, 325 (Cal. App. 1978). In this case, Mundon was unexpectedly transported from Halawa on Oahu to the jail on Kauai without his trial materials. The transfer was completely out of his control. The trial court could have continued the trial in order for Mundon to consult his materials. The HSC held that the denial of access to his trial materials constituted a violation of his due process rights.

Getting Around the Abuse-of-Discretion Standard? In a footnote, the HSC pointed out that the ICA erred in applying the standard of review. The ICA applied the abuse-of-discretion standard of review and concluded that there was no such abuse. The abuse of discretion standard defers to the lower court or tribunal. The HSC, however, noted that Mundon asserted a violation of his constitutional rights--which is reviewed de novo. Normally, the denial of a continuance is reviewed for an abuse of a discretion. However, since the denial of a continuance--as argued by Mundon--was characterized as a violation of his due process rights, the HSC reviewed the issue de novo and did not defer to the lower court.

A Right to Standby Counsel. Mundon was cross-examined by the State. During a routine break in the trial, Mundon wanted to speak to his standby counsel. Under the federal constitution, a court's order prohibiting a criminal defendant from conferring with his or her standby counsel during an overnight break violates the Sixth Amendment. Geders v. United States, 425 U.S. 80, 91 (1976). However, in Perry v. Leeke, 488 U.S. 272 (1989), the defendant argued that the trial court's order barring him from conferring with standby counsel during a 15-minute break violated the Sixth Amendment. The SCOTUS distinguished Geders and held that the federal constitution "does not compel every trial judge to allow the defendant to consult with his [or her] lawyer while his [or her] testimony is in progress merely because the judge decides to call a recess during the trial for a few minutes." Perry, 488 U.S. at 284-85. The Perry court emphasized the need for preserving the truth-seeking function at trial and explained that the defendant does not have a right to "regroup and regain a poise and sense of strategy" not available to other witnesses. Id. at 282-83.

Justice Thurgood Marshall dissented in Perry. He was joined by Justices Brennan and Blackmun. The dissent saw no distinction and noted that conferring with counsel "enhances the discovery of truth because it better enables the defendant to put the [prosecution] to its proof." Id. at 291 (emphasis in original). Justice Marshall wrote that "the Sixth Amendment forbids any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial." Id. at 285-86 (emphasis in original).

The HSC held that under the federal constitution, Mundon is in the same situation as Perry and, thus, the Sixth Amendment was not violated by the circuit court's order prohibiting him from conferring with standby counsel.

The Hawai'i Constitution, However, is a Different Matter. The Hawai'i Supreme Court is the "ultimate judicial tribunal with the final, unreviewable authority to interpret and enforce the Hawai'i Constitution" and is "free to give broader protection under the Hawai'i Constitution than that given by the federal constitution." State v. Arceo, 84 Hawai'i at 28, 928 P.2d at 870. HSC adopted Justice Marshall's formulation that "any order barring communication between a defendant and his [or her] attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial," violates the defendant's state constitutional right to counsel. Thus, the HSC held that the circuit court's order prohibiting conference with counsel during the routine break violated the Hawai'i Constitution. Nonetheless, the HSC held that the error was harmless beyond a reasonable doubt because there was no reasonable possibility that the error contributed to the conviction. State v. Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1230 (1996).

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the result, but disagreed on the majority's analysis on the circuit court's order prohibiting conference with standby counsel. In sum, Justice Acoba believed that the circuit court's order violated Mundon's right to counsel, the attorney-client privilege, and Mundon's right against self-incrimination. Justice Duffy joined.

Other Issues. The HSC held that Mundon's right to speedy trial was not violated when more time was permitted to accommodate the withdrawal of one standby counsel and the appointment of another. The HSC also rejected Mundon's contention that the consecutive sentencing violated his right to a jury trial ala Apprendi v. New Jersey, 530 U.S. 466 (2000).


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