Using a lack of Evidence to show it did not Happen

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.


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