Competent Counsel, Hearsay Exceptions, and the Cutoff for New Rules in Cases
State v. Means (HSC June 29, 2020)
Background. Mark Means was prosecuted for shoplifting from
Sears at the Queen Kaahumanu Shopping Center in Kahului, Maui. The prosecution
filed the charging document on September 8, 2015 for an incident that occurred
on September 2, 2015. At trial, the prosecution called Arthur Wake, an “asset
protection manager” at Sears. Wake testified that he saw Means through security
cameras carrying items like a tent and tools throughout the store. He watched
him walk out of the store. Wake stopped him in the parking lot. He identified
himself and asked him to put the items back. Means put them on the ground and
walked away. Wake called the police and reported the incident.
Wake testified he took the
recovered items back into the store and took pictures of the items. His pictures
were admitted as evidence at trial. The pictures do not show any tags or labels
indicating the sales price or value. He did testify that there was “spider wrap”
on one of the items—a theft prevention covering—that is paced on items priced
at $99.99 and above.
Wake testified that
another Sears employee helped produce a receipt to show the prices of the
items. State’s exhibit No. 4 was the receipt that was made exclusively for the
MPD officers listing the prices for the items. He testified that the receipt
was a “true and accurate receipt for those items.” He admitted that he was not
the person who generated the receipt and he did not know that person.
Wake’s counsel objected to
the admission of the receipt for lack of foundation. The receipt, he argued,
was not properly authenticated because Wake did not know the system and the person
who rang up the items. He also argued it was inadmissible hearsay evidence. The
Hon. Judge Joseph E. Cardoza of the circuit court permitted the prosecution to
supplement the foundation by having Wake testify about the process used to
produce the receipt. Counsel still renewed his objection, but was overruled.
The prosecutor asked Wake what
the price was for these items on September 2, 2015. Over objection, Wake was
permitted to tell the jury the sales price for each item. The receipt was
admitted into evidence over objection.
The prosecution also
called Maui Police Department officer Ashley Gandauli. She testified that she
arrested Means. On cross-examination, counsel asked Officer Gandauli if she
noted any address for Means in her report. The prosecution objected based on
relevance.
The prosecution objected
because the answer would reveal that Means is homeless, unemployed and “all of
these other things about his background and character.” Counsel indicated his
questions were limited to what was in Gandauli’s report. The objection was
overruled.
After Officer Gandauli
testified that there was no address noted in her report, counsel asked, “why
was that?” Officer Gandauli testified that Means told her that “he was
homeless; that he did not have a local address.” Counsel told the court that he
“didn’t ask for that, but now it’s out.” The circuit court disagreed and noted
that he did ask for it because he asked the officer why she did not enter an
address. Counsel stated he had no objection because “I am quite happy” with the
answer.
During the closing
argument, counsel made two references to Means’s homelessness. He used it to
argue that Means did not have the requisite state of mind to know the value. “Mark
is a homeless man that is clearly taking a tent for whatever purpose he would—a
homeless person would take a tent. . . . [I]t’s very doubtful that Mark
actually knew the aggregate value of the three items that he selected[.] . . .
That’s in doubt. That’s in reasonable doubt.” Counsel asked the jury to find
Means guilty of theft in the third degree because there was insufficient proof
of the state of mind for value. On November 25, 2015, the jury found Means
guilty as charged.
The day before the jury’s
verdict—on November 24—the HSC published State v. Auld, 136 Hawai'i 244,
361 P.3d 471 (2015). In that case the HSC held that in order to be sentenced
pursuant to HRS § 706-606.5, the repeat offender statute, the prosecution must “include
the defendant’s predicate prior convictions in a charging instrument [and] . .
. must prove these prior convictions to a jury, beyond a reasonable doubt.” Id.
at 246-247, 361 P.3d at 473-474. The holding was given “prospective effect”
meaning that the rule would not apply to Auld and would not apply to “conduct
or events occurring before that decision.” Id. at 255-257, 361 P.3d at
482-484.
Prior to sentencing, the prosecution
filed a motion to impose the repeat offender statute. The prosecution attached
evidence in its motion showing prior convictions in Florida. The prosecution
argued that this case was charged well before Auld was published and it
was not subject to the new case. Means opposed and argued that the jury was
still empaneled on November 23, 2015 and was still empaneled when Auld was
published. There had been ample opportunity to instruct the jury and have it
decide these facts. Means also urged the empanelment of a new jury to determine
the facts alleged in the prosecution’s motion. The circuit court disagreed with
Means and sentenced him to five years prison with a five-year mandatory
minimum. Means appealed. The ICA affirmed.
Counsel was not Ineffective
when he Tried to Argue that Means’s Homelessness Raised Doubts on his State of
Mind with Regard to the Value of the Items. The right to effective assistance of
counsel is guaranteed by the Sixth Amendment to the United States Constitution
and Article I, section 14 of the Hawai'i Constitution. A claim of ineffective
assistance of counsel will succeed only if the defendant can show (1) “specific
errors or omissions reflecting counsel’s lack of skill, judgment, or diligence”
and (2) the error or omission resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense.” State v. Wakisaka, 102
Hawai'i 504, 514, 78 P.3d 467, 327 (2003). Counsel does not have to be perfect,
but must be “within the range of competence demanded of attorneys in criminal
cases.” State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972). “Specific
actions or missions alleged to be error but which had an obvious tactical basis
for benefitting the defendant’s case will not be subject to further scrutiny.” Briones
v. State, 78 Haw. 442, 462-463, 848 P.2d 966, 976 (1993); and State v.
Salavea.
The HSC held that Means’s
counsel was competent. It was part of his strategy to show that Means was
homeless in an effort to “show that Means lacked the intent to commit theft in
the second degree because he did not know that the items he took from Sears
were valued in excess of $300.” Theft in the second degree indeed requires proof
that the defendant intentionally or knowingly committed theft of property
valued in excess of $300—at the time (the statute was later amended raising the
felony threshold to $750). HRS § 708-831(1)(b) and State v. Mitchell, 88
Hawai'i 216, 223, 965 P.2d 149, 156 (1998). This tactic was for Means’s benefit
and did not arise to ineffective assistance of counsel.
The Receipt was Admissible
Because it was a Business Record Exception to the Hearsay Rule. Documentary evidence, like
the printed receipt, must be authenticated or identified “by evidence sufficient
to support a finding that the matter in question is what its proponent claims.”
HRE Rule 901. Put differently, there must be “sufficient proof . . . so that a
reasonable juror could find in favor of authenticity or identification.” State
v. Loa, 83 Hawai'i 335, 350, 926 P.2d 1258, 1273 (1996). Here, Wake
testified that the receipt was what the prosecution claimed it to be—a listing
of the prices of the items Means took. That was sufficient foundation.
Once properly authenticated,
the question turns to hearsay. Hearsay is a “statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” HRE Rule 801. Hearsay is generally inadmissible.
HRE Rule 802. The HSC held that the receipt was hearsay because it was an out-0f-court
statement asserting the prices of the items offered to prove the truth of the matter
asserted—the price of the items.
The receipt, however, met
an exception to the hearsay rule. The business records exception under HRE Rule
803(b)(6):
Records
of a regularly conducted activity. A memorandum, report, record, or data compilation,
in any form, of acts, events, conditions, opinions, or diagnoses, 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, or by certification that complies with rule 902(11)
or a statute permitting certification, unless the sources of information or
other circumstances indicate lack of trustworthiness.
The HSC held that the
prosecution prove this exception. Wake testified the office register was
regularly used for generating receipts for theft incidents like this one. It also
recorded the prices of items on September 2, 2015—the day of the theft. And Wake
was the testimony of a “qualified witness.”
Once authenticated and
admissible the receipt is prima facie evidence of value or ownership of the items
in a shoplifting case. HRS § 708-830(8). That is, it is presumed to be the
value of the items unless rebutted by the defense. HRE Rule 305. The HSC found no
error in admitting the receipt.
Editorial: What about the
Confrontation Clause? Statements that are “testimonial” cannot be used against the accused
unless there was an opportunity to cross-examine. Crawford v. Washington,
541 U.S. 36, 52 (2004). A statement is “testimonial” when it is made “under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. The SCOTUS
extended Crawford’s rule to business records in Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009). There, the Court examined whether
records from a documents from the State’s crime lab were subject to the
Confrontation Clause:
Business
and public records are generally admissible absent confrontation not because
they qualify under an exception to the hearsay rules, but because—having been
created for the administration of an entity’s affairs and not for the purpose
of establishing or proving some fact at trial—they are not testimonial. Whether
or not they qualify as business or official records, the . . . statements here—prepared
specifically for use at petitioner’s trial—were testimony against petition, and
the analysis were subject to confrontation under the Sixth Amendment.
Id. at 324. If reverse
receipts like this one were regularly used to document thefts, isn’t that
testimonial for purposes of the Confrontation Clause? And if that’s the case
and if the person who actually generated the receipt was not there to be
cross-examined, shouldn’t the Confrontation Clause keep it out of evidence? The issue was never raised here.
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