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.

The Sentence is Illegal Because Auld Applied to Means’s Case. The HSC held that the circuit court erred in sentencing Means under the repeat offender statute. A “jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger” the repeat offender statute. State v. Auld, 136 Hawai'i 244, 257, 361 P.3d 471, 484 (2015). The Auld case was expressly given “prospective effect only.” Id. Auld was published on November 24, 2015—while the jury was empaneled in Means’s case. Means was convicted the next day. Simply put, the HSC held that “[b]ecause Means had been charged, but not yet convicted or sentenced at the time Auld was published, Means was entitled to the protections of Auld.” The prosecution could not rely on the pre-Auld means of imposing the repeat offender statute. The HSC vacated the sentence and remanded the case for resentencing.

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