HSC doesn’t wait for Rule 40 to find defense counsel ineffective for failing to file a motion to suppress

 State v. Yuen (HSC August 20, 2024)

Background. Charles Tung Ming Yuen was charged with driving under the influence of an intoxicant. The charge arose from a motor vehicle collision that occurred approximately fifty feet from the O’Malley Gate just outside of the Joint Base Pearl Harbor-Hickam in Honolulu. Two vehicles were approaching the gate when one of the vehicle rear-ended the one in front of it. Military police came onto the scene and identified Yuen as the driver of the vehicle that cause the collision. They seized him and subjected him to standardized field sobriety tests. Then they held him and called the Honolulu Police Department to report a “possible DUI outside the gate.”

 

The collision, seizure of Yuen, and their investigation occurred outside of the base within the City and County of Honolulu. The police showed up and took over. They conducted their investigation, saw signs of intoxication, and arrested Yuen.

 

Yuen’s lawyer, Barry Sooalo, did not file a motion to suppress evidence. But before trial, he raised concerns the admissibility of evidence based on the Posse Comitatus Act, 18 USC § 1385, a federal statute barring military personnel from conducting civilian law enforcement. Sooalo anticipated that the prosecution would call the MPs and asked the district court to determine their admissibility. The prosecution countered that the only evidence from the MPs would be their identification of Yuen as the driver. With that understanding, the district court—with the Hon. Judge John A. Montalbano presiding—started trial.

 

The prosecution called the police officers. One of the officers testified that the MPs reported a collision and that Yuen was the one who had caused the collision. The district court—without objection—struck that portion of the testimony. The other responding officer similarly testified. This time when the officer testified that the MPs reported a DUI at the gate, Sooalo objected and it was sustained. This officer observed Yuen, suspected he was intoxicated, and had him to the standardized field sobriety tests. The district court convicted and sentenced Yuen. Yuen appealed.

 

New counsel represented Yuen on appeal and argued that trial counsel was ineffective for failing to file a motion to suppress. Appellate counsel, Alen Kaneshiro, did not serve Sooalo with a copy of the brief and there was no opportunity for him to respond. The ICA affirmed. It noted that while Yuen’s claim of ineffective assistance of counsel was not patently frivolous, but because Sooalo was not given a chance to respond, it would not rule on the ineffective assistance of counsel claim and suggested Yuen file a petition attacking the judgment pursuant to HRPP Rule 40. Yuen petitioned for a writ of certiorari to the HSC.

 

The failure to file a motion to suppress is ineffective assistance of counsel. Ineffective assistance of counsel arises under the Hawai'i Constitution when (1) there were “specific errors or omissions reflecting counsel’s lac of skill, judgment, or diligence” and (2) the errors or omissions “resulted I either the withdrawal or substantial impairment of a potentially meritorious defense.” State v. Wakisaka, 102 Hawai'i 504, 513-14, 78 P.3d 317, 326-27 (2003). Actual prejudice is not required under the second prong—only “possible impairment” of the potentially meritorious defense. Id. Yuen argued that Sooalo’s failure to file a motion to suppress arose to ineffective assistance of counsel.

 

The Hawai'i Constitution and the Posse Comitatus Act. “[T]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures an invasions of privacy” is protected under Article I, Section 7 of the Hawai'i Constitution. A vehicular stop is a “seizure” triggering these protections. State v. Heapy, 113 Hawai'i 283, 290, 151 P.3d 764, 771 (2007).

 

Moreover, when evidence at trial is obtained a result of a previous illegal act of the police, it must be suppressed under the fruit-of-the-poisonous-tree doctrine. State v. Trinque, 140 Hawai'i 269, 281, 400 P.3d 470, 482 (2017). The prosecution must show the evidence is untainted by the government’s unlawful act. Id. at 282, 400 P.3d at 483. The burden is met either by showing the police did not exploit the illegal activity or by showing no causal link between the illegal activity and the evidence. Id. at 281, 400 P.3d at 482.

 

Yuen’s suppression claim is tied to the Posse Comitatus Act:

 

Use of Army, Nave, Marine Corps, Air Force, and Space Force as posse comitatus. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

 

18 USC § 1385. A “posse comitatus” is a group “called together to help the sheriff keep the peace or conduct rescue operations.” Black’s Law Dictionary, (11th ed. 2019).

 

Under the Hawai'i Constitution, evidence gathered in violation of the PCA is “suppressed under the authority of this court’s supervisory powers in the administration of criminal justice in the courts of our state.” State v. Pattioay, 78 Hawai'i 455, 469, 896 P.2d 911, 925 (1995). The PCA does not apply for investigations of military personnel that occur on base. See Brune v. Administrative Director of Courts, 110 Hawai'i 172, 179, 130 P.3d 1037, 1044 (2006). According to the HSC, “while the PCA allows military personnel to investigate violations of civil law occurring on military bases, where the target of a military investigation is a civilian and there is no verified connection to military personnel or military operations or purposes, the PCA prohibits and restricts military participation in activities designed to execute civilian laws.”

 

Here, the HSC noted that the record shows no general request from the MPs to the civilian police to investigate a possible violation of state traffic law violations. The MPs approached and investigated the scene to find out what happened, check for injuries, and secure the base. But initiating the field sobriety maneuvers was “a step too far” and intruded onto civilian matters under the PCA. The MPs should have called the local police and let them handle it. Yuen posed no danger, he did not try to escape, and did not try to get onto the base.

 

And so counsel was ineffective in not filing the motion before trial. ineffective assistance only requires “possible impairment of a potentially meritorious defense.” This record showed that.

 

The ICA should have ordered service of the brief on trial counsel instead of deferring on the claim and waiting for a Rule 40 petition. The ICA noted Yuen had a colorable claim but did not rule on it. The ICA reasoned that a better factual record could be made through a Rule 40 petition and appellate counsel did not serve Sooalo. The HSC took issue with this reasoning.

 

The record, according to the HSC, was sufficient to support the ineffective assistance of counsel claim. Moreover, once the HSC took certiorari and ordered Yuen’s appellate counsel to serve Sooalo pursuant to HRAP Rule 28(a). Sooalo was served and no response was filed.

 

The new rule for appellate courts and ineffective-assistance-of-counsel claims on direct appeal. The HSC noted that dodging an ineffective claim based on failing to serve trial counsel can prejudice the defendant. Rule 40 petitions “shall not be construed to limit the availability of remedies . . . on direct appeal.” HRPP Rule 40(a). The HSC also recognized the reality of Rule 40 procedures:

 

It takes significant time after affirmance of a conviction on final appeal for a HRPP Rule 40 petition to be filed and resolved. In addition, allowing a Rule 40 petition instead of addressing an issue on direct appeal can also be detrimental to a defendant because defendants are not automatically entitled to counsel when they bring Rule 40 petitions. Only if a court finds a “colorable claim” will counsel be appointed. In contrast our case law recognizes a criminal defendant’s right to counsel on appeal and on certiorari.

 

Based on that and the HSC’s supervisory powers under HRS § 602-4, the HSC held that “if new appellate counsel on direct appeal fails to serve an ineffective assistance claim on trial counsel, the appellate court must order counsel to do so and provide counsel to do so and provide trial counsel with a reasonable opportunity to respond. The appellate court is to address the ineffective assistance claim based on the record after that opportunity has been provided instead of denying an ineffective assistance claim without prejudice to a HRPP Rule 4o petition.”

 

There still was sufficient evidence to warrant a new trial. And while the judgment would not stand, the HSC determined if there was sufficient evidence. See State v. Davis, 133 Hawai'i 102, 118, 324 P.3d 812, 928 (2014). Simply put, it did and vacated and remanded for a new trial.

 

Chief Justice Recktenwald’s Dissent. The CJ dissented because he disagreed that it was an “obvious” error to not file a motion to suppress. Without a clear violation of the PCA warranting a motion to suppress, the majority should not have found Sooalo ineffective. The CJ also believed that the MPs did not violate the PCA because they had an “independent military purpose for their actions: protecting service members and guests on the base from a potential threat to their safety.” The CJ also would have held that the ICA did not err in affirming “without prejudice.” Justice Ginoza joined.