Monday, December 22, 2014

Trial Court Can’t Stop Lawyers from Asking Witnesses if they Lie

State v. Locken (ICA November 28, 2014)
Background. Andrew Locken was charged with assault in the second degree against Larsen Kaneda and assault in the third degree against Karinne Wong, Kaneda’s girlfriend. Locken lived with two brothers: Konrad and Hans Bruesehoff. The Bruesehoffs lived with Kaneda. This group and some others went out to Dave & Buster’s for about two hours. Outside D&B, Locken got into an argument with a “local guy” that escalated to a challenge to fight. Wong intervened and the group drove home. From there, the testimonies are dramatically different.

Kaneda and Wong testified for the prosecution. Their version was that once back at the Bruesehoff house, Wong asked Locken why he’d want to start a fight when Hans was disabled (he had a pacemaker and artificial discs in his back). Wong testified that less than six months before that night, Locken was in a similar incident in which Locken wanted to fight a “local guy” that had “falsecracked” Konrad. On that night, Wong asked if Locken would pick his pride over other people’s safety. Locken said he’d pick his pride and got aggressive with them. He challenged Hans to a fight. Locken was restrained by others there, but called out to Hans.

As Wong tired to calm Locken down, Locken grabbed Wong’s hair and kicked her in the thigh. Kaneda intervened and Locken started kicking him. He landed about three kicks on Kaneda. Eventually others intervened and Locken was subdued.

The defense called two witnesses who were there. They said that Wong and Hans were acting drunk and that Wong was pestering Locken. She was yelling hysterically at him and Locken told her to mind her own business. That was when Wong lunged at Locken and tried to scratch or strike him. Kaneda attempted to pull Wong away and Konrad pushed at Locken. Locken did not grab Wong and didn’t kick or strike Wong or Kaneda.

During the trial, Locken’s counsel attempted to cross-examine Kaneda about his statements to the examining doctor. During that cross-examination, Locken asked if Kaneda lied to the doctor. The prosecution objected on the grounds that it was argumentative and the objection was sustained. After a few more objections were sustained, Locken moved for a mistrial. During a bench conference, the circuit court explained that it believed that asking a witness if he or she was lying called for a legal conclusion of some kind that only the jury could determine. The circuit court later ruled that Locken could not ask any witnesses if they lied. The judge (Judge Ahn) said that such questioning was prohibited and “is just not done.”

The jury found Locken guilty of the lesser-included assault in the third degree against Kaneda and guilty as charged for Wong. The circuit court sentenced him to probation for a year. Locken appealed.

“Falsecracked” Konrad. Locken argued that Wong should have never been permitted to testify about the incident in which Locken wanted to fight a “local guy” that “falsecracked” Konrad. The ICA disagreed.

Evidence of prior bad acts are not admissible to show the character of a person, but may “be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.” HRE Rule 404(b). This list is not exhaustive. State v. Clark, 83 Hawaii 289, 300, 926 P.2d 194, 205 (1996). According to the ICA, the prior bad act was not to show a propensity, but rather to explain why Wong asked Locken about choosing between his pride and other people’s safety. It was “relevant to showing the context for the questions directed at Locken by Wong and Locken’s reaction to those comments.” The ICA held that it also showed why Wong questioned Locken in the first place. That was enough for the ICA to hold that the prior bad act was relevant and admissible under HRE Rule 404(b).

Witnesses Know when they’re Lying. The ICA did, however, hold that the circuit court erred in ruling that the defense could not ask a witness if he was lying. Such a question—you lied to so-and-so or “weren’t you lying just now?”—must be distinguished from asking them to comment on other witnesses’ veracity. See State v. Maluia, 107 Hawaii 20, 25, 108 P.3d 974, 979 (2005). Asking a witness if he is lying is different than asking them to comment on the veracity of another witness. Whether a witness was lying goes directly to the witness’s credibility and prohibiting the defense from asking such questions is erroneous.

However, because Locken was able to show that Kaneda’s statements to the police were inconsistent with his trial testimony, the ICA held that he had sufficiently attacked Kaneda’s credibility and that the circuit court’s erroneous ruling was not harmless.

Other Issues. The ICA rejected the other issues raised by Locken which pertained to the wording of the self-defense instruction and the circuit court’s refusal to allow Locken to recall a witness to ask him if he had seen Kaneda in a sling earlier in the evening. The judgment was affirmed.

Wednesday, December 10, 2014

Defective Complaint is Not a Jurisdictional Defect

State v. Kam (ICA November 26, 2014)
Background. Cierra Ann Kam was charged as a repeat offender of operating a vehicle while under the influence of an intoxicant and operating a vehicle after her license to drive was suspended or revoked for OUI. The complaint failed to allege the required mens rea for each count.

After the complaint was filed, the HSC handed down State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). The HSC held that the portion of the complaint alleging OUI by way of facts (HRS § 291E-61(a)(1)) required the “intentionally, knowingly, or recklessly” mens rea. Id. at 54, 56, 61, 276 P.3d at 623, 625, 630.

In the wake of Nesmith, the prosecution moved to amend the complaint. Kam opposed on the grounds that the defect in charging the complaint was a jurisdictional one that required dismissal of the case all together. The district court granted the motion and the amended complaint was served on Kam. Kam acknowledged receipt and pleaded not guilty. Kam was found guilty after a stipulated facts trial and Kam appealed.

Footnote Schmootnote. Kam argued that the district court erred in granting the motion to amend. Kam depends on a footnote from the HSC in an unpublished summary disposition order from State v. Castro:

The State has proposed amending pending HRS § 291E-61(a)(1) charges pursuant to Hawaii Rules of Penal Procedure Rule 7(f)(1) post-Nesmith, but Nesmith makes it clear that the remedy for the deficient HRS § 291E-61(a)(1) charges is dismissal without prejudice.

The ICA disagreed and ignored the footnote.

Unpublished Decisions Carry no Precedential Weight. “Memorandum opinions and unpublished dispositional orders are not precedent[.]” Hawaii Rules of Appellate Procedure Rule 35(c)(2). Thus, the footnote was not controlling for the ICA and it was free to decide the case without consideration of the footnote.

So Is it Jurisdictional? The ICA also noted that the Castro footnote was undermined by a more recent published case from the HSC. State v. Davis, 133 Hawaii 102, 324 P.3d 912 (2014). In that case, according to the ICA, the HSC found the charge defective, but instead of ordering dismissal without prejudice, the HSC addressed Davis’s claim of insufficient evidence. Id. at 120, 324 P.3d at 930. According to the ICA, logic suggests that in order to do such a thing, the defect is not a jurisdictional one.

HRPP Rule 7 Applies over the Footnote. Instead of relying on the Castro footnote, the ICA held that the district court was free to apply HRPP Rule 7(f)(1), which affords the court discretion to allow the prosecution to amend charges before trial so long as “substantial rights of the defendant are not prejudiced.” Kam did not claim prejudice for failing to allege mens rea.

Sufficient Evidence Established to Uphold the Repeat Offender Provision. The ICA moved on to hold that even though no certified judgments were used to prove the prior conviction, none were required. The traffic abstracts were sufficient for the ICA.

What if there was No Challenge to Sufficient Evidence? In State v. Davis, the HSC held that Hawaii’s double jeopardy clause requires the appellate court “to address a defendants express claim of insufficiency of the evidence prior to remanding for a new trial based on a defective charge.” The HSC was concerned about cases getting retried when there had been insufficient evidence to convict in the first place. Such a situation would violate the Double Jeopardy Clause under the Hawaii Constitution.

From that case, the ICA here has extrapolated that the defect in the charge is not a jurisdictional defect requiring prompt remand and dismissal. Perhaps.


But what would happen if you had a defective charge, but sufficient evidence to convict? Shouldn’t the remedy be remand for dismissal and the opportunity for the prosecution to recharge? And in such a situation, the prosecution could then properly charge the defendant? Or would the prosecution simply move to amend the charging document once it is remanded to the trial court? Is that the proper remedy? In light of this case, it would seem so.

Tuesday, December 9, 2014

Right to Attend your Trial is not Invitation to Flee

State v. Vaimili (ICA November 12, 2014)
Background. Joseph Vaimili had been charged of kidnapping, terroristic threatening in the first degree, promoting prostitution in the first degree, and using or carrying a firearm while in the commission of a felony. Vaimili was released on bail. He appeared at some pretrial matters and at the selection of his jury. On the day the jury was supposed to be sworn in and trial to get started, Vaimili did show up in court. The trial court granted two continuances and he still did not show up. The prosecution filed a memorandum asserting that Vaimili left the islands and that sheriffs and police were actively searching for him on Oahu. Finally, about a month after the jury had been selected, the court proceeded with his trial in absentia. The jury found Vaimili guilty as charged. He was later found in Texas more than a year after the verdict, brought back to Hawaii, and sentenced to prison for 40 years. He appealed.

Disjunctive Charging as Alternative Means to a Single Offense is A-O.K. The charging instrument must inform the accused about “the nature and cause of the accusation.” Haw. Const. Art. I, Sec .14. It must “sufficiently apprise the defendant of what he or she must be prepared to meet to defend against the charges.” State v. Codiamat, 131 Hawaii 220, 223, 317 P.3d 664, 667 (2013).

Here’s the amended complaint:

Count I: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did intentionally or knowingly restrain [the CW], with intent to terrorize her or a third person, thereby committing the offense of Kidnapping . . . .
. . . .
Count II: On or about the 21st day of February, 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI, did intentionally or knowingly restrain [the CW], with intent to inflict bodily injury upon her or subject her to a sexual offense, thereby committing the offense of kidnapping . . . .
. . . .
Count III: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI threatened, by word or conduct, to cause bodily injury to [the CW], with the use of a dangerous instrument, to wit, an instrument that falls within the scope of Section 706-660.1 of the [HRS], with the intent to terrorize, or in reckless disregard of the risk of terrorizing [the CW], thereby committing the offense of Terroristic Threatening in the First Degree . . . .
. . . .
Count IV: On or about the 18th day of February, 2009, to and including the 3rd day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly advance prostitution by compelling [the CW] by force, threat, or intimidation to engage in prostitution, or did knowingly profit from such coercive conduct by another, thereby committing the offense of Promoting Prostitution in the First Degree . . . .
. . . .
Count V: On or about the 4th day of March, 2009, to and including the 5th day of March 2009, in the City and County of Honolulu, State of Hawaii, JOSEPH VAIMILI did knowingly carry on his person or have within his immediate control or did intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, to wit, Kidnapping and/or any included felony offense of Kidnapping, whether the firearm was loaded or not, and whether operable or not, thereby committing the offense of Carrying or Use of a Firearm in the Commission of a Separate Felony . . ., if he intentionally or knowingly restrain[ed] [the CW] with the intent to terrorize her or a third person.

Vaimili argued that this charging document was defective because it used the disjunctive throughout each of the counts. ICA disagreed. Using the disjunctive “may be appropriate when it provides notice to the defendant that the State may attempt to prove guilt by showing that the defendant committed any one of multiple related acts. This alerts the defendant that he or she must be prepared to defend against each of the charged alternatives.” Codiamat, 131 Hawaii at 226, 317 P.3d at 670. States of mind can be charged disjunctively. Id. at 227, 317 P.3d at 671. When the defendant is charged “under a single subsection of a statute, the charge may be worded disjunctively in the language of the statute as long as the acts charged are reasonably related so that the charge provides sufficient notice to the defendant.” Id.

Here, the ICA held that the use of the disjunctive in the counts against Vaimili was constitutionally sound. According to the ICA, the disjunctive were alternative means to prove the single offense. “For example, if an offense can be committed by alternative means A or B, the State can establish the defendant’s guilt by proving either means A or means B.” That, according to the ICA, provides fair notice that is constitutionally permissible.

Standing Trial without the Accused. When the offense is not capital and when the accused is not in custody, “the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” Diaz v. United States, 223 U.S. 442, 445 (1912).

A more recent articulation of the rule comes from Hawaii Rules of Penal Procedure (HRPP) Rule 43:
The further progress of a pretrial evidentiary hearing or of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present, . . . is voluntarily absent after the hearing or trial has commenced . . . .

“Trial has Commenced” at the Start of Jury Selection. The first issue, according to the ICA, was determining when “trial has commenced.” As a matter of first impression, the ICA held that trial has commenced when the court begins the jury selection process. The court arrived to that decision based on the language of the rule and noted how it is almost identical to the Federal Rules of Criminal Procedure. And so, the federal interpretation of their rules would be “persuasive” and “appropriate.” State v. Toguchi, 9 Haw. App. 466, 467, 845 P.2d 557, 558 (1993); State v. Caraballo, 62 Hawaii 309, 322 n. 12, 615 P.2d 91, 99 n. 12 (1980). Federal courts have held that jury selection marks the start of a trial. United States v. Alikpo, 944 F.2d 206, 209-10 (5th Cir. 1991); United States v. Bradford, 237 F.3d 1306, 1309-10 (11th Cir. 2001). At the same time, however, this is not the same triggering point for Double Jeopardy. Id. And so, the ICA held that Vaimili’s trial had “commenced” once the jury was selected and while he was in court.

No Contact with Lawyer and Bail Bond Company for Nearly a Month is “Voluntarily Absent.” Having held that trial had commenced, the next question was whether Vaimili had “voluntarily absent[ed]” himself by failing to appear once jury had been selected. The ICA held that the record provided compelling evidence that Vaimili had absconded. He was in the courtroom when the court told jurors when the trial would resume. He did not show. His lawyer told the court that he had lost contact with him. There was no explanation for the failure to appear. The court continued the case for five days.

When they appeared again, his whereabouts were still unknown. His lawyer didn’t know where he was and his bail bond company couldn’t find him. The court continued the trial for another 22 days and his whereabouts were still unknown. The bail bond company still couldn’t find him and informed the court that it was looking for him on the mainland. That, according to the ICA, was sufficient evidence to show that Vaimili was voluntarily absent from the trial.

Proceeding in Absentia is not an Abuse of Discretion? The final issue was whether the trial proceeding should have continued without Vaimili. Vaimili relied on State v. Okamura, 58 Haw. 425, 570 P.2d 848 (1977). There, the defendant, then in custody, went to the bathroom, but jumped out of a window and hurt himself. The trial court refused to stop the proceedings for the day and demanded his return (even though he was in the hospital being treated for his injuries).

The decision to proceed without the voluntarily absented defendant “lies in only a narrow discretion given to the trial judge” in which the judge must “weigh the competing interests at stake.” Id. at 429, 570 P.2d at 852. The court must carefully balance the defendant’s “right to confront his accusers, and other possible prejudice which might result from his absence, . . . against the time and expense caused by defendant’s effort to defeat the proceedings by his departure or flight.” Id. Moreover, “the narrow discretion given to the trial judge to proceed with trial should be exercised only when the public interest clearly outweighs that of the absent defendant.” Id. at 430, 570 P.2d at 852.

The ICA noted that the balancing test in Okamura is required even after the court concludes that the accused voluntarily absented himself or herself. But after Okamura, the HSC in Caraballo did not apply the balancing test. In Caraballo, the defendant walked out of his trial while he was on bail.

Despite the legal question, the ICA held that even if the Okamura balancing test did apply, there was enough in front of the trial judge to proceed without Vaimili. It was clear from the record that Vaimili was gone and not likely to return soon. Trials cannot be postponed indefinitely and the public interest in proceeding clearly outweighed Vaimili’s interests. The ICA affirmed the judgment.


Another Distinct Absence. This case suggests that there has been no further discussion after Caraballo. But what about State v. Kaulia? There, the HSC held that the trial court abused its discretion in proceeding with trial after the defendant got up and announced that he was walking out of the courtroom. The HSC held that a colloquy was required. Can this case be squared with Kaulia? Possibly. How should we read that case with this one?

Monday, October 13, 2014

Solicitation Requires Proof of Request or Demand for Money

State v. Abel (HSC September 24, 2014)
Background. James Abel was charged with the city ordinance of solicitation with animals in Waikiki, a violation of ROH § 29-13.2(b). At trial, HPD Sergeant Stacey Christensen testified that one day she was “enforcing parking violations” in Waikiki. She saw Abel “with birds fronting the Outrigger standing on the sidewalk.” Abel was putting birds on people and taking pictures of them with their cameras and the people would give him money. She couldn’t make out what they were saying and could not discern how much money was given to Abel. Abel moved to acquit and argued that the elements had not been met because the prosecution could not prove solicitation. The motion was denied. Abel argued that there was still insufficient evidence to show solicitation, which is basically defined as a demand for gifts or money. During his closing, Abel argued that “[m]erely extending the gesture of placing birds on someone and taking a photo is just an extension of the aloha spirit. It’s not meant to . . . be a solicitation.” Abel was found guilty and sentenced to a fine of $300 and a court fee of $30. Abel appealed, and the ICA affirmed. Abel petitioned for cert.

 Breaking Down a Criminal Offense. “The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct as: (a) Are specified by the definition of the offense, and (b) Negative a defense[.]” HRS § 702-205. In this case, Abel was prosecuted for violating ROH § 29-13.2(b):

In the Waikiki special district, no person shall use any live animal in furtherance of any solicitation on any public property . . .
. . . .
(b) The person conducting the solicitation shall not place the animal on or otherwise transfer the animal to any other person.

Id. The HSC broke this ordinance down into the following elements: (1) a solicitation, (2) use of a live animal in furtherance of the solicitation, (3) a transferring of the animal by the person conducting the solicitation onto another person, and (4) the occurrence of the solicitation on public property in the Waikiki Special District. Id. “Solicitation” means “to request or demand money or gifts.” ROH § 29-13.1.

Solicitation Requires Proof of a Demand or Request. The crux of this case came down to interpreting the word “solicitation.” The HSC noted that even though the language of the ordinance—to request or demand money or gifts—is straightforward, it was still free to look elsewhere to ascertain its meaning. The HSC explained that “the plain language rule of statutory construction . . . does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review.” Keliipuleole v. Wilson, 85 Hawaii 217, 227, 941 P.2d 300, 304 (1997). One place to look would be the legislative history in order to “discern the underlying policy [that] the legislature sought to promulgate.” State v. McKnight, 131 Hawaii 379, 388, 319 P.3d 293, 307 (2013). When the court cannot glean the policy through legislative history, the court could be unable to determine if the literal construction would produce an absurd or unjust result. Keliipuleole, 85 Hawaii at 221, 941 P.2d at 304.

Luckily, there was plenty of evidence for the HSC to ascertain the policy underlying this ordinance. In the end, the HSC noted that the City Council passed this ordinance to regulate those requesting or demanding money from tourists in exchange for using animals. It was not designed to prevent folks from displaying and presenting animals to tourists or even prevent them from having tourists snap pictures with them.

Witnessing a Transaction is Not Enough to Prove “Solicitation.” Turning to this case, the HSC noted that there was only evidence of people paying Abel after he took a picture of them with parrots on them. The prosecution, however, has to prove a demand or request for money or gifts. No such demand was proven. According to the HSC, “Sgt. Christensen did not hear any conversations between Abel and other individuals, or overhear any statement or comment regarding a fee. There was no evidence that Abel had a sign requesting money or a tip jar on the public sidewalk that would imply money was expected. Likewise, there was no evidence that Abel made any hand or head gestures indicating a request for money.” And so, the conviction was reversed for lack of evidence.

Proving a Demand or Request. The HSC has drawn a very fine line. Folks standing around with birds in Waikiki can put their birds on tourists and let them take pictures with them so long as they don’t “request or demand” money or gifts. That means you can’t ask, put your hand out, or even have a tip jar “that would imply money was expected.” What about a “DONATIONS WELCOMED, (BUT NOT REQUESTED)” sign? Surely that’s not a demand, but perhaps it’s more of a request. So what if the sign said “DONATIONS WELCOMED (BUT NOT REQUESTED)”? Perhaps at that point a birdman would be tempting fate. What about a jar full of dollar bills and no sign at all? Would that “imply money was expected?” At least these guys are happy for now.

Wednesday, October 1, 2014

Cops can Execute a Warrant in the Middle of the Night in a Public Park

State v. Williams (ICA September 22, 2014)
Background. Fred Williams was in Cartwright Park in Honolulu after closing time. The signs around the park posted that no one can be there between the hours of 10:00 p.m. and 5:00 a.m. The police found him and cited him for being in the park during the off-hours. In the process, they discovered that an outstanding bench warrant (a judge ordered a warrant for his arrest for failing to show up to court on an unrelated matter) was out for him. He was subsequently arrested for that. After being placed in handcuffs, the police discovered a glass pipe, two lighters, and small baggies on his person. This discovery led to prosecuting him for possession of drugs and drug paraphernalia. The warrant, however, expressly and explicitly stated that it could not be executed between the hours of 10:00 p.m. and 7:00 a.m. “on premises not open to the public.”

Williams moved to suppress on the grounds that the warrant was improperly executed. The circuit court granted the motion. The prosecution appealed.

The Limits of Executing Warrants. Warrants shall “contain a prohibition against execution of the warrant between 10:00 p.m. and 7:00 a.m. on premises not open to the public, unless a judge of the district or circuit court permits execution during those hours in writing on the warrant[.]” Hawaii Rules of Penal Procedure (HRPP) Rule 9(b). The Williams warrant contained this prohibition. And yet the warrant was executed on a premises that was “not open to the public”—Cartwright Park after dark.

Court rules are interpreted like statutes. Molinar v. Schweizer, 95 Hawaii 331, 334-35, 22 P.3d 978, 981-82 (2001). When “the terms of a statute are plain, unambiguous and explicit, we are not liberty to look beyond that language for a different meaning.” State v. Haugen, 104 Hawaii 71, 75, 85 P.3d 178, 182 (2004). But this isn’t always the case. According to the ICA, when a literal construction leads to “an absurd and unjust result,” id., the court can resort to the legislative history to discern the intent behind the language.

“Not Open to the Public” Means Private and Places that the Public can go to. The ICA zeroed in on the part of the rule that forbid the police from executing warrants in places at night that were “not open to the public.” The Judicial Council of Hawaii’s Committee on Revision of the Rules of Criminal Procedure came up with these words in the 1970s. Back then, the drafters used the words “not open to the public” instead of “private” in order to avoid the technical and difficult questions related to title.

The ICA agreed with the prosecution that a literal reading of the prohibition lead to an absurd and illogical result. It concluded that limiting the execution of warrants “on public property only to those hours the property is technically ‘open’ is to make the exception a nullity.”

No Need to Fear Nighttime Warrant Executions Here. Warrants are normally not allowed to be executed at night because there is a “greater expectation of privacy that individuals possess in their homes at night” and a nighttime search creates a “heightened safety risk since people may tend to overreact to an entry by force in the dead of night[.]” State v. Richardson, 80 Hawaii 1, 7, 904 P.2d 886, 892 (1995). This concern, according to the ICA, is absent when the warrant is executed on public property.

And so the ICA vacated the suppression order and remanded the case back to the circuit court for further proceedings.

Rule 9 and the Homeless Hypothetical. The ICA appears to have held Rule 9’s “prohibition against execution of the warrant between 10:00 p.m. and 7:00 a.m. on premises not open to the public” does not prohibit the police from executing a warrant in a public park during off-hours. The details surrounding Williams and Cartwright Park in this opinion are few and far between. Perhaps Williams was standing around and the police approached him for being in the park after dark. That seems to fit well with the ICA’s interpretation of Rule 9.


But what if this wasn’t Cartwright Park? What if this was Aala Park and what if Williams was living in a tent? Or even under a shopping cart? Would the “greater expectation of privacy” still be absent? According to the ICA, the answer seems to be yes. The ICA held as a matter of law that the police may execute a warrant in the middle of the night so long as the person is on public property—even if you’re in a tent on that public property. That strongly suggests that the homeless do not have an expectation of privacy. Now, we will have to wait for such a case to come before the appellate courts to determine that much more difficult question.

Monday, September 8, 2014

Chit Chat with a Cop Didn't Arise to Custodial Interrogation

State v. Kazanas (ICA August 29, 2014)
Background. On Halloween night, a complainant was driving his car through Waikiki to watch the Halloween festivities. The driver got to Kuhio Avenue at an intersection and stopped to let a group of people cross. As he entered the intersection, a straggler ran across the road and ran into the car. A group surrounded the car and started pounding the windows and kicking the car. The back window cracked. The complainant saw a man on the hood with heavy boots stomping the windshield. The man then got off the hood, walked around to the driver, and punched the driver several times in the face.

Ex-cop, James Easley identified Gregory Kazanas as the man who punched the driver. Easley remembered Kazanas because when he was a cop, he jumped or fell from the ninth floor of a condo in Waikiki, landed on a beach chair on the pool deck, and was coherent when he responded to the scene. The driver in the meantime was able to drive off and find the police. Easley later saw police near the car. Easley walked through Waikiki and found Kazanas. He called the cops and they arrested Kazanas. One of the officers, Christy-Lynn Avilla took Kazanas to the hospital. She saw that Kazanas had cuts on his hands.

In the hospital waiting room, Avilla struck up a conversation with Kazanas in order to calm him down. She later testified that Kazanas was making rude comments at the hospital and she wanted to ask him questions unrelated to the case. She asked him if he had enjoyed Halloween and about the costumes he saw. She admitted that she did not apprise Kazanas of his right to remain silent, his right to counsel, or any other Miranda-Santiago rights. Instead, Avilla “told him that he was not allowed to talk about the case or say anything about what he had been arrested for.”

According to Avilla, out of this small talk, Kazanas said, “I wouldn’t have to punch people if they didn’t upset me.” The circuit court allowed the prosecution to use this statement against him at trial. He was found guilty of unauthorized entry into a motor vehicle in the first degree and sentenced to probation with 90 days jail. Kazanas appealed.

Small Talk with a Police Officer is not a Custodial Interrogation. The ICA’s analysis did not begin with the black-letter recitation of Miranda  warnings and when they are required to be given to suspects. Instead, it discussed why we have Miranda  in the first place. According to the ICA, Miranda warnings were “designed to safeguard a defendant’s privilege against compulsory self-incrimination.” It noted that the Miranda court back in the 1960s, “cited a number of police interrogation techniques that used psychological ploys and pressure to obtain statements from suspects in custody.” Thus, the Supreme Court of the United States required a suspect in custody to receive warnings of specific rights before being subjected to the “custodial interrogation.”

And so in this case there was no question that Kazanas was in custody. The issue was whether he was subjected to an “interrogation” by Avilla. “Interrogation” means “express questioning or its functional equivalent.” Innis v. Rhode Island, 446 U.S. 291, 300-01 (1980). It includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. In addition to the Fifth Amendment, there’s Article I, Section 10 in the Hawaii Constitution. According to the ICA, the Innis definition was adopted for the state constitution. See State v. Ketchum, 97 Hawaii 107, 119, 34 P.3d 1006, 1018 (2001).

Here, the ICA held that Kazanas’ statement to Avilla was not the product of an “interrogation.” Although he had never been Mirandized, he was warned not to talk about the case. Once at the hospital, Avilla tried to engage in “small talk” to calm Kazanas down. There was no way, according to the ICA, that she could have anticipated that he would make an incriminating statement. It was not responsive to her questions about Halloween in Waikiki.

Judge Foley’s Dissent. Judge Foley wrote that when examining whether the circumstances point to an “interrogation,” the court must determine if the police officer should have known that “their words or actions were reasonably likely to elicit an incriminating response from the person in custody.” See State v. Naititi, 104 Hawaii 224, 236, 87 P.3d 905 (2004). Judge Foley agreed with Kazanas that even though Avilla did not intend to elicit an incriminating response from him through the seemingly innocuous questions about Halloween, she should have known it was likely to have elicited such a response. Avilla, unlike the detectives in Ketchum and State v. Ikaika, 67 Haw. 563, 698 P.2d 281 (1985), knew about the investigation. By asking Kazanas about his Halloween night she had invited him to describe his involvement in the events leading to his arrest. Thus, his statement about punching people was the product of a custodial interrogation. Moreover, Judge Foley believed that the use of the statement by the prosecution at trial was not harmless beyond a reasonable doubt. Accordingly, the statement should have been suppressed.

Thursday, July 17, 2014

The Public's Right to Know (About Potential Juror Misconduct)

Oahu Publications Inc. v. Ahn (HSC July 16, 2014)
Background. Last summer, Christopher Deedy was on trial for the death of Kollin Elderts. After weeks of testimony, the case went to the jury for deliberation. The jury deliberated for several days before it became hopelessly deadlocked and the circuit court, Judge Karen Ahn, declared a mistrial. This case was covered by Oahu Publications, better known as the Honolulu Star-Advertiser, and KHNL/KGMB. On the fifth day of jury deliberations, Judge Ahn held five hearings that were not open to the public at the end of which, Judge Ahn sealed portions of transcripts pertaining to these sessions. At the last proceeding, Judge Ahn ordered the courtroom cleared a few times. The media did not object to the closing of the courtroom. When they resumed in the open, Judge Ahn declared a mistrial.

A few weeks later, the Star-Advertiser and KHNL/KGMB (the media) filed in the HSC petitions for a writ of prohibition and a writ of mandamus on the grounds that the closing of the courtroom and sealing of portions of transcripts violated the First Amendment. The media asked the HSC to issue a writ that prohibited Judge Ahn from further sealing the transcripts and unsealing what she has previously sealed. The media also asked for a writ that would prevent Judge Ahn from closing the courtroom and sealing documents during the re-trial (which is happening right now) without first providing notice, an opportunity to be heard, and the issuance of findings of fact for preventing public access to the courtroom.

The HSC eventually remanded the case with instructions to litigate the issue further by having the media file motions and allowing the State to respond. Judge Ahn granted the motion in part and explained her actions. She also unsealed parts of the transcript. The transcripts revealed that the closed sessions addressed a potential issue pertaining to juror misconduct. The issue started when a juror asked Judge Ahn’s clerk what they should do if “we feel one of the jurors is a friend of one of the sides?”

This lead to bringing in the foreperson for questioning. The foreperson reported that he noticed a juror eating lunch with “the family” and it looked to the foreperson like the juror was friends of the family based on interactions in the hallway outside the courtroom. The juror was brought in for questioning by Judge Ahn. The juror told the court that he or she “can be fair to both sides” in this case. Deedy objected to the questioning as insufficient, but was overruled.

Later sessions revealed that the jury was going to be deadlocked. Deedy revisited the sufficiency of the questioning by Judge Ahn and argued that if a retrial were to happen, this could bring about Double Jeopardy concerns. The State agreed and requested further questioning of the juror. At the final closed session, Judge Ahn questioned the juror further. The juror said that he shook hands with “one guy I used to work with . . . I think like almost seven years ago.” The juror said it did not influence him in this case. The juror, however, did say that he had some contact with someone associated with the case. The juror said that there was another time in which he saw a person that could be associated with the case. Deedy requested more questions to determine if there was in fact juror misconduct. The State objected. The remainder of the proceedings were sealed.

The proceedings returned to the HSC.

The First Amendment and the Qualified Right to Attend Jury Trials. “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]” U.S. Const. Am. I. “The right to attend criminal trials is implicit in the guarantees of the first amendment.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This right is not unlimited. It is based on the considerations of “logic and experience.” Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty, 478 U.S. 1, 8 (1986). “Experience” prong, the court must determine if “the place and process have historically been open to the press and general public” Id. The “logic” prong hinges on whether “public access plays a significant positive role in the functioning of the particular process in question.” Id. If both are satisfied, a qualified First Amendment right of access attaches to the proceeding. The SCOTUS held that the First Amendment applies to the evidence and testimonial phase of the trial, Richmond Newspapers, Inc., 488 U.S. at 580, as well as the testimony of minors, Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 586, 606 (1982), and during voir dire. Press-Enter. Co., 464 U.S. 501, 505 (1984).

The Hawaii Constitution’s Right to Free Speech and Press. “No law shall be enacted . . . abridging the freedom of speech or of the press[.]” Haw. Const. Art. I, Sec. 4. In interpreting this provision, the HSC “considers the case law established under the first amendment of the United States Constitution.” In re: HGEA, 116 Hawaii 73, 84, 170 P.3d 324, 335 (2007). Even though the language between the state and federal constitutions are pretty much identical, the HSC “may find that the Hawaii Constitution affords greater free speech protection than its federal counterpart.” Crosby v. State Dept. of Budget & Fin., 76 Hawaii 332, 340 n. 9, 867 P.2d 1300 (1994). According to the HSC, throughout Hawaiian history, the public has enjoyed a “long tradition” of access to the courts. This tradition goes back to the 1820s as the kapu system gave way to more Westernized courts of law. “Courts are established for the judicial administration of justice. They are open to the public . . . . The fact that they are open serves as a safeguard of the integrity of our courts." State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963). Put differently, “[t]he words ‘public trial’ are self-explanatory.” Id.

“Procedural and Substantive Requirements.” So if the right attaches, the court has to undergo certain “procedural and substantive requirements.” The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” United States v. Brooklier, 685 F.2d 1168, 1167-68 (9th Cir. 1982). In order to justify closing the courtroom, the court must find (1) closure serves a compelling interest; (2) there is a substantial probability that, absent the closure, the compelling interest would be harmed; and (3) there are no alternatives to closing the courtroom that would protect the interest. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Ore., 920 F.2d 1462, 1466 (9th Cir. 1990).

So When Does the Court have to do this? The HSC examined when the trial court must make these provide opportunity to object and make findings. Here, the stage of the trial was no longer during the testimony of witnesses or the evidentiary phase of the case, but what it called the “midtrial examination of jurors.” The HSC also examined the sealing of transcripts of the closed proceedings as a close analogy.

Examining Jurors for Potential Juror Misconduct is a Critical Stage of the Trial Creating a Limited First Amendment Right for the Press. First off, the HSC noted that public access of the examination of jurors to determine the possibility of misconduct may infringe upon the defendant’s right to an impartial jury. U.S. Const. Am. VI; Haw. Const. Art. I, Sec. 14. This right means that the defendant enjoys the right to impartial jury deliberation, which “shall remain private and secret[.]” United States v. Olano, 507 U.S. 725, 737 (1993); State v. Kim, 103 Hawaii 285, 292, 81 P.3d 1200, 1207 (2003) (“public policy demands that the sanctity of jury deliberations be vigorously guarded to ensure frankness and open discussion.”).

Whenever there is the possibility of juror misconduct, the trial court has a duty to investigate. State v. Yamada, 108 Hawaii 474, 479, 122 P.3d 254, 259 (2005). Herein lies the conflict. The investigation of juror misconduct must be made on the record, but that would include proceedings to which the public normally has access. From here, the HSC applied the “logic and experience” test to midcourt proceedings.

As for the experience portion, the HSC concluded that there is no clear tradition of “either open or closed proceedings when a court conducts a midtrial examination of jurors regarding misconduct.” And so it was a push. The HSC held that under the experience prong, there is “little guidance in this case and it is appropriate to give greater weight to the ‘logic prong[.]’” From there, the HSC held that logic supported an open courtroom. In the end, the HSC held that the qualified right of access to the courtroom at trial is “not extinguished by the mere necessity to conduct midtrial examination of jurors to investigate juror misconduct.”

The Trial Court did not Follow the Necessary Procedures. Having held that there was a constitutional dimension to these proceedings, the HSC looked to the closing of the courtroom. It noted that the trial court made no findings justifying the closure of the courtroom. The generalized statements later made by the trial court about the pressure of having the media there was simply insufficient. The court must “make factual findings specific to the circumstances that indicate the substantial likelihood that an open hearing would interfere with the defendant’s right to a fair trial by an impartial jury.”


The Same Goes for Transcripts. The HSC moved on to examine whether the transcripts should have been sealed. It applied the logic and experience test and held that the trial court must make findings justifying the sealing of transcripts—even after the trial is over. Here, the transcripts were sealed for nearly six months after the mistrial had been declared. The HSC held it should have been unsealed for the public sooner.