The esteemed panel.
Just a reminder to join us at the Bar Convention on September 21 – we have a great program lined up, including our distinguished appellate panel from 11:00 to 11:45 comprised of Chief Justice Recktenwald, Justice Acoba, Chief Judge Nakamura, Judge Leonard, and Solicitor General Girard Lau!
Recognizing that Amar’s textualism makes him a rarity among progressive law profs, Barnett notes that Amar nevertheless holds out that constitutional text may properly give way to contrary precedent when public opinion strongly sides with the precedent, and ultimately concludes that Amar’s argument for an ‘unwritten Constitution’ suffers the same fatal flaw as any other appeal to ‘living constitutionalism’
Despite Mr. Amar’s best attempts to convince us otherwise, the danger of the unwritten Constitution remains. The label elevates non-constitutional authorities to a stature equal to, or even greater than, that of the written Constitution. Where Mr. Amar cannot make the written Constitution say what he wants, he can simply appeal to the unwritten Constitution to say the rest. And, judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.
On its face, Amar’s statement that ”An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand if the precedent is later championed not merely by the court, but also by the people” denies an important role of the Constitution in protecting our rights from the vicissitudes of popular public opinion.
Last week the Hawaii Supreme Court heard arguments in State v. Rodrigues, SCWC-30692 – a case involving the inevitable discovery doctrine. The Circuit Court of the Fifth Circuit had ruled that under Hawaii’s heightened standard (compared to the federal doctrine’s preponderance standard), the state failed to show by clear and convincing evidence that the suspect could not have gotten to and discarded a small baggy of drugs illegally recovered in a search incident to arrest.
As arguments developed, it became clear that the court’s main concern was that the inevitable discovery doctrine tends to defeat any protections against illegal searches incident to arrest where the state can simply show that the evidence would have been discovered anyway at the jailhouse in the thorough custodial searches that are routine when a suspect is brought into the facility.
The court appeared receptive to the argument that the circuit court’s rule requires too much when it demands clear and convincing evidence that, had the contraband not been found, the suspect could not have discarded it unnoticed on the way to the jail. However, Justices Nakayama, McKenna, and Recktenwald expressed doubts for the reason stated above that the inevitable discovery should be assumed as a matter of course.
Justice Nakayama prodded counsel on both sides about a bad faith exclusion that would negate inevitable discovery in the case of police bad faith in the prior illegal search.
Notwithstanding the “notwithstanding any other law to the contrary” language of HRS §712-1240.8, the methamphetamine trafficking in the 2d degree sentencing statute (mandating sentencing for those convicted of that crime), the circuit court of the First Circuit was moved to instead sentence a 20 year old offender under the less harsh terms of HRS § 706-667, the young adult defendant’s sentencing statute.
Vacating and remanding the sentence, the ICA said in State v. Casugay-Badiang, CAAP-11-802
HRS § 712-1240.8 clearly precludes the applicability of sentencing as a young adult defendant under HRS § 706-667 for cases involving methamphetamine trafficking in the second degree because HRS § 706-667 is contrary to HRS § 712-1240.8. The legislature intended to divest the circuit court of its discretion to sentence Casugay-Badiang under any sentencing statute other than HRS § 712-1240.8(3). State v. Dannenberg, 74 Haw. 75, 80-81, 837 P.2d 776, 778-79 (1992) (the language “notwithstanding any law to the contrary” in the prostitution statute “clearly [limited] the discretion of the trial court in sentencing prostitution offenses and to provide a mandatory sentencing structure unlike that for other petty misdemeanors.”).
Reading the recent U.S. Dist. Court decision upholding Hawaii marriage laws in Jackson v. Abercrombie, I noted the following language from Bissen v. Fujii, 51 Haw. 636, 466 P.2d 429 (Haw. 1970):
In discussing the importance of judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the ned to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.”
Bissen was an appeal from the circuit court’s denial of plaintiff’s motion to strike the defense of contributory negligence, in an action arising from an automobile accident, on grounds that comparative negligence and not contributory negligence was law of the jurisdiction thanks to recently passed legislation. The court noted that the accident had occurred before the law changed, and that the new statute expressly stated that it would not be retroactive. The appeal to deference to the legislature reads as follows:
Article III, Section 1 of our State Construction vests the legislative power of the State in the legislature. The legislative power has been defined as the power to enact laws and to declare what the law shall be. Gas & Electric Sec. Co. v. Manhattan & Queens Traction Corp., 266 F. 625 (2d Cir. 1920); People v. Puckett, 324 Ill. 293, 155 N.E. 319 (1927); Browne v. City of New York, 213 App.Div. 206, 211 N.Y.S. 306 (1925), aff’d, 241 N.Y. 96, 149 N.E. 211 (1925). Under this power the legislature also has authority to enact statutes to modify or change, for the future, common law as may have been established by decisions of courts. People v. Grand Trunk Western R. Co., 3 Mich.App. 242, 142 N.W.2d 54 (1966); S. H. Kress & Co. v. Superior Ct., 66 Ariz. 67, 182 P.2d 931 (1947). Certainly, a legislative enactment adopting the doctrine of comparative negligence in place of the common law rule of contributory negligence is strictly within the legislative power. The act in no way attempts to interfere with the judicial functions and no one has questioned its legality as an unconstitutional encroachment of the judicial branch of government.
We should recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.
Although the courts frequently venture into judicial law-making where there are gaps in substantive law, particularly in the field of torts, once the legislature has acted, it is not for us to evaluate the wisdom of legislative action, including the determination regarding retroactive or prospective applicability. Even Professor Fleming James, Jr., coauthor of Harper and James, The Law of Torts (1956), and who is one of those ‘who accept or welcome the present regeneration of judicial law making in the field of torts,’ states: ‘All concede that it is proper legislative function to make and change the law and that the courts should always respect the exercise of this function by a coordinate branch of government.’ [fn 2]
FN2. Fleming, Comment of Maki v Frelk, 21 Vand.L.Rev. 891, 893 (1968).
It should be remembered that though this court makes law on a case-by-case method, it is not a legislature. Further, at this time, we should not engage in ‘wholesale’ legislation such as the adoption of the doctrine of comparative negligence in place of contributory negligence. Such act on our part may frustrate the trial courts in their attempt to solve a countless number of questions and problems with which they will be faced.
“To establish constructive possession of an item, intent to exercise dominion and control over it must be shown in addition to knowledge of the item and the power to exercise dominion and control.” State v. Foster, No. SCWC-29799 (Hawai‘i, July 31, 2012).
Defendant-driver and Passenger were stopped by officers. A rifle was on the floor of the back seat and a clip sat on the console between Defendant and Passenger. Defendant said he picked up Passenger earlier in the evening and that Passenger had a ukulele case with him. Passenger later asked Defendant to stop. Defendant removed an assault rifle from the ukulele case, got out of the car, fired off rounds, and got back in the car.
A jury convicted Defendant of firearm and ammunition charges. The Circuit Court granted Defendant’s renewed motion for judgment of acquittal concluding that the evidence did not establish the requisite intent to exercise dominion and control over the firearm and ammunition.
On appeal, the ICA found substantial evidence to support Defendant’s convictions, noting Defendant’s proximity to the rifle and the ammunition in the vehicle and his knowledge of that proximity; Defendant’s “ultimate control over who and what was allowed inside the vehicle as well as the activities occurring inside”; and Defendant’s lack of fear of Passenger and the absence of any threats from Passenger, which was circumstantial evidence of, “at a minimum,” Defendant’s willingness to assist Passenger in the latter’s activities involving use of the firearm and ammunition. Accordingly, the ICA vacated the circuit court’s order and remanded the case for resentencing based on the jury’s guilty verdicts.
On writ of cert. the Supreme Court concluded that the ICA erred in holding that the State presented sufficient evidence of Defendant’s intent to exercise dominion and control over the firearm and ammunition to enable the jury to reasonably infer that he constructively possessed them.
The Court said the case was analogous to State v. Moniz, 92 Hawaii 472, 476, 992 P.2d 741, 745 (App. 1999)(insufficient showing of intent to possess marijuana found in home where wife strongly opposed husband’s drug use, did not procure and never smoked the marijuana, and testified that she could not have disposed of the marijuana or husband would get angry) and distinguishable from State v. Brown, 97 Hawaii 323, 326, 37 P.3d 572, 585 (App. 2001)(substantial evidence to establish intent to possess burglar’s tools where tools were in backpack on the floor of stolen seafood distributor van driven by defendant and where there was substantial evidence that the defendant and his passenger were engaged in joint criminal activity).
According to the court, as in Moniz, the State failed to present any evidence that Defendant had the intent to exercise dominion and control over the firearm and the ammunition, while the record failed to demonstrate that the rifle was used in furtherance of criminal activity as contemplated by Brown, and there was insufficient evidence to suggest a joint venture or agreement between Defendant and Passenger to go deer hunting or shooting for pleasure.
The Hawai‘i Supreme Court granted cert. last week in a Summary Disposition order affirming the defendant’s conviction for OVUII.
In State v. Avilla, No. 30701 (Haw. App. April 9, 2012) the ICA (Nakamura and Foley) held under the clear abuse standard that the district court erred when it admitted into evidence Defendant’s performance on an HGN test because a proper foundation had not been established under State v. Ito, 90 Hawai’i 225, 244, 978 P.2d 191, 210 (App. 1999), but that the error was harmless.
The court found “overwhelming and compelling evidence tending to show beyond a reasonable doubt that [Defendant] was guilty of being under the influence of alcohol in an amount sufficient to impair her normal mental faculties or ability to care for herself and guard against casualty,” and therefore concluded “that the district court’s error in admitting the HGN test into evidence was harmless” where the officer testified that
- Defendant passed him at a high rate of speed,
- For no apparent reason, Defendant suddenly slowed down, pulled over, went over some train tracks and a curb, and stopped in a school bus lane
- Defendant gave the officer an expired license and when he asked for her registration, started “slamming things” and becoming “a little more aggressive.”
- The officer smelled a “medium to strong odor” of alcohol on her breath. His police report described the odor as “strong.”
- Defendant’s eyes were red and watery and her speech was slurred.
- During the administration of the HGN test, the officer noticed Defendant was unable to stand still, had a constant one-inch circular sway, and had to move her feet to avoid losing her balance.
- Defendant refused to proceed with the other field sobriety tests and became verbally aggressive, yelling, “Do you know who I am? Do you know who I’m related to?”
J. Reifurth dissented, agreeing with the majority’s conclusion that the district court erred by admitting into evidence testimony concerning Avilla’s performance on the HGN test, but disagreeing that the error was harmless beyond a reasonable doubt.
Because the district court actually relied upon the results of the HGN test when it found Defendant guilty and because Defendant’s performance on the HGN test might have bolstered the remainder of the officer’s testimony in the eyes of a reasonable fact-finder, the dissent concluded that there is a reasonable possibility that the error might have contributed to the conviction.
Harmless Error, OVUII, NSG, foundation, evidence, clear abuse
In State v. Nesmith, 127 Hawai`i 48, 276 P.3d 617 (2012), the Hawaii Supreme Court recently held that: (1) mens rea (state of mind) must be alleged in a charge asserting a violation of HRS 291E-61(a)(1) in order to provide fair notice of the nature and cause of the accusation; and (2) mens rea need not be alleged (or proven) in a charge asserting a violation of HRS 291E-61 (a)(3), because the legislative intent to impose absolute liability for that offense plainly appears.
§291E-61 Operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath
Because there is no state of mind specified in the statute, HRS 702-204 applies. Under that section, when the state of mind required to establish an element of an offense is not specified in the law, the applicable state of mind is intentionally, knowingly, or recklessly. Additionally, the state of mind applies to all the elements of the offense, unless otherwise specified in the statute.