IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
STATE OF HAWAII, Plaintiff-Appellee, v.
NATHAN ORTIZ, Defendant-Appellant
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 99-0071)
MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Foley, JJ.)
Defendant-Appellant Nathan Ortiz (Ortiz) appeals the November 15, 1999, judgment of the circuit court. Ortiz was found guilty of:
Unlawful Imprisonment in the Second Degree, (1) in violation of Hawaii Revised Statutes (HRS) § 707-722 (1993) (Count 1);
Terroristic Threatening in the Second Degree, (2) in violation of HRS § 707-717 (1993) (Count 2);
Theft in the Second Degree, in violation
of HRS § 708-831(1)(a) (Supp. 2000) (Count 3); and
Attempted Assault in the Second Degree,
(3) in violation of HRS
§ 707-711 (1993) (Count 4).
On Counts 1 and 2, Ortiz was
sentenced to a one-year term of imprisonment for each count; on Counts
3 and 4, he was sentenced to a ten-year term of imprisonment for each count.
All sentences were to run concurrently. Ortiz was also ordered to pay $192.32
in restitution.
Ortiz contends that the circuit
court erred in not dismissing the indictment (4)
because the state judiciary personnel (5)
failed to comply with HRS Chapter 612 (which governs jury selection) or,
in the alternative, that his trial counsel was ineffective. Ortiz further
contends the circuit court erred in ruling that a district court judge
had jurisdiction and authority to preside over his felony jury trial and
erred in refusing to compel discovery of a prosecution recording and a
victim counselor's notes. We disagree with Ortiz's contentions and affirm
the November 15, 1999, circuit court judgment.
I. BACKGROUND Son Kyu Pak (Pak) testified that
she met Ortiz at hair design school in 1997 and that they dated for about
six months in 1998. Pak was scheduled to testify for Ortiz in his trial
in an unrelated case on January 5, 1999. She did not go to court that day
because Ortiz's attorney had called and told her she did not have to appear.
Later the same day, Ortiz called Pak and asked her to meet him at Restaurant
Row. Pak testified that when she met with Ortiz he was "kinda angry" because
she had not come to court. After drinking at Restaurant Row, Ortiz wanted
to go drink some more. Ortiz drove Pak in her car to another bar, had a
drink, and then drove her to where his car was parked. Ortiz wanted to
continue drinking, but Pak said no. Ortiz then took off in Pak's car and
left Pak to follow him in his car to the Wisteria restaurant.
Pak testified that at Wisteria,
Ortiz parked Pak's car, walked over to his car, and wanted Pak to go drink
with him. Pak said no and tried to leave the car. Ortiz pushed Pak back
into his car, got in, and drove off towards the North Shore. Pak told Ortiz
she needed to use the restroom, thinking that she could use the opportunity
to escape. Ortiz pulled over at Kenny's restaurant. He took Pak's purse,
locked it in his car trunk, followed Pak to the restaurant, and waited
outside so she could not escape. When Pak came out and asked for her purse
back, Ortiz said no and became angry.
Pak testified that after Ortiz
pushed her back in the car, he began hitting her and pulling her hair as
he drove the car up Likelike Highway to the mountains. Ortiz's car began
to have problems, and he pulled off the road. Pak tried to run away, but
Ortiz put her back in the car and hit her, choked her, and pulled her hair.
Ortiz turned the car around and headed toward Wahiawa. Ortiz's car was
still having problems so he pulled over at his son's apartment in Wahiawa,
where Pak again tried to make a second escape. Ortiz chased after Pak,
pushed her back in the car, hit her, and slammed the car door on her right
ankle. Pak was screaming and crying. Ortiz then took Pak out of the car,
hit her in the back, and forced her to walk to into his son's apartment.
Once in the apartment, Ortiz pushed Pak into the bathroom and continued
to hit her, grabbed her hair, threw her to the floor, threatened to kill
her, bit her face and nose, urinated on her head and face, and put a knife
up to her face. Eventually Ortiz passed out and Pak finally escaped.
Ortiz was arrested and charged
with Kidnapping (HRS § 707-720(1)(e)) (Count 1), Terroristic Threatening
in the First Degree (HRS § 707-716(1)(d)) (Count 2), Theft in the
Second Degree (HRS § 708-831(1)(a)) (Count 3), and Attempted Assault
in the First Degree (HRS §§ 705-500 and 707-710) (Count 4).
On August 9, 1999, at 8:47 a.m.,
prior to the start of Ortiz's jury trial, the circuit court heard motions
in limine, including Ortiz's objection to the assignment of a district
court judge presiding over his felony trial. Ortiz unsuccessfully argued
he had a constitutional and statutory right to have a circuit court judge
preside over his felony trial.
The jury's voir dire oath was
administered at 9:50 a.m. At 11:07 a.m., after jury selection had started,
Ortiz filed a Motion in Limine to Dismiss Indictment with Prejudice Because
of Substantial Failure to Comply with Chapter 612, Hawaii Revised Statutes.
After the noon recess, the court noted at 1:30 p.m. that it had received
Ortiz's motion to dismiss after jury selection had started. The court ruled
it would not hear the motion because "it [was] extremely untimely." Ortiz's
counsel argued that the basis for the motion only arose after he had looked
at the jury venire questionnaire and then had a question as to "whether
or not [the jury venire] really [was] a cross-section." The court reiterated
it would not hear the motion. At 3:37 p.m., the trial oath was administered
to the selected trial jurors.
The trial proceeded on August
10, 12, 13, and 16, 1999. During cross-examination, Pak testified that
she had met with a prosecutor and Cindy Keller (Keller) (a victim counselor
from the prosecutor's office), who interviewed Pak about what had happened
in this case. Keller was taking notes as Pak spoke. Pak believed a tape
recording was made of this interview.
When asked by Ortiz's counsel
if she had reviewed her statement made to the prosecutor and Keller, Pak
answered yes. Ortiz's counsel then moved for the production of Pak's interview
with the prosecutor and Keller pursuant to Hawaii Rules of Penal Procedure
(HRPP) Rule 16. The State responded that the taped conversation with Pak
was a "prosecutorial work product." The State added that the taped interview
was never transcribed and Pak never listened to the tape recording. The
State argued that Pak misunderstood Ortiz's counsel's question. The only
transcript available and provided to Pak was her preliminary hearing transcript.
Pak was also provided statements she gave to Detective Woo and Officer
Cagulada. Pak was never provided with her recorded interview with the prosecutor
and Keller. The circuit court denied Ortiz's counsel's request to listen
to the taped interview or have the court review the tape in camera.
The State rested after Pak's testimony, and the court denied Ortiz's motion
for judgment of acquittal.
II. STANDARDS OF REVIEW A. Questions of Law
The determination as to whether
a district court judge was authorized to sit as a circuit court judge at
a felony trial is a question of law which we review de novo under the right/
wrong standard. State v. Wilson, 92 Hawaii 45, 48, 987 P.2d 268,
271 (1999).
B. Questions of Fact
The findings of fact in the circuit
court's pretrial rulings (denying Ortiz's motions to dismiss and compel
evidence) are reviewed according to the clearly erroneous standard.
A finding of fact is clearly erroneous
when (1) the record lacks substantial evidence to support the finding,
or (2) despite substantial evidence in support of the finding, the appellate
court is nonetheless left with a definite and firm conviction that a mistake
has been made.
Id. (quoting State
v. Okumura, 78 Hawaii 383, 392, 894 P.2d 80, 89 (1995)).
C. Ineffective Assistance
We review Ortiz's claim that
his trial counsel was ineffective using the following analysis:
When an ineffective assistance of counsel
claim is raised, the question is: "When viewed as a whole, was the assistance
provided to the defendant 'within the range of competence demanded of attorneys
in criminal cases?'" Additionally,
the defendant has the burden of establishing
ineffective assistance of counsel and must meet the following two-part
test: 1) that there were specific errors or omissions reflecting counsel's
lack of skill, judgment, or diligence; and 2) that such errors or omissions
resulted in either the withdrawal or substantial impairment of a potentially
meritorious defense.
State v. Janto, 92 Hawaii
19, 31, 986 P.2d 306, 318 (1999) (quoting State v. Edwards, 81 Hawaii
293, 300, 916 P.2d 703, 710 (1996)).
D. Harmless Error
Errors made by the trial court are reviewed under a "harmless beyond
a reasonable doubt" analysis. State v. Chun, 93 Hawaii 389, 393,
4 P.3d 523, 527 (2000). "In applying the 'harmless beyond a reasonable
doubt' standard, the court is required to examine the record and determine
whether there is a reasonable possibility that the error complained of
might have contributed to the conviction." Id. (brackets omitted)
(quoting State v. Malufau, 80 Hawaii 126, 131, 906 P.2d 612, 617
(1995)).
III. DISCUSSION A. The Circuit Court Did Not Err in Refusing to Dismiss Charges Against
Ortiz.
The circuit court refused to hear Ortiz's motion to dismiss charges
against him because the motion was "extremely untimely." Ortiz contends
the circuit court erred in not hearing his motion because it involved substantial
constitutional issues regarding a fair and impartial jury composed of a
"cross-section" of the community. In his motion, Ortiz challenged the authority
of the persons compiling and the methods used in compiling the master list
and/or master jury wheel, and the authority of the persons and methods
used to select jurors from those lists.
The Hawaii Supreme Court has held:
The selection of a jury from a representative
cross-section of the community is an essential component of the right to
an impartial jury guaranteed by the sixth amendment to the United States
Constitution[.]
In order to establish a prima facie violation
of the fair-cross-section requirement, the defendant must show (1) that
the group alleged to be excluded is a "distinctive" group in the community;
(2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due
to systematic exclusion of the group in the jury- selection process.
State v. Richie, 88 Hawaii
19, 41, 960 P.2d 1227, 1249 (1998) (citations omitted) (quoting Duren
v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, (1979)).
Hawaii Revised Statutes §
612-23 (1993) ("Challenging compliance with selection procedures") provides
"the exclusive means by which a person accused of a crime . . . may challenge
a jury on the ground that the jury was not selected in conformity with
[Chapter 612]." HRS § 612-23(c). To obtain relief under
HRS § 612-23, the moving party must show substantial failure to comply
with the law and resulting prejudice. State v. Villeza, 85 Haw.
258, 265, 942 P.2d 522, 529 (1997).
A motion to challenge the composition of a trial jury under Chapter
612 must be made "before the trial jury is sworn to try the case." HRS
§ 612-23(a). It must be made "[p]romptly after the moving party discovered
or by the exercise of diligence could have discovered the grounds therefor."
Id. Ortiz filed his motion at 11:07 a.m. on August 9, 1999. The
jury pool's voir dire oath was administered that day at 9:50 a.m.,
and the selected jurors' trial oath was administered the same day
at 3:37 p.m. Ortiz's motion appears to have been timely and should have
been heard by the circuit court.
However, Ortiz's motion made no showing of prejudice resulting from
the alleged substantial failure of judiciary personnel to comply with HRS
Chapter 612. (See discussion infra.) Therefore, the circuit
court's refusal to hear Ortiz's motion was harmless error. Chun,
93 Hawaii at 393, 4 P.3d at 527.
Ortiz argues that there was an improper delegation of the duty to compile
the "master list" pursuant to HRS § 612-11. Hawaii Revised Statutes
§ 612-11 (1993) states in relevant part:
§612-11
Master list. (a) Each year the clerk for each circuit shall
compile a master list. The master list shall consist of all voter registration
lists for the circuit, which shall be supplemented with names from other
lists of persons resident therein such as lists of taxpayers and drivers'
licenses. . . . Each person's name shall appear only once on the master
list. [Emphasis added.]
Frieda Baker (Baker), the supervisor
of the jury pool office (JPO) and a clerk for the First Circuit Court,
testified in an unrelated matter (6) that
a master wheel is created by using driver license, voter registration,
and taxpayer lists that are compiled "from the various departments" and
then submitted to the Judiciary's telecommunications department (T.I.S.D.),
part of the Judiciary's Administrative Director's Office. T.I.S.D. eliminates
duplicate names. The delegation by Baker of part of her duty to T.I.S.D.
is not a "substantial failure to comply" with HRS § 612-23(b) and
does not result in the systematic exclusion of a distinctive group that
would lead to selection of a jury that was comprised of an unfair or unreasonable
cross-section of the community.
Ortiz argues that the voter lists from the state Office of Hawaiian
Affairs (OHA) were not included in the master list for jury selection,
allegedly violating HRS § 612-11. Ortiz claims this violation involves
"substantial issues of a fair and impartial jury pool from which the jury
in this case was chosen."
Hawaii Revised Statutes § 13D-3 ("Qualifications of voters; registration"),
pertaining to the Office of Hawaiian Affairs, was amended in 1985 to add
subsection (e). Hawaii Revised Statutes § 13D-3(e) (1993) expressly
provides: §13D-3
Qualifications of voters; registration.
The 1985 amendment addressed
the omission of a small group of OHA registered voters from the general
voter registration list:
Section
13D-3. The proposed amendment seeks to "grandfather" into the general
county register those persons registered to vote only for the Office of
Hawaii [Hawaii] Affairs ("OHA") and who are not currently registered to
vote for other state offices. After the inception of OHA, separate voter
registration affidavits were required: one for the regular elections and
one for OHA. However, before the 1982 elections, the law was changed requiring
any registration or re-registration of OHA voters to be reflected in the
general county register. In other words, the OHA-only category was eliminated
for the 1982 elections.
However, there are still some 600 OHA-only
voters statewide. Your Committee is in accord with the consolidation of
this group into the general register and the elimination of this category.
Sen. Stand. Comm. Rep. No. 820,
in 1985 Senate Journal, at 1240. "This modification [adding section (e)]
would facilitate the record-keeping and the general administration of elections
by eliminating this category of voters." Hse. Stand. Comm. Rep. No. 435
¶(9), in 1985 House Journal, at 1191.
All names appearing on the OHA list were included on the general voter
registration list and, therefore, on the "master list" for the jury pool
at the time Ortiz's jury was selected in 1999. Ortiz's argument ignores
HRS § 13D-3.
Ortiz makes other claims of substantial noncompliance with HRS Chapter
612: improperly delegating duties, failing to obtain court orders authorizing
such delegations, failing randomization processes, failing to summon jurors
through the Chief of Police or bailiff, and defectively excusing or deferring
jurors without delivering such requests to the proper judge. Despite these
claims, Ortiz makes no showing that these claimed acts of non-compliance
resulted in the exclusion of a distinct group of people from the jury pool
or that any of his claims, if true, would result in "the representation
of [a] group in venires from which juries are selected [that] is not fair
and reasonable in relation to the number of such persons in the community[,]
and . . . that this underrepresentation is due to systematic exclusion
of the group in the jury-selection process." Ortiz fails to show any resulting
prejudice from his claims of substantial noncompliance. Because Ortiz's
motion to dismiss the charges against him failed to offer proof of any
resulting prejudice, the circuit court's refusal to hear the motion was
harmless error. State v. Chun, supra.
B. Ortiz's Trial Counsel Was Not Ineffective.
When an ineffective assistance of counsel claim is made, the defendant
has the burden of establishing "that there were specific errors or omissions
reflecting counsel's lack of skill, judgment, or diligence; and . . . that
such errors or omissions resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense." Janto, 92 Hawaii
at 31, 986 P.2d at 318. Ortiz contends that if his trial counsel did not
file the motion to dismiss the charges against him in a timely manner,
his counsel was ineffective. We conclude that Ortiz's trial counsel timely
filed the motion to dismiss (see discussion p. 9, supra).
C. The District Court Judge Properly Presided over Ortiz's Circuit
Court Criminal Proceeding.
Article VI, section 2 of the Hawaii Constitution provides that "[t]he
supreme court shall consist of a chief justice and four associate justices.
The chief justice may assign a judge or judges of the . . . district court
to serve temporarily on the circuit court." On October 29, 1996, the Chief
Justice of the Hawaii Supreme Court issued the following order entitled
"Assignment of District and District Family Court Judges":
Pursuant to article VI, §§ 2 and 6 of the Constitution of
the State of Hawaii, I, Ronald T. Y. Moon, Chief Justice of the Supreme
Court of the State of Hawaii, do This order shall also apply to any judge who may hereinafter be appointed
and qualified as a district or district family judge of the First, Second,
Third, or Fifth Judicial Circuit and shall be effective immediately upon
his or her signing of the oath of office. [Emphasis added.] By this order, the Chief Justice
assigned all district court judges of the First Circuit to serve temporarily,
as needed, as circuit court judges when so assigned. Judge Fong was so
assigned on July 27, 1999. Judge Fong properly presided over this case
as an acting circuit court judge.
D. The Prosecutor's Recorded Statement from Pak and the Victim Counselor's
Notes Were Not Discoverable.
Hawaii Rules of Penal Procedure, Rule 16(b) provides in relevant part:
Rule
16. DISCOVERY.
As a recording made by the prosecutor,
Pak's interview with the victim counselor from the prosecutor's office
(Keller) would be immune from discovery pursuant to HRPP Rules 16(b)(1)(i)
and 16(b)(3)(ii). See alsoState
v. Rapozo, 2 Haw. App. 587, 591 n.6, 637 P.2d 786, 789 n.6 (1981)
(oral statement of witness recorded by prosecutor does not have to be disclosed).
Because Keller was not a witness in this case, her notes were not discoverable.
HRPP 16(b)(1)(i).
The circuit court did not err in denying Ortiz's motion to compel discovery
of Pak's recorded interview and Keller's notes of the same.
IV. CONCLUSION The November 15, 1999, judgment of the circuit court is affirmed.
DATED: Honolulu, Hawaii, April 11, 2001.
On the briefs:
David J. Gierlach
Bryan K. Sano,
1. Ortiz
was charged with Kidnapping (HRS § 707-720(1)(e) (1993)), but found
guilty of the included offense.
Ortiz
was charged with Terroristic Threatening in the First Degree (HRS §
707-716(1)(d) (1993)), but found guilty of the included offense.
Ortiz
was charged with Attempted Assault in the First Degree (HRS §§
705-500 & 707-710 (1993)), but found guilty of the included offense.
Although
Ortiz argues that his indictment should have been dismissed, Ortiz was
charged by complaint, not indictment (there was no grand jury).
In arguing
a violation of HRS Chapter 612, Ortiz uses the words "State" and "judiciary"
to mean the same entity. To avoid confusion, we will use "judiciary personnel"
throughout.
6. Frieda Baker
testified in a separate circuit court case, State
v. Tyni, Cr. No 97-1789. The transcripts of her testimony regarding
Chapter 612 became part of the record below because Ortiz's trial counsel
attached them to the memorandum in support of the motion to dismiss for
substantial failure to comply with Chapter 612. The State cites to the
transcripts, noting that "[a]lthough these transcripts from February and
March 1998 were never admitted into evidence, for the sake of argument
they will be treated as offers of proof. RA at 219, [253]."
. . . .
(e) The clerk of each county shall amend
the general county register to include therein any person, who on November
6, 1984, was registered to vote only for members of the board of trustees,
to hereinafter be registered to vote in all elections held in the State.
. . . .
(b) Disclosure by the Prosecution.
(1) Disclosure
of Matters Within Prosecution's Possession. The prosecutor shall disclose
to the defendant or the defendant's attorney the following material and
information within the prosecutor's possession or control:
(i) the names and last known addresses
of persons whom the prosecutor intends to call as witnesses in the
presentation of the evidence in chief, together with any relevant written
or recorded statements, provided that statements recorded by the prosecutor
shall not be subject to disclosure[.]
. . . .
(3) Definition.
The term "statement" as used in subsection (b)(1)(i) and (c)(2)(i) of his
rule means:
(i) a written statement made by the witness
and signed or otherwise adopted or approved by the witness; or
(ii) a stenographic, mechanical, electrical
or other recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement made by the witness and recorded
contemporaneously with the making of such oral statement. [Emphasis added.]
for defendant-appellant.
Deputy Prosecuting Attorney,
City and County of Honolulu,
for plaintiff-appellee.