State v. Ferguson

STATE OF HAWAI'I, Plaintiff-Appellee, v. ETHAN FERGUSON, Defendant-Appellant

NO. CAAP-17-0000414

INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

February 28, 2020

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CR. NO. 16-1-0030)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Fujise and Chan, JJ.)

Defendant-Appellant Ethan Ferguson (Ferguson) appeals from the April 28, 2017 Judgment of Conviction and Sentence and the May 4, 2017 "Order Denying Defendant's Motion for New Trial or, in the Alternative Motion to Extend Deadline to File a Motion for New Trial; Motion for In-Court Examination to Discharged Jurors; Motion for Leave to Speak to Discharged Jurors" entered by the Circuit Court of the Third Circuit (Circuit Court).¹ After a jury trial, the Circuit Court convicted Ferguson of two counts of Sexual Assault in the Second Degree (Counts 1 and 2) in violation of Hawaii Revised Statutes (HRS) § 707-731(1)(a) (2014),² and three counts of Sexual Assault in the Fourth Degree (Counts 3, 4, and 5) in violation of HRS § 707-733(1)(a) (2014).³Ferguson was sentenced to a ten-year term of incarceration in each of Counts 1 and 2, and a one-year term of incarceration in each of Counts 3, 4, and 5, all terms to run concurrently.

On appeal, Ferguson contends: (1) the Circuit Court abused its discretion by denying his Motion to Dismiss Indictment for Prosecutorial Misconduct; (2) the Circuit Court erred by granting the State's Motion to Determine Voluntariness of Statement(s) Defendant Made to the Police; (3) Ferguson received ineffective assistance of trial counsel for failure to object to hearsay evidence and for improper redaction of the Complaining Witness's (CW) statement; (4) the Circuit Court erred by denying his Motion for Judgment of Acquittal because there was insufficient evidence presented; and (5) the Circuit Court abused its discretion by denying his Motion for a New Trial where there was improper influence on the jury.

After carefully reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Ferguson's issues as follows and affirm the Circuit Court's Judgment.

1. Ferguson argues the Circuit Court abused its discretion by denying his Motion to Dismiss Indictment for Prosecutorial Misconduct because the State failed to correct or clarify a deliberate misstatement of material fact by the CW during her Grand Jury testimony.⁴ Ferguson asserts the Grand Jury was misled because the DPA was aware that CW had "smoke[d] marijuana at the time of the incident."

The Hawai'i Supreme Court has held that prosecutorial misconduct before the grand jury must be "extreme and clearly infringe[] upon the jury's decision-making function" to warrantdismissal of the indictment. State v. Pulawa, 62 Haw. 209, 218, 614 P.2d 373, 378 (1980). It is the defendant's burden to prove such misconduct. State v. Griffin, 126 Hawai'i 40, 53, 266 P.3d 448, 461 (App. 2011).

The Circuit Court found no evidence to support Ferguson's allegation that CW admitted being under the influence of marijuana when the incident occurred and Ferguson does not contest this finding. Moreover, the court also found and it is uncontested on appeal that CW's grand jury testimony that she did not smoke marijuana on the day of the incident was ambiguous. We agree with the Circuit Court that Ferguson failed to present evidence of extreme and clear infringement of the grand jury's decision-making function. Therefore, no abuse of the Circuit Court's discretion in denying Ferguson's motion to dismiss has been shown. See State v. Akau, 118 Hawai'i 44, 51, 185 P.3d 229, 236 (2008).

2. Ferguson claims that the Circuit Court erred in admitting two groups of utterances⁵ made to Detective Fetuutuunai Amuimuia (Det. Amuimuia) in the course of his arrest and booking because they were the product of custodial interrogation without the protection of Miranda warnings.⁶

The parties agree that no Miranda warnings had been given before the subject statements were made and that Ferguson was in custody.

"[I]nterrogation" under Miranda refers to (1) any words, actions, or practice on the part of the police, not only express questioning, (2) other than those normally attendant to arrest and custody, and (3) that the police should know is reasonably likely to invoke an incriminating response.

State v. Trinque, 140 Hawai'i 269, 277, 400 P.3d 470, 478 (2017); see also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("the term 'interrogation' under Miranda refers not only to express questioning, but also to 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." (footnotes omitted)). Informing an arrestee of the charge is normally attendant to arrest, and, thus, outside the Miranda definition of interrogation. See United States v. Crisco, 725 F.2d 1228, 1231-32 (1984) (Even if Crisco was in custody, agent's explanation of circumstances of arrest warrant may be considered normally attendant to arrest and custody and not interrogation.); HRS § 803(6)(a) (2014). The supreme court has not required specificity as to the charge upon arrest, see State v. Bunker, 67 Haw. 174, 176, 681 P.2d 984, 987 (1984) (arrest for "investigation of a shooting incident" sufficiently informative as to the cause of arrest), and we do not agree that describing the crime as an assault would imply a lesser offense than a sex assault. Both crimes run the gamut: an assault could be a class B felony; a sex assault could be a misdemeanor. See HRS §§ 707-710, -733 (2014).

Furthermore, Statement I is not an incriminating response. While an "'incriminating response' refers to both inculpatory and exculpatory responses[,]" Trinque, 140 Hawai'i at 277, 400 P.3d at 478 (citation omitted), there was nothing inculpatory or exculpatory about Ferguson complaining about being handcuffed behind his back and stating he would conduct the arrest differently. Thus, the detectives did not interrogate Ferguson for Miranda purposes.

Nor has Ferguson shown Statement I was not voluntarily made. Relying on State v. Kelekolio, 74 Haw. 479, 511, 849 P.2d 58, 73 (1993), Ferguson claims calling the reason for his arrest an assault rather than a sexual assault was coercive per se in that it was "of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt" and lulled him into letting his guard downand to speak to the officers. Again, Statement I was neither an untrue statement nor was it a confession of guilt, but was a complaint about how the officers were effecting the arrest. Given the circumstances, we reject Ferguson's argument that merely telling him he was being arrested for "assault" caused him to make Statement I.

Statement I was properly admitted.

As to Ferguson's Statement II, made in response to Det. Amuimuia's later specification of the charges against him, he again relies on Kelekolio, 74 Haw. at 511, 849 P.2d at 73, arguing that initially calling the charge an "assault" was coercive per se. However, the Kelekolio court stated its rule would be applied on a case-by-case basis. Id. In this case, Ferguson's statements were unlike the examples of extrinsic falsehoods given by the Kelekolio court, which mostly involve deception about the ability of the police to limit the legal consequences of a confession. Id. 74 Haw. at 512-13, 849 P.2d at 73-74; see also 3 Ringel, Searches and Seizures, Arrests and Confessions, § 25:6, at 25-22 to -41 (2d ed. 2019). As the Kelekolio court acknowledged, "[m]ost commonly, the police tell a suspect they have found some highly incriminating evidence which renders futile any attempt by the suspect to dissemble further. Courts have uniformly accepted this technique, apparently on the view that an innocent person would not be induced to confess by such police deception." Kelekolio, 74 Haw. at 510, 849 P.2d at 73. Nothing about informing a suspect about the sexual nature of the assault charge against him would induce an innocent person to confess. Thus, Det. Amuimuia's statement was not a coercive extrinsic falsehood and Statement II was properly admitted.⁷

3. Ferguson asserts he received ineffective assistance of counsel because trial counsel: (a) failed to object to inadmissible hearsay; and (b) entered CW's obviously redacted statement into evidence.

"In any claim of ineffective assistance of trial counsel, the burden is upon the defendant to demonstrate that, in light of all the circumstances, counsel's performance was not objectively reasonable -- i.e., within the range of competence demanded of attorneys in criminal cases." Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 976 (1993) (citation and internal quotation marks omitted).

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. To satisfy this second prong, the defendant needs to show a possible impairment, rather than a probable impairment, of a potentially meritorious defense. A defendant need not prove actual prejudice.

State v. Wakisaka, 102 Hawai'i 504, 514, 78 P.3d 317, 327 (2003) (citations, footnote, and internal quotation marks omitted). Furthermore, "[s]pecific actions or omissions alleged to be error but which had an obvious tactical basis for benefitting the defendant's case will not be subject to further scrutiny." Briones, 74 Haw. at 462-63, 848 P.2d at 976.

a. Ferguson argues that trial counsel provided ineffective assistance by...