State v. James

153 Haw. 503

541 P.3d 1266

STATE of Hawai‘i, Petitioner/Plaintiff-Appellant,

v.Dylan River JAMES, Respondent/Defendant-Appellee.

SCWC-22-0000260

Supreme Court of Hawai‘i.

January 3, 2024

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-22-0000260; CASE NO. 5CPC-20-0000051)

Tracy J. Murakami, for petitioner

Christian G. Enright, for respondent

RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., AND CIRCUIT JUDGE CATALDO AND CIRCUIT JUDGE MALINAO, ASSIGNED BY REASON OF VACANCIES

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

The State of Hawai‘i ("the State") appeals a pretrial suppression order of the Circuit Court of the Fifth Circuit ("circuit court"). The circuit court¹ suppressed text message evidence in the sexual assault prosecution of defendant Dylan River James ("James"). During an interview of the complaining witness ("CW"), police detectives directed her to contact James to discuss the incident. CW tried to call James while with the officers, but James did not pick up. CW later texted James, who responded; James apparently made admissions during the text conversation with CW.

The circuit court granted James’s motion to suppress the text messages, reasoning (1) CW was acting as a government agent when she texted James; therefore (2)(a) James’s rights against self-incrimination under the federal and Hawai‘i constitutions were violated because no Miranda warnings were given; and (b) James’s rights to counsel under the federal and Hawai‘i constitutions were violated because he was not advised of his right to counsel. The circuit court also denied the State’s motion for reconsideration.

The State appealed and the ICA affirmed. State v. James, No. CAAP-22-0000260, 2023 WL 3017974 (Haw. App. Apr. 20, 2023) (SDO). The ICA held that pursuant to the bright-line rule of State v. Ketchum, 97 Hawai‘i 107, 34 P.3d 1006 (2001), Miranda warnings were required before James was "interrogated" because probable cause existed at the time CW texted James. James, 2023 WL 3017974, at *6 (citing State v. Hewitt, 153 Hawai‘i 33, 36, 526 P.3d 558, 561 (2023)). The ICA did not address the right to counsel issue. 2023 WL 3017974, at *1 n.4. The ICA also held it lacked appellate jurisdiction over the circuit court’s denial of the State’s motion for reconsideration. 2023 WL 3017974, at *1 n.1.

The circuit court and ICA erred. Under the Fifth Amendment to the United States Constitution and article I, section 10 of the Hawai‘i Constitution, Miranda warnings are only required for "custodial" interrogations. Although CW was acting as a government agent, James was not "in custody" when there was no stop or detention or other deprivation of his freedom of action by law enforcement.

Therefore, there was no custodial interrogation requiring Miranda warnings and advisement of a right to counsel. The circuit court also erred by suppressing the texts based on James’s Sixth Amendment and Hawai‘i Constitution article I, section 14 right to counsel. At the time of the text exchange, adversarial judicial criminal proceedings had yet to be initiated against James. Therefore, his right to counsel had not attached.

We also hold that the ICA erred by concluding it did not have appellate jurisdiction over the circuit court’s order denying the State’s motion for reconsideration. The State’s right to appeal from an order granting a defendant’s motion to suppress under Hawai‘i Revised Statutes ("HRS") § 641-13(7) (2016) "encompasses a right" to appeal from a related Order denying the State’s motion for reconsideration. See State v. Bohannon, 102 Hawai‘i 228, 234, 74 P.3d 980, 986 (2003).

Hence, we vacate the ICA’s May 31, 2023 judgment on appeal as well as the circuit court’s March 28, 2022 findings of fact, conclusions of law and order granting motion to suppress text messages ("FOF/COL/Order") and April 4, 2022 order denying the State’s motion for reconsideration. We remand to the circuit court for further proceedings consistent with this opinion.

II. Background

A. Factual background

On July 2, 2015, James allegedly sexually assaulted CW. Later that day, Kauai Police Department detectives Ray M. Takekawa ("Detective Takekawa") and Darren Rose ("Detective Rose") (together, "the detectives") interviewed CW.

At the end of the interview, the detectives directed CW to contact James to discuss the alleged sexual assault. CW was recorded say- ing to the detectives, "Wait. So, like, first I should just, like, get him to admit that we, like, had sex and then after that be like, well, I was like –" CW then tried to call James, but he did not pick up. CW asked the detectives, "Do I leave a message?" Detective Takekawa responded, "You want to try a text?" and Detective Rose said, "Give it a few minutes, about five minutes, and we’ll try one more time." CW tried to call James a second time but he did not pick up.

CW then texted James. James responded with various texts to CW about the incident. Among other things, he apparently admitted they had sex and that it was "rough."²

B. Grand jury proceedings

CW testified about the above events to a grand jury. On March 11, 2020, the grand jury returned an indictment charging James with five counts of sexual assault in the first degree in violation of HRS § 707-730(1)(a) (2014).³

C. Circuit court proceedings

1. Motion to suppress text messages

On December 21, 2021, James filed a motion to suppress the text messages between James and CW ("motion to suppress"). Defense counsel initially argued the texts should be suppressed because the Fourth Amendment to the U.S. Constitution and article I, section 7 of the Hawai‘i Constitution ensure an "individual’s legitimate expectations of privacy will not be subjected to unreasonable governmental intrusions."

Citing State v. Kahoonei, 83 Hawai‘i 124, 925 P.2d 294 (1996), James argued that, under the totality of the circumstances, CW was acting as a government agent at the time she texted James. James characterized GW’s texts as "pretext calls." "Pretext calls" are calls "made by a witness at the direction of the police to a suspect or somebody else involved in the investigation. The investigators tape-record the telephone conversation and instruct the witness on what to say. The detectives use pretext calls to gather evidence and/or incriminating statements." People v. Wahlert, 31 Cal. Rptr. 3d 603, 614 (Ct. App. 4th Div. 2005) (cleaned up). James cited the Montana Supreme Court’s opinion in State v. Stewart, 367 Mont. 503, 291 P.3d 1187, 1198 (2012). According to James, Stewart held " ‘pretext calls’ made by the complainant to the defendant at the direction of a detective had violated the defendant’s right to privacy under the Montana constitution" because they constituted state action.⁴

2. Hearing on and oral order granting James’s motion to suppress

At the February 24, 2022 hearing on the motion to suppress, the circuit court cited Kahoonei, which held that whether a private individual was acting as a government agent when effectuating a search is to be analyzed under a "totality of circumstances." 83 Hawai‘i at, 131-32, 925 P.2d at 301-02 (holding a defendant’s mother was a government agent when she. retrieved a firearm and ammunition from her son’s bedroom in an officer’s presence after an officer told her a search warrant could be obtained and a search would inevitably occur). The circuit court concluded CW was acting as a government agent, and orally granted James’s motion to suppress.

3. Order granting James’s motion to suppress

On March 28, 2022, the circuit court issued its FOF/COL/Order.

The circuit court’s conclusions of law ("COLs") were that:

3. Under the totality of the circumstances, the governmental involvement in this case was significant and extensive enough to render CW an instrumentality of the State, i.e. a government agent, when she called and texted [James]. Kahoonei, 83 Hawai‘i at 132, 925 P.3d [2d] at 302….

4. At the point when CW called and texted [James], he was the only suspect and the investigation had focused on him. If the detectives had sought to question [James] at that point they would have been required to advise him of his rights, including his right to remain silent and his right to an attorney, and obtain a waiver of those right[s] prior to proceeding with the questioning. Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] … (1966); State v. Santiago, 53 Haw. 254, 266, 492 P.2d 657, 665 (1971).

5. As CW was acting as a government agent when she called and texted [James], the actions of the detectives violated James[’s] right to an attorney under the [S]ixth [A]mendment to the U.S. Constitution and article I, section 14 of the Hawai‘i Constitution and [James’s] right to remain silent under the Fifth Amendment and article I, section 10.

Thus, although the circuit court relied on Kahoonei, which was a Fourth Amendment and article I, section 7 warrantless search case, the circuit court based its suppression ruling on alleged violations of James’s Fifth Amendment and article I, section 10 right against self-incrimination and Sixth Amendment and article I, section 14 right to counsel.

4. The State’s motion for reconsideration

On February 28, 2022, the State had filed a motion to reconsider the circuit court’s oral ruling ("motion for reconsideration"). The State argued that even if CW was acting as a State agent, the content of the text messages was admissible. It argued James had no reasonable expectation of privacy in his text message exchange with CW, even if she was acting as a State agent, so the text messages should not have been suppressed.

The State pointed out that in Graham, 70 Haw. 627, 780 P.2d 1103, this court held a recorded private conversation with the consent of one party (otherwise known as "consensual eavesdropping" or "participant monitoring") was not a constitutional violation. The State also cited to State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973), in which this court held there was no unconstitutional search or...