State v. James

1

STATE OF HAWAI'I, Plaintiff-Appellant, v. DYLAN RIVER JAMES, Defendant-Appellee

No. CAAP-22-0000260

Intermediate Court of Appeals of Hawaii

April 20, 2023

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO 5CPC-20-0000051)

Tracy Murakami, Deputy Prosecuting Attorney for Plaintiff-Appellant.

David M. Hayakawa, for Defendant-Appellee.

Hiraoka, Presiding Judge, Nakasone and Chan, JJ.

SUMMARY DISPOSITION ORDER

Plaintiff-Appellant State of Hawai'i (State) appeals from the March 28, 2022 Findings of Fact, Conclusions of Law and Order (FOFs/COLs) Granting Motion to Suppress Text Messages (Order Granting Motion to Suppress); and the April 4, 2022 Order Denying State's Motion to Reconsider Ruling on Motion to Suppress Text Messages (Order Denying Reconsideration),^[1] both filed by the Circuit Court of the Fifth Circuit (Circuit Court).^[2]In the underlying case Defendant-Appellee Dylan River James (James) was charged with five counts of first-degree sexual assault against the complainant (CW) that occurred on July 2, 2015.

This appeal concerns the suppression of text messages that were exchanged between James and CW, in which James made admissions that he had sex with CW. On appeal, the State contends that the Circuit Court: (1) erred by finding in FOF 7 that CW, "induced [James] via text message to admit that he had sexually assaulted her"; (2) that "[e]ven assuming that [CW] was in effect a government agent when she texted [James],"^[3] erred by concluding in COL 4 that the detectives violated James's Miranda rights where James was "not in police custody"; and (3) erred by ultimately granting the suppression of the text messages.^[4]

Upon review of the record on appeal and relevant legal authorities, giving due consideration to the issues raised and arguments advanced by the parties, we resolve the points of error as follows, and affirm.

On December 21, 2021, James filed a Motion to Suppress Text Messages (Motion to Suppress) requesting that the July 2, 2015^[5] text messages between James and CW be suppressed on grounds that CW, as a government agent, violated James's right to privacy and "induce[d]" James to respond, and that the detectives were required to obtain a waiver of those rights prior to CW contacting James. James attached the following exhibits to the Motion to Suppress: (1) a partial transcript of the detectives' July 2, 2015 interview of CW; (2) July 2, 2015 text messages between CW and James; and (3) a partial transcript of CW's testimony at the March 11, 2020 grand jury proceeding.

On February 4, 2022, the State filed its opposition to the Motion to Suppress (Opposition), in which it argued, inter alia, that even if CW was a government agent, James was not "subjected to a search and seizure, nor a custodial interrogation," and there was no "active deception or attempt to circumvent [James]'s rights."

At the February 24, 2022 hearing on the Motion to Suppress, no witnesses were called to testify. While the exhibits attached to the Motion to Suppress were not entered into evidence at the hearing, it is undisputed that the Circuit Court considered the exhibits as constituting the evidentiary record for the motion, and the parties do not contend otherwise.^[6]This record reflects the following.

On July 2, 2015, Kaua'i Police Department detectives Ray M. Takekawa (Detective Takekawa) and Darren Rose (Detective Rose) (collectively, Detectives) interviewed CW, who alleged that James had sexually assaulted her. That same day, CW also had an exam done by a nurse. After the interview, the Detectives instructed CW to contact James, and CW asked the Detectives, "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 - [sic]." CW attempted to call James twice, but James did not pick up. Detective Takekawa stated: "You want to try a text?" Detective Rose stated: "Give it a few minutes, about five minutes, and we'll try one more time." CW testified before the grand jury that at the "direction of Detective Takekawa," she texted James, and that "the detective told me just to try to get some sort of comment - comment on what had happened out of him, so I texted him that I was thinking about the night before." The following text messages were exchanged between CW and James:^[7]

[CW:] Sup,^[8] just thinking about the other night haha.

[James:] Lol,^[9] that was fun [(winking face emoji)^[10] [CW:] Haha what part, the bonfire? Lol

[James:] Yeah, that too And the skinny dippin [sic] And something else crazy happened, tryin [sic] to remember wat [sic] it was...

[CW:] Hahahah hmmm... Seems like there were two other things... Got a little rough [(winking face emoji)] does that ring a bell?

[James:] Hmmm its kind of coming back to me... I do remember it being very rough [(smirking face emoji)]

[CW:] Tell me your favorite part

[James:] How bout [sic] I show you some time soon [(winking emoji)]

[CW:] Hahaha not too soon though, I'm still sore lol Just tell me your favorite part in the mean time to tide me over [(winking face with tongue emoji)]

[James:] Sore!? That was just a warm up! And it was that you did what I told you to do... What was yours?

[CW:] The semi public locations haha. Never done that in a hamock [sic] before lol. I mean mostly sore from the part where I was screaming and trying to crawl away... You really don't take no for an answer lol. So idk^[11] I feel kinda wierd [sic] about that part.

[James:] Woah! I couldnt [sic] tell if you were serious or no [sic] to be honest... Thought it was some kind of 'role playin' or something? Sorry about that, i [sic] was a lil^[12]confused about that as well [(flushed face emoji)]

Not*

[CW:] Wait during which part?

[James:] When you were screaming and crawling away by the lifeguard tower... Couldnt [sic] tell if you were serious or wat [sic] was goin.^[13] [sic] I was pretty confused... And sorry to put you in that situation, wasnt [sic] my intention at the time [(flushed face emoji)]

(Footnotes added).

At the conclusion of the hearing, the Circuit Court orally ruled that CW was acting as a "government agent" and that James's rights were violated:

So in this case the Court finds that the police actively recruited the complaining witness. The Court also finds that the police directed the complaining witness. And part of the reason for that is they were telling her what to do, including when the phone -- when phone calls weren't answered, why don't you send a text and that type of detailed direction. The complaining witness didn't receive payment for services.

So when you look at the factors, the three remaining factors from Boynton -- because I'm taking out the motivation factor pursuant to the cases that the Court read -- the Court finds that the complaining witness was acting as a government agent. And so because the complaining witness was acting as a government agent, then there were a violation of the rights of Mr. James.

And so the Court is going to grant the motion to suppress text messages. On March 28, 2022, the Circuit Court filed its FOFs/COLs, in which the Circuit Court made the following pertinent FOFs and COLs:

FINDINGS OF FACT

1. The incident in this case is alleged to have occurred on July 2, 2015.

2. On July 2, 2015, commencing at 5:55 p.m., Kauai Police Department Detective Ray M. Takekawa and Detective Darren Rose conducted an interview of the [CW].

3. At the conclusion of the interview, Detective Takekawa and Detective Rose directed CW to contact [James] and to discuss the incident upon which this case is based with him.

4. In the transcript of a recording designated "[CW] Pretext," CW is recorded as stating, "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 -"

5. James did not answer CW's first call. In the transcript of a recording designated "[CW] Pretext Call 2," CW calls [James]'s phone and when the voicemail comes on CW asks the detectives, "Do I leave a message?" Detective Takekawa responded, "You want to try a text?" and Detective Rose adds, "Give it a few minutes, about five minutes, and we'll try one more time."

6. In the transcript of a recording designated as "[CW] Pretext 2," CW makes another call to James and the voicemail again comes on.

7. Subsequently CW contacted [James] via text message. Pursuant to the detectives' directions when she attempted to call [James], CW induced [James] to acknowledge that they had sex and that it was "rough" as well as other statements about the incident.

8. At the Grand Jury CW was asked by the deputy prosecuting attorney "And after the incident, did you text message [James]?" CW responded "Yes, at the direction of Detective Takikawa [sic]." CW then went on to state "Well, the detective told me just to try to get some sort of comment -comment on what had happened out of him, so I texted him that I was thinking about the night before."

CONCLUSIONS OF LAW ....

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.2d at 302. In particular, CW was actively recruited by the detectives to call and then text [James]. Further, CW was directed by the detectives to text [James] and to induce him to discuss the incident. After CW was unable to reach [James] via a phone call, the detectives asked CW if she wanted to text [James]. The detectives then told CW to induce James to admit that they had sex. CW did not receive compensation from the detectives.

4. At the

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