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State v. Phillips

Supreme Court of Hawaii

September 30, 2016

STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee,
v.
LINCOLN PHILLIPS, Respondent/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000020; CR. NO. 08-1-1430)

          Stephen K. Tsushima for petitioner.

          Randall K. Hironaka for respondent.

          McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE NISHIMURA, IN PLACE OF ACOBA, J., RECUSED, AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

          OPINION

          POLLACK, J.

         I. INTRODUCTION

         The Intermediate Court of Appeals (ICA) vacated the conviction of Lincoln Phillips for the attempted murder of his wife Tara Phillips and remanded the case for a new trial. In reaching this result, the ICA adopted an interpretation of the plain view doctrine that is contrary to this court's prior decisions and the protections and limits of the rights guaranteed under Article I, Section 7 of the Hawai'i Constitution. A proper application of these principles requires the reversal of the ICA's judgment on appeal and affirmance of the trial court's amended judgment of conviction.

         II. BACKGROUND

         A. Initial investigation

         In the early morning of September 3, 2008, police dispatch received a call from Lincoln Phillips summoning police to his home. Phillips told the operator that "when he came home he found injuries to his wife's head." Honolulu Fire Department (HFD) personnel, emergency medical technicians (EMT), and Officer Stanley Collins of the Honolulu Police Department (HPD) were the earliest first responders to arrive at Phillips' house.

         HPD Officer Collins received the dispatch at about 3:54 a.m. The officer "had no idea" of the identity of the victim or suspect. When Officer Collins arrived at the residence, he saw Phillips "in his garage area." According to Officer Collins, Phillips seemed frantic and was "motioning [him] to come forward" into the "garage area." Officer Collins understood the motioning to be "inviting me" and as an indication that "this is the place you should come, this is the place you should be."[1] Upon entering the garage, Officer Collins asked Phillips what happened. Phillips responded, "It's my wife, it's my wife, " and informed Officer Collins that his wife, Tara Phillips (Tara), was upstairs in the bedroom. While Phillips remained in the garage area, Officer Collins went upstairs and saw Tara lying on a bed being attended by members of the HFD. After spending "maybe a few seconds" upstairs, Officer Collins returned to the garage, where Phillips had remained, and Officer Collins "made contact with Phillips and tried to get him calm."

         HPD Officer Robert Frank arrived at approximately 4:03 a.m. and joined Officer Collins and Phillips in the garage. Officer Frank noted that Phillips "was sweating profusely, pacing back and forth." Phillips told the officers that "he couldn't sleep. So he got in his car, drove to the beach[] then [to] the park at the end of Fort Weaver Road, [and] stopped at 7 Eleven." When he "arrived home, [he] went upstairs and . . . found his wife bleeding from her head."

         Officer Collins "tried to get [Phillips] calm" by opening the door of Tara's vehicle and having him sit in the passenger seat. Officer Collins asked him what happened, and Phillips explained that "when he went upstairs initially he sat on the futon" and "the lights were out." "When he heard his wife having difficulty breathing that's when he turned on the lights and discovered her injuries."

         Phillips said that the garage door was closed when he drove off early that morning and open when he returned home. Phillips explained that the garage door was defective: "it would close with the remote, but it would not open with the remote." Phillips demonstrated the garage door remote to show the officers that it was defective. Phillips closed the garage door with the remote, and the officers "had to open it from the inside panel of the garage" with a wall switch.

         HPD Sergeant (Sgt.) Lloyd Keliinui arrived at Phillips' residence at approximately 4:00 a.m. Sgt. Keliinui was told by other officers that Phillips had come home and had "found out that his wife had been assaulted." Based on the information that "somebody came in" to the home, Sgt. Keliinui was concerned that there was "somebody out there unidentified, possibly roaming the neighborhood, with some kind of weapon." Sgt. Keliinui "instructed some of the initial officers to canvas the area" and to "check for possible suspects or witnesses" and evidence.

         HPD Officer John Tokunaga arrived at approximately 4:12 a.m. Sgt. Keliinui instructed him to "check the area" "in the immediate vicinity of the residence" "for possible weapons that may have been used." Sgt. Keliinui did not inform Officer Tokunaga of the general facts of the case. Officer Tokunaga did not know "what kind of possible weapons [he] was looking for." He was looking for any "possible evidence that may have been related to the victim's injuries." He was not aware of "anyone in particular [that was] a suspect." Officer Tokunaga did not find any weapon or other possible evidence that may have been related to Tara's injuries outside of the residence.

         Sometime before 4:30 a.m., Officer Tokunaga observed a hammer "on a cooler" inside the garage, "on the left side of the garage as you enter." Officer Tokunaga "believe[d] there was a spot of blood on top of the hammer, " which indicated that it was a "possible weapon." Officer Tokunaga also observed "water on the handle area of the hammer" but not on the coolers. At the time Officer Tokunaga observed the hammer, Officers Frank and Collins were also in the garage with Phillips. Officer Tokunaga informed Sgt. Keliinui and Officer Corrine Rivera about the hammer that he had found.

         During the initial investigation, Phillips' garage served as an impromptu center for the police response. Officer Collins was "going back and forth" from the garage, trying to keep Phillips "calm"; "EMS [was] arriving, and the sector sergeant [was] arriving"; and Officer Ahn was with Phillips in the garage. HPD officers "were coming in and out" of the garage, and "there was a lot of commotion going on because the garage had kind of been the central place of the investigation."

         At some point during the "initial check of the residence" by the police, Officer Frank blew his nose into a napkin and "discarded it in the garbage can" that was "in the garage."[2] Officer Frank lifted the lid of the garbage container "about 45 degrees" to discard the napkin, and observed rolled up mesh clothing among discarded food boxes inside the garbage container. The clothes were "just sitting in the garbage container, " "on the same level" of the food boxes. Officer Frank did not "disturb the contents of that trash can at all." Because the clothing "was rolled up, " Officer Frank did not notice anything unusual about the clothes. Officer Frank informed Sgt. Keliinui about the clothing "when [he] got the chance to see him."

         HPD Officer Dennis Ahn arrived at approximately 4:30 a.m. and entered the open garage where he observed Officer Collins, Sgt. Keliinui, and Phillips. Officer Collins instructed Officer Ahn to stay with Phillips, who "was the only witness at the time." Officer Ahn was assigned to watch Phillips and help him "to just remain calm, and just to stay put until a detective would come and get a statement from him." Later, Officer Ahn asked Phillips to move into the living room so that he would be more comfortable and could see Tara as she was being carried out, and because he was "obstructing the walkway between walking in the garage and into the home."

         At approximately 5:15 a.m., Officer Ahn asked Phillips to accompany him "to the Kapolei station, because a detective would like to get his statement." Officer Ahn informed Phillips "that he was not under arrest." "Phillips was very cooperative. And he said yes." Officer Ahn and Phillips arrived at the Kapolei Police Station at approximately 5:30 a.m. where Phillips was interviewed later that morning. At the end of the interview, Phillips "just want[ed] to go see [his] wife, " and he was permitted to leave the station.

         At approximately 6:05 a.m., Evidence Specialist Jasmina Eliza from the HPD Scientific Investigation Section arrived at Phillips' home. She was directed to photograph and recover the hammer. Specialist Eliza recovered the hammer at approximately 9:35 a.m. At the same time, she also recovered a man's shirt as well as a man's pants from the trash can located in the garage.

         At 12:25 p.m., HPD Detective Sheryl Sunia prepared an Affidavit in Support of a Search Warrant (Affidavit). In her Affidavit, Sunia requested a warrant allowing a search of, inter alia, Phillips' residence and car, along with receptacles, bags, and containers found within.[3]

         Upon a finding that there was probable cause to believe that "evidence of Attempted Murder in the Second Degree . . . and/or Burglary in the First Degree" was present, a district court judge issued a search warrant for Phillips' car and residence and "all closed compartments and/or containers" therein at approximately 7:45 p.m. that evening. Among other items, the warrant allowed HPD officers to search Phillips' residence for "[a] plastic garbage can, including its contents, located in the enclosed garage" as well as "all items of evidence, including, but not limited to . . . articles of clothing . . . [and] tools."

         B. Circuit Court

         On September 10, 2008, Phillips was indicted on the charge of attempted murder in the second degree in violation of Hawai'i Revised Statutes (HRS) §§ 705-500, [4] 707-701.5, [5] and 706- 656.[6] Phillips pleaded not guilty to the charge on September 15, 2008, in the Circuit Court of the First Circuit (circuit court).

         1. Motion to Suppress

         On April 24, 2009, Phillips filed a Motion to Suppress Evidence and Statements (motion).[7] Phillips sought to suppress from admission into evidence the hammer recovered from his garage and a gray "men's shirt with orange piping and gray men's shorts with blue lateral stripes, " recovered from a trash can located in his garage. Phillips asserted that the hammer and the clothing "were recovered without consent and without a warrant, " in violation of his state and federal constitutional rights.

         In his argument to the court on the motion, defense counsel acknowledged that "the hammer's in plain view, there's no dispute about that, " but argued that the HPD could not seize the hammer absent "exigent circumstances for the warrantless seizure." Regarding the clothing, defense counsel argued that "whether or not . . . [it] was discovered inadvertently or was in plain view, " there was both "a search and a seizure problem, " particularly in light of the clothing being included as a basis for the search warrant.

         The State asserted that "[h]aving invited the police into his home to investigate a possible crime, " Phillips at best only had "a diminished privacy right" and, hence, could not complain "that the police were unlawfully in his home." According to the State, it was "uncontroverted" that the hammer was discovered in plain view and that "the case law is clear, " under State v. Jenkins, 93 Hawai'i 87, 997 P.2d 13 (2000), that if "an item is in plain view, [seizure] doesn't violate a person's right[s]." The State argued that the clothes were admissible because "there was no search" when Officer Frank "opened the trash can, " threw the napkin in, and "saw the clothes" in "plain view." The State maintained that, in the alternative, even if Officer Frank's actions did constitute a search, the clothing was still admissible under the doctrine of inevitable discovery. The State further contended that even without the clothing, there was still probable cause for the search warrant because the "fact that a crime was committed in the house [was alone] enough for the search warrant."

         On December 29, 2009, the circuit court issued its "Findings of Facts, Conclusions of Law, and Order Granting in Part and Denying in Part Defendant's Motion to Suppress Evidence and Statements." Regarding the hammer, the circuit court found that when Officer Tokunaga was assigned to look for weapons, he "knew no other facts and had no suspects in mind." The court concluded that Officer Tokunaga was "engaged in a lawful intrusion" when he "inadvertently observe[d]" the hammer. Because the blood on the hammer gave Officer Tokunaga probable cause to believe it was evidence of a crime, the hammer was lawfully seized under the plain view doctrine.

         Additionally, the circuit court concluded that the State had "carried its burden to show by clear and convincing evidence that the clothing found within the covered trash container in the garage would inevitably have been discovered by lawful means" under the search warrant later obtained. The court reasoned that the search warrant was not constitutionally defective because "notwithstanding the search warrant affidavit['s] reliance, in part, upon statements and items illegally obtained, the affidavit[] absent those statements and items contained sufficient basis upon which a district court judge could find probable cause to search for all items enumerated."

         The motion was therefore denied as to the hammer and clothing discovered in Phillips' garage. The court granted the motion, in part, with respect to certain statements Phillips made to HPD officers.

         2 . The Trial

         The hammer and the clothing recovered from the garbage container were received into evidence at trial. Officer Frank identified his discarded tissue in State's Exhibit 15, a photograph of the garbage can showing the appearance of the interior of the container when Officer Frank lifted its lid on the morning of September 3, 2008. Police witnesses provided testimony that Phillips had stated that he had placed the hammer "where it was found." A witness stated that he saw Phillips wearing the clothing found in the garbage container the day before the assault. An expert witness identified the red substance on the hammer and on the T-shirt as Tara's blood through DNA analysis.

         In regard to Tara's injuries, Dr. Cherylee Chang testified that Tara arrived at the hospital on the day of the attack in a coma. Tara was "unresponsive, not opening her eyes, " and had no motor response. Tara's principal injury was a large laceration over the right side of her head. According to Dr. Chang, Tara was "at imminent risk of death" because of significant brain injuries; if she had not received emergency medical treatment, she would have died "in the field." In order to save her life, Tara was placed into a medically induced coma.

         Tara's mother testified that Tara was in the hospital in Honolulu for four months before being transferred to a Veterans Affairs (VA) hospital near Tampa, Florida. At the time Tara left Hawai'i, Dr. Chang felt that Tara "was in such bad neurologic condition that it looked like she would be bed bound." Tara's mother testified that Tara was never able to live on her own after the attack and that she never regained any memory of her attack. Tara died in the Tampa, Florida VA hospital on April 19, 2010.[8]

         The parties stipulated during trial that Tara's "death was unrelated to the September 3, 2008 attack." Phillips elected not to testify. In closing argument, Phillips' counsel argued that there was insufficient evidence to convict Phillips of the charged offense.

         On June 16, 2011, the jury found Phillips guilty of attempted murder in the second degree. On August 29, 2011, the Judgment of Conviction and Sentence was issued by the circuit court, sentencing Phillips to life imprisonment with the possibility of parole, with restitution to be determined at a subsequent proceeding.

         At the restitution hearing, the State requested that Tara's mother be reimbursed for funeral and related expenses of $6, 530. Phillips argued that he should not be liable for any additional payment because he had made "very large payments for a couple years to" Tara's mother; Tara died well over a year after the attack; and there was no evidence presented or doctor's testimony regarding the cause of death. In response, the circuit court noted that Tara was in a coma, suffered from head injuries, had to be taken to a Florida nursing home, and would not have died but for Phillips' conduct. Following the restitution hearing, the court issued an Amended Judgment of Conviction and Sentence, which ordered Phillips to pay $6, 530 in restitution.

         On January 20, 2012, Phillips filed a timely notice of appeal from the amended judgment of conviction.

         C. Intermediate Court of Appeals

         Phillips contended to the ICA that his rights under the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Hawai'i Constitution were violated when the circuit court denied his motion to suppress. Phillips argued that the circuit court erred in applying the plain view doctrine to the discovery of the hammer and in concluding that the State had presented clear and convincing evidence that the clothing was admissible under the inevitable discovery exception to the exclusionary rule. Finally, Phillips argued that the circuit court erred in assessing $6, 530 in restitution.

         1. The Hammer

         Phillips asserted that the plain view doctrine was inapplicable to the seizure of the hammer, and he argued that the circuit court should have instead applied the open view doctrine. Phillips acknowledged that there "was nothing intrusive about Officer Tokunaga's vantage point because he was permitted to be in [Phillips'] garage by [Phillips] himself." Officer Tokunaga viewed the hammer from a "public vantage point, " and therefore, "the plain view doctrine should not be applied." "Absent a warrant [or] exigent circumstances at the time of its seizure, since the hammer was recovered from a constitutionally-protected location, evidence of the hammer should have been suppressed under the open view doctrine." Phillips argued in the alternative that, under the plain view doctrine, the circuit court should have suppressed the evidence because the discovery was not inadvertent.

         In its Answering Brief, the State argued that "discovery and seizure of the hammer was lawful under the 'plain view' exception to the warrant requirement." The State maintained that Officer "Tokunaga's observation of the hammer with a stain that resembled blood in the garage of the residence was an 'inadvertent discovery, '" because an inadvertent discovery is one in which police officers do not "know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext." The State argued:

Officer Tokunaga's discovery of the hammer was inadvertent. Here, Defendant had no reasonable expectation of privacy in his garage during a lawful investigation into the circumstances surrounding Tara's injuries initiated by Defendant's 911 call to the police. The police officers did not anticipate the discovery of the evidence until Officer Tokunaga actually observed the hammer.[9]

         The State contended that the police did not know in advance that the evidence would be there; therefore, the observation of the hammer was an inadvertent discovery, and the circuit court properly admitted the hammer into evidence.

         In his Reply, Phillips asserted that "both sides have conceded that the issue boils down to whether Officer Tokunaga's discovery of the hammer was 'inadvertent.'" Phillips argued that discovery of the hammer was not inadvertent just because "the police did not know in advance that the evidence would be there." Rather, Phillips maintained that when Officer Tokunaga discovered the hammer, he "was specifically looking for evidence related to the attack on the complainant."

         Phillips contended that "police investigation of a crime or [his] house being established as a crime scene" does not constitute "exigent circumstances such that the police could violate [his] constitutional rights." He did not have an "affirmative duty ... to declare or establish his constitutional right to privacy in his own home." Phillips argued that there "was no evidence or testimony that established exigent circumstances justifying seizure of the hammer. To the contrary, the police could have quite easily secured the residence and obtained a warrant."

         2 . The Clothing

         Phillips declared that the circuit court did not conduct an "analysis under the plain view doctrine to attempt to justify the seizure of the clothing." According to Phillips, "the court rejected any application of the plain view doctrine and instead justified the seizure of the clothing under the doctrine of inevitable discovery."

         Phillips contested the circuit court's finding "that the search warrant would still have been issued even without information of the illegally obtained evidence." Rather, Phillips argued, the circuit court improperly concluded that the search warrant would have been issued because "the court fail[ed] to cite to any findings of fact in support of this contention." Phillips contended that his position was bolstered by the fact that "despite all of the illegally-obtained evidence and statements, the police still did not feel that probable cause existed to arrest [him] after his interview."

         Phillips also argued that, even if the search warrant would hypothetically have issued, the State did not show that the clothing would have still been there when the search warrant was executed. Phillips maintained that, while he did not mean to suggest he had "a right to discard or destroy evidence, " the lower court improperly "concluded that the State demonstrated by clear and convincing evidence that [Phillips] was incapable of retrieving and discarding the clothing from the garbage can" before the search warrant was executed at 7:45 p.m.

         The State countered that "the attempted murder of Tara" in the house and the hammer "found in the garage [with] a stain that resembled blood on it" constituted "sufficient probable cause to issue the warrant." The State contended that Phillips could not have removed evidence from his house because, as noted in the Affidavit in Support of Search Warrant, "the vehicle and residence were being secured by the presence of police units on scene." The State therefore maintained that "the circuit court was correct in concluding that 'the clothing . . . would inevitably have been discovered by lawful means.'"

         Phillips replied that because "three major bases of the warrant application [were] invalid"--the hammer, the clothes and much of Phillips' statements to the police--"it cannot be assumed that the warrant [was properly] issued or that it would have specified [the trash can] to be searched." Phillips maintained that even "if there did exist sufficient probable cause to issue the search warrant, the State did not show by clear and convincing evidence that the clothing recovered from [Phillips'] home would still have been there." The warrant was not executed until "approximately sixteen hours later, " and there "was no testimony regarding whether the police would have let [Phillips] back into his house after his release from custody."

         3. Restitution

         Phillips argued that because the parties stipulated that Tara's death was "unrelated to the September 3, 2008 attack . . . it must be accepted as fact." Phillips maintained that "Tara died a full eighteen months after the attack." Phillips argued that "[t]he record was completely devoid of any evidence or testimony that her death was the result of the September 3, 2008 attack on her"; therefore, the circuit court erred when it ordered him to pay restitution.

         The State responded that the circuit court correctly recognized that "Tara didn't recover from the injuries she sustained as a result of Defendant's attack upon her, " "was in a coma and . . . had to be taken to a Florida nursing home, and there died . . . and would not have died but for Defendant's conduct." The State contended that the circuit court properly concluded that there was a nexus between Phillips' conduct and Tara's death, and therefore, it "did not err by ordering Defendant to pay restitution."

         In his Reply, Phillips argued that the circuit court "did not rely on any evidence to overcome the stipulated fact that the complainant's death had nothing to do with the attack on her." Because the "conclusions by the court did not come from any evidence -- testimonial or otherwise"--Phillips argued that he had "no opportunity to challenge the court's findings through traditional methods of cross examination or lack of foundation, " and therefore, the order of restitution was not proper.

         4 . Summary Disposition Order

         On August 30, 2013, the ICA issued a Summary Disposition Order (SDO). The ICA focused on the "inadvertent discovery" requirement for a "legitimate plain view observation." In determining the meaning of "inadvertent, " the ICA relied upon a dictionary definition of inadvertent as "unintentional." The ICA noted that Officer Tokunaga's supervisor instructed him "to search the premises for the weapon used in the attack" on Tara. "A warrant certainly could have been obtained to search the premises given that an attempted murder appeared to have taken place there." Thus, the ICA concluded that "the search and discovery of the hammer were certainly intentional" and, thus, could not "be described as inadvertent." The ICA held that "the intentional search and seizure of the hammer under the plain view doctrine was not valid" and that "the circuit court erred in not suppressing the evidence of the hammer." The ICA concluded that the issues relating to the clothes and restitution were moot, vacated Phillips' conviction, and remanded the case for a new trial.

         The dissent to the ICA opinion "agree[d] that the Circuit Court erred in its application of the plain view doctrine, but only because ... it was mistaken to apply the doctrine at all." The dissent contended that "Phillips impliedly consented to a routine investigation into the circumstances of the assault, and the seizure of the hammer was thereby justified."

         The dissent reasoned that if the inadvertency requirement was held "to equate to intentionality, then, logically, the plain view doctrine can never apply to a seizure of evidence that is discovered during a search intended precisely to turn up evidence of the sort discovered." The dissent nevertheless avoided "the use of the plain view doctrine entirely" and used implied consent as the "starting point for [the] analysis." The dissent "would rule that Phillips impliedly consented to [the] investigation" when he "called 911 to report that his wife was attacked, and hastened responding officers into his home." And "such consent was valid until such time as the initial investigation ceased; he revoked, or limited the scope of, that consent; or he became a suspect." The dissent noted that "Phillips never evinced any desire to limit the scope of police activity" and "seemed intent on facilitating the investigation."

         The dissent concluded that the facts provided in Detective Sunia's Affidavit, including the lawfully discovered hammer, established probable cause for a search warrant without the inclusion of the clothes discovered by Officer Frank. Further, "[t]he evidence in the record clearly and convincingly establishes that the authorities would not have permitted Phillips to re-enter his house -- a crime scene -- to dispose of anything therein." Thus, in the dissent's view, the circuit court was correct in determining that the clothing would inevitably have been discovered pursuant to the execution of the search warrant.

         The dissent also would have affirmed the circuit court's award of restitution, based on the evidence establishing that Tara suffered head injuries, was in a coma after the attack, and later had to be put in a nursing home where she eventually died. Further, the dissent pointed to evidence presented to the circuit court regarding the lethality of her injuries in concluding that Phillips' responsibility for his conduct was not extinguished.

          D. Application for Writ of Certiorari

         A1. ...


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