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State v. Loher

Supreme Court of Hawaii

July 20, 2017

STATE OF HAWAI'I, Plaintiff-Appellee,
FRANK O. LOHER, Defendant-Appellant.


          Peter C. Wolff, Jr., and Craig W. Jerome for appellant

          Brian R. Vincent for appellee



          POLLACK, J.

         This case arises from the nearly seventeen-year old conviction of Frank 0. Loher for attempted sexual assault in the first degree. At trial, Loher sought to present an alibi defense based in large part on the testimony of his wife and his wife's son. Although the trial was anticipated to last between five and six days, the State rested its case-in-chief in the early afternoon on the first day of the evidentiary portion of the trial. When the circuit court informed defense counsel that the defense's witnesses would be required to testify that day, counsel sought a continuance to secure the witnesses' presence so that they could testify first. The circuit court denied the requested continuance, and, over defense counsel's objection, the court ordered Loher to either take the stand at that time or forfeit his right to testify entirely. As a result, Loher took the stand and testified before the other witnesses in the defense's case.

         Following his conviction and his unsuccessful appeal, Loher sought relief in state and federal post-conviction proceedings. As a result of the post-conviction proceedings, the Intermediate Court of Appeals' June 19, 2003 judgment on direct appeal was vacated so that Loher could raise a claim that his constitutional rights were violated when the circuit court ordered him to testify first or not at all. Loher's case requires this court to consider whether the circuit court erred based on principles set forth in the United States Supreme Court's decision in Brooks v. Tennessee, 406 U.S. 605 (1972), the Hawai'i Constitution, and Hawai'i caselaw, and, if the court erred, whether the error is subject to harmless error review.


         A. Circuit Court Trial

         On August 19, 1999, Loher was indicted by a grand jury for attempted sexual assault in the first degree, in violation of HRS § 705-500 (1993) and HRS § 707-730(1)(a) (1993) (count one), and attempted kidnapping, in violation of HRS § 707-720(1)(d) (1993) (count two). Loher v. State, 118 Hawai'i 522, 524, 193 P.3d 438, 440 (App. 2008), overruled on other grounds by State v. Auld, 136 Hawai'i 244, 361 P.3d 471 (2015) . The State filed a "Memorandum of Pretrial" on December 9, 1999, stating that the trial was expected to take five to six days. Id. On November 13, 2000, the State filed its "Witness and Exhibit List" identifying fourteen witnesses for the State. Id.

         Loher and the State each filed motions in limine relating to the evidence to be presented at trial. Id. During the hearing on the parties' motions, Loher stated that he intended to present an alibi defense and establish that he was not present during the attempted sexual assault and kidnapping. Id. Loher's counsel represented to the court that Loher would testify at trial, but at various times he also expressed the possibility that Loher would choose not to take the stand. Loher v. State, No. 29818, 2011 WL 2132828, at *1 (App. May 31, 2011) (mem.).

         The evidentiary portion of the jury trial commenced at 9:30 a.m. on Tuesday, November 14, 2000.[1] The State first called Honolulu Police Department (HPD) Officer Oryn Baum. Officer Baum testified that on July 29, 1999, at approximately 3:43 a.m., she was dispatched to an industrial area at 2722 Kakoi Street. Once she arrived, she was flagged down by a female identified by Officer Baum as the complaining witness. Officer Baum stated that the complaining witness's halter top was ripped, and the officer observed a "kind of a scratch" on her back. The complaining witness described her assailant, the vehicle he was driving, and the vehicle's license plate number. The vehicle was subsequently identified by Officer Baum as belonging to Frank and Andrea Loher. Following Officer Baum's testimony, the State called an HPD fingerprint identification technician who testified that five sets of fingerprints were recovered from Loher's car but that none were a match to the complaining witness.

         The State then called the complaining witness, complainant testified that in the early morning hours of July 29, 1999, she was walking along Kapi'olani Boulevard when she accepted an offer of a ride to the airport from an individual with whom she was not acquainted who was driving a red car. The witness made an in-court identification of Loher as the driver.

         The complaining witness related that after the driver got on the freeway, she fell asleep. When she woke up, the car was parked. The driver then demanded oral sex. As she tried to exit the vehicle, the complaining witness described that the driver ripped her shirt and scratched her back in an attempt to keep her inside of the car. She then ran out of the car to a nearby pay phone, which she used to call police. The complainant identified pictures presented by the State of the alleged crime scene and Loher's vehicle.

         Following the lunch recess, the defense began its cross-examination of the complaining witness. The complainant confirmed that earlier in the evening and prior to the incident, she fought with her boyfriend because he got into a car with three other girls, and she did not want to see him with the other girls. The complaining witness clarified that she was walking because she wanted to go to the airport; she believed that if she could get to the airport, she could obtain free airline tickets from her boyfriend's uncle who worked for an airline. Following this testimony, at 1:39 p.m., HPD Detective Earl Takahashi was called by the State and testified that the complaining witness identified Loher as the driver in a photographic lineup.

         After the conclusion of Detective Takahashi's testimony, the State rested its case at approximately 2:15 p.m. The court recessed, and at 2:27 p.m., the court reconvened outside the presence of the jury. Loher's counsel requested a continuance until the next trial day on Thursday morning because he "had no idea that [the State] would finish [its case] this early, " given that the State had "quite a number of people on the witness list." Counsel stated that he told the defense witnesses to prepare to testify on Thursday; he related that he tried to "make a couple calls" to secure the presence of defense witnesses that day, but they were not available. Defense counsel apologized but stated that "it's too quick for us to have to present witnesses under the circumstances."

         The circuit court denied the continuance request, citing Hawaii Rules of Evidence (HRE) Rule 611 (1993) and noting that there was more than enough time left in the day to proceed with trial.[2] The court stated that it would "allow the defense to call Mr. Loher to testify" at that time. Defense counsel objected, noting that Loher had a right not to testify and that depending on the testimony of the other witnesses, Loher may choose not to take the stand. Counsel further argued that the court was essentially forcing Loher to testify.

[Defense counsel]: . . . the Court is actually forcing [Loher] to take the stand because now we have nobody to call, and you're saying, Well, we can call Mr. Loher, but as a strategic manner in planning for our case, he was going to be the last witness I call, and depending how it went with the other witnesses, we may not need to call him because we can get everything that we need through the other witnesses.
So, in fact, now that we're being forced to call him as first witness in a sense is prejudicial to Mr. Loher because he's being forced to testify when he, in essence, we had not decided fully whether or not he would testify for sure.

         The court stated that it found defense counsel's argument unpersuasive because it was counsel's responsibility to prepare for trial.

The Court: The Court does not find the argument persuasive. The Court believes that it was the responsibility or is the responsibility of counsel to determine when witnesses would be available.
Defense counsel was free to discuss with the State the witnesses called and when they would anticipate finishing their case.
Defense counsel has hopefully prepared for this case, so should be aware at the present time what the witnesses that he intends to call will testify. And having prepared and having a knowledge as to what they will say, since they are the defense witnesses, then they should be in the position to know whether the defendant should testify.

         The court also stated that defense counsel had represented that Loher would testify concerning his alibi defense and suggested that defense counsel's objection to Loher testifying that day was manipulative.

The Court: ... So the Court believes it is not persuasive that defense counsel should now argue to this Court, after the Court had denied his request to delay the trial till Thursday by saying that he does not know what his own witnesses will say and depending what they say, he will then make the decision whether his client's going to testify.
The Court would also note that during the pretrial conferences, as well as in the opening statement, the defendant has asserted an alibi that he was not present at the time, and that where the -- his location would be during certain times defense counsel has also represented to the Court that his client is going to testify.
The Court is not persuaded by his argument and is concerned that this may be manipulative in order to obtain the relief that the Court had not granted.

         When defense counsel requested permission to respond to the court's concerns, the court refused, stating that it was unpersuaded by counsel's argument and directing counsel to call Loher to testify or waive his testimony.

[Defense counsel]: Well, if I can respond.
The Court: Excuse me, and the Court is unpersuaded by your argument. So we're going to proceed. You may call your client to testify, or if you wish, not to testify or engage in Tachibana at this time, and he may waive his testimony. That is between you and your client.
So I'm going to take a recess, and before we do that, is your client going to testify or is he going to waive his right to testify?

         In response to the court's question whether Loher would testify or waive his right to testify, defense counsel responded, "I'd like to discuss that matter with him." The court then recessed so that defense counsel could discuss with Loher whether he would testify.

         The court reconvened at 2:43 p.m., and the defense called Loher to testify. Loher stated that he was working on the night in question. When his shift ended at approximately 1:00 a.m. on the morning of July 29, he visited his wife, Andrea, at the hospital where she worked. Loher left the hospital, went to his place of residence, and spoke with his wife on the phone, and he then slept from approximately 3:30 a.m. until 4:00 a.m. Loher testified that he left his residence at around 4:30 a.m. to pick up Andrea's son, Moses, visit with Andrea at the hospital, and drive Moses to work. Loher also testified that he had previously served in the United States Army.[3]

         On cross-examination, the State elicited testimony that Loher had been dishonorably discharged from the United States Army. Loher acknowledged that in a prior statement to Detective Takahashi, he did not say anything about speaking with his wife on the phone after leaving the hospital. Additionally, Loher confirmed that he told Detective Takahashi that he left his residence to pick up Moses at 5:30 a.m., rather than at 4:30 a.m. as he had testified on direct examination. Loher also agreed that he told Detective Takahashi that no one else had access to his car the night that the incident occurred. After Loher finished testifying, the court recessed for the day.

         When trial resumed on Thursday, November 16, 2000, the defense called Moses and Andrea to the stand. Andrea testified that Loher arrived at the hospital to visit with her shortly before 2:00 a.m. and that he left at around 2:35 a.m. Andrea stated that after Loher left the hospital and returned to his residence, she spoke with him on the phone twice, with the second call occurring at approximately 3:15 a.m. and lasting for fifteen to twenty minutes. Andrea called Loher again at around 4:00 a.m. to wake him up so that he could take Moses to work. On cross-examination, Andrea admitted that some of her statements at trial were inconsistent with her prior statements to Detective Takahashi, and she further acknowledged that she had not told the detective that she called Loher at 4:00 a.m. to wake him up.

         Moses testified that Loher arrived to pick him up at about 4:45 a.m. on the morning of July 29. Moses stated that Loher drove him to visit with Andrea at the hospital and then to work, where they arrived at about 6:00 a.m.

         The State then called three rebuttal witnesses who testified regarding Loher's place of residence and appearance on the day of the incident and Andrea's prior statements to HPD. In closing arguments given that same day, both the State and the defense described the case as resting largely on credibility.

         The jury found Loher guilty of count one, attempted sexual assault in the first degree.[4] On July 18, 2001, Loher was sentenced to an extended term of life imprisonment with the possibility of parole, subject to a repeat-offender mandatory minimum of thirteen years and four months. The court ordered Loher to serve his term of life imprisonment consecutively to sentences he was currently serving in unrelated matters.[5]

         B. Direct Appeal (No. 24489)

         Prior to sentencing, trial counsel withdrew as Loher's counsel, and appellate counsel was appointed to represent Loher.[6]On appeal, Loher challenged the jury instructions, the sufficiency of the evidence, and his sentence; he also raised a claim of ineffective assistance of trial counsel. Appellate counsel did not raise the issue of Loher being forced to testify before the other defense witnesses. The ICA rejected Loher's claims and affirmed his conviction and sentence. See State v. Loher (Loher I), No. 24489, 2003 WL 1950475 (App. Apr. 21, 2003) (mem.). Loher unsuccessfully sought certiorari review.

         C. Post-Conviction Proceedings

         Thereafter, Loher engaged in post-conviction litigation in both state and federal court on the following three claims: (1) the circuit court violated his constitutional rights by forcing him to testify before any of his witnesses or not at all, in violation of Brooks v. Tennessee, 406 U.S. 605 (1972); (2) appellate counsel rendered ineffective assistance of counsel by failing to raise the Brooks forced testimony issue on direct appeal; and (3) the enhancement of his sentence based on facts found by the circuit court judge violated Apprendi v. New Jersey, 530 U.S. 466 (2000).

         i. State Post-Conviction Proceedings

         In State v. Loher (Loher II), No. 26000, 2005 WL 335234 (App. Feb. 11, 2005) (mem.), the ICA rejected Loher's Apprendi claim and affirmed the circuit court's denial of Loher's motion for correction of sentence under Hawai'i Rules of Penal Procedure (HRPP) Rule 35 (1993).

         In Loher v. State (Loher III), 118 Hawai'i 522, 539, 193 P.3d 438, 455 (App. 2008), overruled on other grounds by State v. Auld, 136 Hawai'i 244, 361 P.3d 471 (2015), the ICA affirmed in part and vacated in part the circuit court's denial of an HRPP Rule 40 petition submitted by Loher. Specifically, the ICA noted that Loher's HRPP Rule 40 petition could be construed to raise a claim that appellate counsel was ineffective for failing to raise the Brooks forced testimony issue on direct appeal. 118 Hawai'i at 532, 193 P.3d at 448. The ICA concluded that the circuit court erred in denying the HRPP Rule 40 petition without holding a hearing on the ineffective assistance of counsel issue, and it therefore remanded the case to the circuit court for an HRPP Rule 40 hearing. Id. at 539, 193 P.3d at 455.

         In Loher v. State (Loher IV), No. 29818, 2011 WL 2132828 (App. May 31, 2011) (mem.), the ICA reviewed the circuit court's denial of Loher's HRPP Rule 40 petition following the hearing conducted on remand pursuant to Loher III. The ICA recounted various parts of the testimony that were presented at the hearing on remand.[7] The ICA determined that the circuit court denied Loner's HRPP Rule 40 petition because Loher had already decided to testify prior to trial and because trial counsel was at fault for not having defense witnesses ready to testify after the State rested its case. Id. at *4-5. The ICA concluded that its opinion in State v. Kido, 102 Hawai'i 369, 76 P.3d 612 (App. 2003), had created several exceptions to the rule set forth in the U.S. Supreme Court's decision in Brooks v. Tennessee, 406 U.S. 605 (1972), and that at least two of these exceptions applied in Loher's case. Loher IV, 2011 WL 2132828, at *6-9. The ICA therefore ruled that the circuit court correctly concluded ...

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