State v. Tookes, s. 9279

CourtSupreme Court of Hawai'i
Citation67 Haw. 608,699 P.2d 983
Docket NumberNos. 9279,9441,s. 9279
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Francine TOOKES, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Christel TARKINGTON, Defendant-Appellant.
Decision Date15 May 1985

Syllabus by the Court

1. Due process principles bar the government from invoking judicial process to obtain a conviction when police conduct violates fundamental fairness or shocks the conscience.

2. A defense based on an alleged deprivation of due process of law is not made out where convictions for prostitution arise from sexual relations between the Defendant and a police agent.

3. In determining that a Defendant charged with prostitution was not denied due process where a police agent participated in sexual activity, the trial court's holding was supported by a lack of evidence that the agent's conduct increased existing criminality, and by evidence that use of the agent was necessary in order to gain acceptance.

4. The fact that the conduct of a police agent, if undertaken by a police officer, would have violated internal department rules, does not trigger the protections of the due process clause, where there was no showing that the rule was compelled by law or the constitution.

5. Where the evidence does not support a finding that police conduct would have the probable effect on a reasonable person of inducing her to engage in prohibited activity, a claim of entrapment is not established.

6. Even if Hawaii's prohibition against prostitution were deemed to set up a gender-based classification, it would be invalid under the guarantee of equal protection of the laws only if it did not serve important government objectives or was not substantially related to achieving those objectives.

7. The decision to target a criminal prohibition against prostitution on the seller of the prohibited service serves important government objectives and is substantially related to achieving those objectives.

8. Where an equal protection attack on a gender-neutral criminal prohibition cannot be sustained on other grounds, the party raising this defense to a criminal charge must demonstrate a pattern of discriminatory enforcement so overwhelming that intent to discriminate can be inferred.

9. A pattern of invidious discrimination, demonstrating an unequal application of law so extreme as to show intent to discriminate, is necessary to make out an equal protection violation, rather than a mere showing of disparate impact.

10. The party raising an equal protection defense to application of a criminal prohibition has the burden of presenting sufficient evidence establishing intentional or purposeful discrimination deliberately based on an unjustifiable standard such as race, religion or some other arbitrary classification.

Susan Barr, Deputy Public Defender, Honolulu (Alvin T. Sasaki, Deputy Public Defender, Honolulu, and John M. Tonaki, Law Student, on the opening brief), for defendant-appellant Francine Tookes.

Barbara Lee Melvin, Honolulu, for defendant-appellant Christel Tarkington.

Alexa Fujise, Deputy Pros. Atty., Honolulu (Arthur E. Ross, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee State of Hawaii.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

LUM, Chief Justice.

These cases are appeals from a conviction for prostitution by Defendant Tookes, and for illegal massage and prostitution by Defendant Tarkington. Both women allege that the conduct of the police agent who was a party to the sexual encounters which led to their convictions denied them due process of law. In addition, Defendant Tarkington asserts the police operation constituted entrapment as a matter of law. While we question whether the police practices used in these cases are consistent with the ethical standards which should guide law enforcement officials, we are unwilling to rule that the acts which occurred constituted a breach of the bounds of decency of constitutional magnitude. We similarly find no merit to the additional defenses raised.

I.

Both women were convicted of prostitution 1 as a result of acts of sexual intercourse with Steven Fox. Fox was a civilian volunteer who acted at the behest of members of the Honolulu Police Department Vice Squad. 2 He was instructed on the law of entrapment, supplied with money to arrange sexual contacts, and given signals by which to contact police surveillance units. He was specifically instructed to engage in sexual intercourse if necessary to obtain evidence sufficient for a conviction.

In No. 9279, sexual relations occurred after Tookes called out to Fox, who was driving a passing car through downtown Honolulu, and asked if he wanted a "date." She accompanied him to a deserted parking lot, where the two discussed money but did not specifically mention sexual acts. She initiated physical contact leading to intercourse.

In No. 9441, Fox called a massage/escort service as instructed by a vice officer. After a return phone call to identify herself, Tarkington arrived at Fox's hotel room. After he asked her what else was involved in the $50 fee, Tarkington told Fox that $50 would pay for a massage, and that $50 would cover "extras." After paying her $100, Fox was massaged and had intercourse with Tarkington.

II.

At the center of both of the instant appeals is the allegation that the conduct of the police, in using a civilian agent to secure convictions for prostitution by actually engaging in sexual activity with the defendants, constituted a violation of the guarantees of due process of law provided by the State and federal constitutions. In particular, Tookes asserts that the police tactics used in this case constituted outrageous conduct in contravention of these due process guarantees.

This argument stems from dictum in which the U.S. Supreme Court opined:

[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction....

United States v. Russell, 411 U.S. 423, 431-432, 93 S.Ct. 1637, 1642-1643, 36 L.Ed.2d 366 (1973). The court in Russell, and subsequently in Hampton v. U.S., 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), left open the possibility of a due process defense such as the one raised in these cases, yet rejected its application on the facts before it.

We are unconvinced that the activities of the police or their agent in these cases is "conduct that shocks the conscience" sufficiently to trigger a defense bottomed on the due process clause. See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). It is true that "[d]ue process of law, as a historic and generative principle, precludes defining, and thereby confining 'those standards of conduct required of the State in its efforts to prosecute crimes.' " Id. at 173, 72 S.Ct. at 210. Nevertheless, other states faced with facts similar to these have rejected, as we reject in the instant appeals, a due process defense.

In Municipality of Anchorage v. Flanagan, 649 P.2d 957 (Alaska Ct.App.1982) the Alaska Court of Appeals reversed the dismissal on due process grounds of a criminal charge for prostitution, in a case strikingly similar to the one before this court. A reserve police officer, working as a volunteer pursuant to encouragement from the city's vice squad, placed a phone call to a dating service. After agreeing with the police to go to the establishment and pose as a prospective customer in order to determine whether prostitution was occurring, Chandler, the reserve member, did so. He initiated discussion of the woman's willingness to perform sexual acts, paid her, and allowed her to engage in sexual contact before placing her under arrest. Id. at 959.

The court found that these activities did not so shock the universal sense of justice and violate the concept of fundamental fairness as to deny due process:

Although Chandler's conduct ... might be considered questionable, we do not think that this conduct even in the context of an investigation involving a relatively minor misdemeanor charge can accurately be characterized as outrageous.

Id. at 963.

The Flanagan court relied upon the decision in State v. Putnam, 31 Wash.App. 156, 639 P.2d 858 (1982). In the latter opinion, the Washington Court of Appeals upheld convictions for promoting prostitution in a case where a civilian "agent" employed by a business suspected of being a front for prostitution was authorized to "turn tricks" in order to secure convictions. The court noted that in State v. Emerson, 10 Wash.App. 235, 517 P.2d 245 (1973), it had recognized that the due process "defense" involved a balancing of policy considerations in favor of crime detection and punishment against the policy of fair treatment. Stating that practicality required in some cases that the police participate in unlawful practices, the Putnam court refused to disturb the trial court's balancing of these competing interests. 31 Wash.App. at 162, 639 P.2d at 862.

In the instant cases, the trial judges both evaluated the police practices at issue and found no due process violation. We cannot say that their conclusions were in error. There was no showing that Fox's actions increased the criminality which was already occurring. The use of an agent was deemed necessary by the police in order to gain acceptance by participants in a criminal act. Similar factors led one court to reject the due process defense to a prostitution charge. State v. Jessup, 31 Wash.App. 304, 641 P.2d 1185 (1982).

While we question whether the actions of Fox and the police in this case comport with the ethical standards which law enforcement officials should be guided by, we cannot say that they constituted outrageous conduct in the constitutional sense. Neither are we able to find a due process violation because Fox's...

To continue reading

Request your trial
18 cases
  • State v. Johnson
    • United States
    • United States State Supreme Court (New Jersey)
    • May 13, 1992
    ...... E.g., People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 467, 591 P.2d 947, 955 (1979); State v. Tookes, . Page 466 . 67 Haw. 608, 699 P.2d 983, 987 (1985). Some courts believe that the defendant's obvious predisposition can mute the wrongfulness of ......
  • Baehr v. Lewin, 15689
    • United States
    • Supreme Court of Hawai'i
    • May 5, 1993
    ...at the very least, to "intermediate scrutiny" under the equal protection clause of the Hawaii Constitution. State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 988 (1985); State v. Rivera, 62 Haw. 120, 123, 612 P.2d 526, 529 (1980). 32 See, e.g., State v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.......
  • Richards v. League of United Latin American Citizens (LULAC), D-2197
    • United States
    • Supreme Court of Texas
    • October 6, 1993
    ...2340-41, 37 L.Ed.2d 314 (1973) (discrimination against Mexican Americans in legislative reapportionment).7 See, e.g., State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985); People v. Adams, 149 Ill.2d 331, 173 Ill.Dec. 600, 597 N.E.2d 574 (1992); American Federation of State, County and Municip......
  • People v. Juillet, Docket Nos. 76747
    • United States
    • Supreme Court of Michigan
    • October 1, 1991
    ...is prostitution and the relations are necessary to obtain evidence, but these facts are not before us here. See, e.g., State v. Tookes, 67 Hawaii 608, 699 P.2d 983 (1985) (the deceitful use of sex by civilian volunteer acting at the behest of police investigating prostitution ring was not o......
  • Request a trial to view additional results
1 books & journal articles
  • OUTRAGEOUS GOVERNMENT (MIS)CONDUCT: DUE PROCESS AS A DEFENSE IN PAID-SEX STING OPERATIONS.
    • United States
    • University of Pennsylvania Law Review Vol. 169 No. 2, January 2021
    • January 1, 2021
    ...seized to sell in a reverse-sting operation that resulted in defendant's being arrested and prosecuted). (122) See, e.g., State v. Tookes, 699 P.2d 983, 987 (Haw. 1985) ("While we question whether the actions of... the police in this case comport with the ethical standards which law enforce......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT