83 Hawai'i 141, State v. Tuipuapua
| Decision Date | 02 October 1996 |
| Docket Number | No. 19172,19172 |
| Citation | 925 P.2d 311 |
| Parties | 83 Hawai'i 141 STATE of Hawai'i, Plaintiff-Appellant, v. Muavae TUIPUAPUA, also known as Tuipuapua Moananu, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellee.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
Plaintiff-appellant State of Hawai'i (prosecution) appeals the granting by the First Circuit Court of defendant-appellee Muavae Tuipuapua's motion to dismiss his indictment. On appeal, the prosecution contends that the criminal prosecution against Tuipuapua was not barred by double jeopardy on the basis that: (1) jeopardy does not attach to a forfeiture that is not contested by the defendant; and (2) case law indicates that double jeopardy does not bar prosecution of an indictment following the forfeiture of one's property. 1
For the reasons set forth below, we vacate the circuit court's order and remand the case for further proceedings.
On April 5, 1994, at approximately 10:45 a.m., a Polynesian male, later identified by photographic line-up as Tuipuapua, went to Dominador Agustin's residence located at 2511D Rose Street, and told Agustin that he was a police officer. Tuipuapua asked to be let into Agustin's residence to discuss a matter regarding Agustin's son, Marlon, and asked repeatedly to be let into Marlon's room to search for a gun. Agustin told Tuipuapua that he would not open the door for him, but would awaken his other son, Donel, to open the door to Marlon's room.
Donel subsequently opened the door to Marlon's room. Tuipuapua then entered the room, conducted a search, and removed an envelope containing cash from the rails of Marlon's bed. Tuipuapua also removed from the room a jewelry box and a plastic bottled water dispenser full of coins and currency in small denominations.
Tuipuapua asked for a bag with which to carry the water dispenser but, after being told that there was none, he took a pillowcase. Tuipuapua left with all of the items, and drove away in a gray Oldsmobile Cutlass vehicle (Cutlass). Tuipuapua at no time was given permission to remove the items from Agustin's residence.
Tuipuapua was arrested two days later, on April 7, 1994, and was subsequently charged with burglary in the first degree, in violation of Hawai'i Revised Statutes (HRS) § 708-810 (1993), 2 and impersonating a law enforcement officer in the second degree, in violation of HRS § 710-1016.7 (1993). 3 Furthermore, after determining that Tuipuapua was the registered owner of the Cutlass, the police seized the Cutlass for forfeiture.
Also on April 7, 1994, the police served Tuipuapua with a notice of seizure for forfeiture pursuant to HRS §§ 712A-7(3) (1993) 4 and 712A-8(a)(i) (1993), 5 in the presence of two witnesses. Tuipuapua nevertheless refused to sign the notice to confirm service.
On April 25, 1994, a complaint was filed in the circuit court charging Tuipuapua with burglary in the first degree 6 and impersonating a law enforcement officer in the second degree. 7
The prosecution subsequently filed a petition for administrative forfeiture of the vehicle on May 17, 1994. On June 20, 1994, the prosecution provided notice of the pending administrative forfeiture by personally serving a copy of the petition upon Tuipuapua through his attorney-in-fact, Susan M. Billianor. 8 However, Tuipuapua failed to file a timely claim to the subject property. 9 By order filed by the Attorney General on September 28, 1994, the Cutlass was forfeited to the State. The Attorney General determined that the facts as alleged in the petition for administrative forfeiture established probable cause to believe that the Cutlass had been "used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense, or which facilitated or assisted in such activity." 10 See HRS § 712A-5(1)(b) (1993).
On June 15, 1995, Tuipuapua filed a motion to dismiss the complaint based on the constitutional double jeopardy protection against multiple punishments for the same offense. A hearing was held on the motion on July 21, 1995. When asked by the trial court whether the parties were prepared to stipulate regarding the notification of the administrative forfeiture, Tuipuapua, through his counsel, stipulated "to the facts as contained in the administrative order as to notice." Through counsel, Tuipuapua also stipulated that he "defaulted" by not responding to the petition for administrative forfeiture. The prosecution stipulated to these facts.
At the hearing, Tuipuapua acknowledged that he was the registered owner of the Cutlass. In addition to arguing that the forfeiture was a prior punishment regarding the burglary charge and that double jeopardy barred the present prosecution on that charge, Tuipuapua contended that he did not receive actual notice of the pending administrative forfeiture because Tuipuapua was incarcerated at the time the Attorney General's notice was published, and he had no access to a newspaper. The prosecution eventually stipulated that Tuipuapua had been incarcerated from April 7, 1994 through July 25, 1994.
The circuit court thereafter issued its order granting Tuipuapua's motion to dismiss indictment based on the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The Court adopts the facts giving rise to the seizure as set forth in the Order Re: Administrative Forfeiture filed on
September 28, 1994. The ... Cutlass ..., which was the subject of the administrative forfeiture, was used by [Tuipuapua] to drive away after committing a burglary.
2. [Tuipuapua] was determined to be the registered owner of the Cutlass.
3. Notice of the seizure for forfeiture was served on [Tuipuapua] by personal service on April 7, 1994, however, he refused to acknowledge receipt of service in writing.
4. Notice of the pending administrative forfeiture was provided by publication on July 17, 1994.
5. [Tuipuapua] failed to respond within thirty days of receiving notice of the pending administrative forfeiture after notice by publication.
6. The Order states that the property which was subject to forfeiture was "... used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense, or which facilitated or assisted such activity...."
* * * * * *
1. Although default judgment was entered against [Tuipuapua] in the administrative forfeiture proceeding, the Cutlass was indisputably his. Accordingly, the fact that default judgment was entered is not automatically dispositive of [Tuipuapua]'s double jeopardy challenge.
2. The administrative forfeiture proceeding clearly resulted in the award of the property to the State. Civil forfeiture sanctions, at least in part, constitute "punishment" under the Double Jeopardy Clause....
* * * * * *
4. Other than the fact that [Tuipuapua] was seen to drive away in the Cutlass, the Order does not indicate that the Cutlass was purchased as a result of illegal funds.
5. Based on the Order, the court concludes that the administrative forfeiture did amount to "punishment" which would trigger application of the double jeopardy prohibition inasmuch as the forfeiture was intended to punish [Tuipuapua] for his unlawful activity, namely burglary. This purpose is punitive.
(Citations omitted.)
The prosecution thereafter timely appealed.
On appeal, the issue whether a defendant's constitutional right against double jeopardy will not be violated if the defendant is criminally prosecuted following a civil forfeiture is a question of law and thus reviewable under the de novo or right/wrong standard. State v. Baranco, 77 Hawai'i 351, 351, 884 P.2d 729, 733 (1994) (citing United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir.1987)). See also State v. Toyomura, 80 Hawai'i 8, 15, 904 P.2d 893, 900 (1995).
"Under the right/wrong standard, we examine the facts and answer the question without being required to give any weight to the trial court's answer to it." State v. Miller, 4 Haw.App. 603, 606, 671 P.2d 1037, 1040 (1983). See also Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 119, 839 P.2d 10, 28, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992). Thus, "[a] [conclusion of law] is not binding upon the appellate court and is freely reviewable for its correctness." State v. Bowe, 77 Hawai'i 51, 53, 881 P.2d 538, 540 (1994) (citation omitted).
We review the trial court's findings of fact under the clearly erroneous standard. Dan v. State, 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994). Under this standard, "[a] finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed." Id.
The prosecution first contends that the criminal prosecution against Tuipuapua was not barred by double jeopardy on the basis that jeopardy did not attach when Tuipuapua abandoned the Cutlass by failing to file a timely claim pursuant to HRS § 712A-10(4). 11
Before a person known to have an interest in the property is able to file a timely claim pursuant to HRS § 712A-10(4), HRS §§ 712A-10(2) and 712A-10(3) require that the State provide notice of pending forfeiture and of intention to forfeit property. HRS § 712A-10 (1993) provides in relevant part:
(2) The prosecuting attorney shall give notice of pending forfeiture by making reasonable efforts to serve a copy of the petition in a manner provided in section 712A-8(a) or 712A-8(b) on all persons known to have an interest in the property, together with instructions for...
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