84 Hawai'i 229, State v. Soto

• Decision Date: 28 February 1997
• Docket Number: 18704,Nos. 18673,s. 18673
• Parties: 84 Hawai'i 229 STATE of Hawai'i, Plaintiff-Appellant, v. Sara SOTO, also known as Sarah Soto, Sara Chavez, Sara Toral and Sarah Toral, and Kathy Hughes, Defendants-Appelles.
• Court: Hawaii Supreme Court

Page 66

933 P.2d 66

84 Hawai'i 229

STATE of Hawai'i, Plaintiff-Appellant, v. Sara SOTO, also known as Sarah Soto, Sara Chavez, Sara Toral and Sarah Toral, and Kathy Hughes, Defendants-Appelles.

Nos. 18673, 18704.

Supreme Court of Hawai'i.

Feb. 28, 1997.

[84 Hawai'i 231] Donn Fudo, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellant State of Hawai'i.

Dana S. Ishibashi, on the briefs, Honolulu, for defendant-appellee Sara Soto.

Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellee Kathy Hughes.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Judge.

In these consolidated appeals, the plaintiff-appellant State of Hawai'i (the prosecution) appeals the First Circuit Court's (1) findings of fact (FOFs), conclusions of law (COLs), and order, filed on December 19, 1994, granting in part the defendant-appellee Sara Soto's motion to dismiss the grand jury indictment

                [84 Hawai'i 232] returned against her (Order No. 1) and (2) FOFs, COLs, and order, filed on December 8, 1994, granting Soto's motion for reconsideration of the circuit court's order denying her motion to dismiss Count II of the indictment (Order No. 2).  In this appeal, we are asked to answer two questions of first impression in this jurisdiction:  (1) were certain allegedly confidential communications between Soto and her attorney, which Soto claims were protected by the attorney-client privilege, improperly invaded by a confidential informant who overheard them, thus entitling Soto to suppression of all testimony of and evidence obtained by the confidential informant regarding the communications;  and (2) after the Hawai'i Penal Code (HPC) was amended in 1986 and 1987, is the offense of criminal solicitation to commit first degree murder, in violation of Hawai'i Revised Statutes (HRS) §§ 705-510 (1993) 1 and 705-512 (1993), 2 a felony punishable by a mandatory sentence of life imprisonment with the possibility of parole?   Because we answer both questions in the negative, we (1) reverse the circuit court's Order No. 1 granting, in part, Soto's motion to dismiss, (2) modify the circuit court's Order No. 2 dismissing Count II of the indictment without prejudice, and (3) remand this case to the circuit court for further proceedings consistent with this opinion
                

I. BACKGROUND

On October 20, 1993, an O'ahu grand jury returned a three-count indictment against Soto in Cr. No. 93-2594, charging her with promoting a dangerous drug in the first degree in violation of HRS § 712-1241(1)(b)(ii)(A) (1993) (Count I), ³ criminal solicitation of first degree murder in violation of HRS §§ 705-510, see supra note 1, and 705-512, see supra note 2 (Count II), and criminal conspiracy to commit promoting a dangerous drug in the first degree, allegedly with her codefendant, Kathy Hughes, in violation of HRS § 705-520 (1993) (Count III). ⁴

The manner in which the circuit court interpreted the events giving rise to the indictment in Cr. No. 93-2594 and construed certain penal statutes is at the heart of this appeal. The relevant facts, gleaned from the During the late 1980s or early 1990s, Eric Lau, who was Hughes's biological father, began working as a confidential informant for the Honolulu Police Department (HPD). Lau's responsibility entailed gathering evidence for cases "involving organized crime and target[ing] individuals involved in gambling, narcotics, extortion or some kind of organized crime." Lau's HPD supervisor was Detective David Brown.

[84 Hawai'i 233] transcripts of the hearings on Soto's motions, establish the following background.

In 1991 or 1992, Hughes introduced Lau to Soto, who was Hughes's lover. Eventually, Soto and Hughes moved from Honolulu to Los Angeles, where they maintained intermittent contact with Lau.

Lau testified that, when he first met Soto, she informed him of certain criminal charges pending against her in Hawai'i in Cr. No. 90-0212. With respect to these charges, Soto allegedly advised Lau that there was a particular witness, Jerry Lewis, whom she was looking for somebody to "take ... fishing and never come back." Lau eventually relayed this information to Detective Brown. In response, Detective Brown instructed Lau to "further the discussions in regards to the murder-for-hire case."

The criminal charges pending against Soto in Cr. No. 90-0212, which were unrelated to the present appeal, arose out of charges of attempted promoting a dangerous drug in the first degree and criminal conspiracy. Reinette Cooper was appointed as defense counsel to represent Soto in the case. Cooper filed a motion to suppress evidence on Soto's behalf, and hearings were scheduled for March 24 and 27, 1992. Detective Brown instructed Lau to attend the hearings to "find out the results" of the motion and to reestablish contact with Soto. Apparently, Detective Brown believed that, in the event Soto lost the motion to suppress in Cr. No. 90-0212, it would be imperative to ascertain Soto's subsequent efforts, if any, to locate "the witness against her and have him killed." Lau attended the hearing on Soto's motion and sat in the first row behind the defense table. At the conclusion of the hearing, the circuit court denied Soto's motion to suppress, and Lau left the courtroom with Cooper, Soto, and Hughes and followed them into the adjoining hallway.

The testimony is unclear as to precisely what transpired in the hallway. Although she could not recall the specifics of her conversation with Soto, Cooper testified that they generally "discuss[ed] what we had to do now ... that the motion was denied, ... how the trial would be pursued[,] ... and what the various options would have been." Cooper considered the conversation to be, "I guess, privileged," insofar as she was "not in a habit of telling the prosecutors or the police what me and my client are planning." Cooper recalled, at the time, seeing "Lau with his head being in there, you know, around [Soto] and [Hughes] and I."

For her part, Soto testified that

[Cooper] was always concerned ... that I should consider a plea bargain, ... all the time asking me that I should consider a plea bargain. I always told her no, ... I would not consider a plea bargain because I'm not guilty about it and I wanted the case to go to trial.... [W]e were discussing who we would bring more or less to the trial because we had gone to trial on it prior.

Soto emphasized that she had not been aware that Lau was a confidential informant and that she had not knowingly waived the privileged character of her conversation with Cooper. In this connection, Soto testified that she had not consented to Lau standing next to her, that Hughes had "tried to move her father [i.e., Lau] away," but that Lau had "insisted on being there."

On the other hand, Lau testified that, following the conclusion of the hearing, "I was going out and they came up to me. And I believe at that time [Soto] introduced me to Cooper." Lau also testified that, although he was not certain as to the source, it was Soto who had remarked to Hughes that "we got to work hard now." ⁵ Other than this remark Finally, Detective Brown testified that Lau had not provided "any information regarding what Cooper was going to do in the future in terms of her legal representation of ... Soto." In an attempt to clarify his testimony, Detective Brown stated that Lau had not recounted anything that Cooper, Soto, or Hughes had said to him, but, rather, what Lau had heard Hughes say to others.

[84 Hawai'i 234] and a comment by Soto that "she'd call" him later, Lau did not recall anything else of substance that either Cooper or Soto had said.

A year and a half later, on October 20, 1993, the grand jury returned the three-count indictment--Cr. No. 93-2594--against Soto and Hughes that is at issue in this appeal. Specifically, the indictment charged as follows:

COUNT I: On or about the 23rd day of October, 1991, in the City and County of Honolulu, State of Hawaii, SARA SOTO ... did knowingly distribute one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more, containing cocaine or any of its salts, isomers, and salts of isomers, thereby committing the offense of Promoting a Dangerous Drug in the First Degree, in violation of Section 712-1241(1)(b)(ii)(A) of the Hawaii Revised Statutes.

COUNT II: On or about the 1st day of July, 1991, to and including the 26th day of March, 1992, in the City and County of Honolulu, State of Hawaii, SARA SOTO, ... with intent to promote or facilitate the commission of a crime, to wit, Murder in the First Degree, did command, encourage or request another person to engage in conduct or cause the result specified by the definition of the offense of Murder in the First Degree, Section 707-701(1)(c), which is to intentionally or knowingly cause the death of a person known by Sara Soto ... to be a witness in a criminal prosecution, or to engage in conduct which would be sufficient to establish complicity in the specified conduct or result, thereby committing the offense of Criminal Solicitation, a felony, the penalty for which is a mandatory sentence of life imprisonment with possibility of parole, in violation of Section[s] 705-510 and 705-512 of the Hawaii Revised Statutes.

COUNT III: On or about the 5th day of August, 1991, to and including the 12th day of December, 1991, in the City and County of Honolulu, State of Hawaii, Defendant co-conspirator SARA SOTO ... (hereinafter "Defendant Soto"), and Defendant coconspirator KATHY HUGHES (hereinafter "Defendant Hughes"), with the intent to promote or facilitate the commission of a crime, to wit, Promoting a Dangerous Drug in the First Degree, did enter into a conspiracy in a manner defined by Hawaii Revised Statutes Section 705-520, by agreeing with one or more persons that they or one or more of them would engage in or solicit the conduct or would cause...