89 Hawai'i 167, Office of Disciplinary Counsel v. Breiner
| Decision Date | 04 January 1999 |
| Docket Number | No. 21708,21708 |
| Citation | 89 Hawaii 167,969 P.2d 1285 |
| Parties | 89 Hawai'i 167 OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Myles S. BREINER, Respondent. |
| Court | Hawaii Supreme Court |
Brian C. Means, Assistant Disciplinary Counsel, (Carole R. Richelieu, Chief Disciplinary Counsel with him on the brief), for Petitioner Office of Disciplinary Counsel.
Michael Jay Green and David J. Gierlach, on the briefs, Honolulu, for Respondent Myles S. Breiner.
The Disciplinary Board has filed a report, pursuant to Rule 2.7(d) of the Rules of the Supreme Court of the State of Hawai'i (RSCH). The report, based upon a stipulation of facts and rules violations between the respondent Myles S. Breiner and the petitioner Office of Disciplinary Counsel, recommends that Breiner be suspended from the practice of law for a period of sixty (60) days.
We accept the stipulation of facts and rules violations. For the reasons set forth below, however, we suspend Breiner from the practice of law for a period of six (6) months. A separate suspension order is entered with this opinion.
Disciplinary Counsel and Breiner stipulated that Breiner violated Rule 3.5(c) of the Hawai'i Rules of Professional Conduct (HRPC) 1 four times during his representation of a criminal defendant, Raita Fukusaku. See State v. Fukusaku, 85 Hawai'i 462, 946 P.2d 32 (1997). In sum, Breiner failed to heed the trial court's admonitions regarding (1) argument during opening statements, (2) being argumentative with and disrespectful to a witness, and (3) twice making improper comments in the presence of the jury. The details of Breiner's behavior are set out below and in our opinion in Fukusaku, 85 Hawai'i at 483-485 & nn.17-20, 946 P.2d at 53-55 & nn.17-20.
The trial judge first cited Breiner for contempt of court after Breiner refused to desist from arguing during his opening statement. The record reflects that Breiner was stubborn, argumentative, sarcastic, and disrespectful; as illustrated by the following exchange:
Mr. Breiner, this is opening statement, not argument.
BREINER:
I'm not arguing, stating the facts.
You're arguing.
BREINER:
I'm not. I'm continuing. If you want to hold me in contempt, I apologize, I'm not arguing.
If you do it again, I'll hold you in contempt.
BREINER:
Have to face it, I'm not.
You're arguing.
BREINER:
I'm not. I'm stating facts they left off in the opening.
Not argument.
This is argument.
BREINER:
We can go over and over this, I stated at the outset what I would prove, that's what I'm doing.
Do not enter into argument. I've warned you, this is the last warning.
BREINER:
To what extent are you going to help the prosecution with this case?
No intention of helping either party. Proceed.
BREINER:
Seem to be helping, prosecution openly argued her case, you didn't admonish her.
You're afraid to object?
BREINER:
Afraid? That's beautiful.
Breiner then resumed his opening statement to the jury:
Shortly, in short, ladies and gentlemen, we will prove that in order to find Raita Fukusaku guilty you have to assume he did everything possible to make himself the suspect short of calling up Keith Kaneshiro [the Prosecutor] and saying I did it.
The deputy prosecuting attorney (DPA) objected and argued that Breiner was being argumentative again. The trial court agreed and, out of the presence of the jury, cited Breiner for criminal contempt.
The second instance of criminal contempt occurred after Breiner (1) was disrespectful to a prosecution witness, Kanthi De Alwis, M.D. (the medical examiner), during cross-examination of her and (2) addressed condescending remarks to the trial court:
BREINER:
Doctor, is there a problem answering yes or no to my responses?
DPA:
Objection, Your Honor.
BREINER:
Nonresponsive. Your Honor, self-serving responses to the jury. I'm asking for a yes or no response. Very simple.
DPA:
Your Honor, may we approach the bench, please.
BREINER:
What are you trying to conduct it from?
DPA:
Your Honor, may we approach the bench? I have an objection.
Counsel. Mr. Breiner. Approach the bench.
DPA:
Your Honor, the State's objection is that Mr. Breiner is being argumentative with this witness and he is not treating her with common courtesy. I have no problems with him asking questions per the area at issue. But for him to constantly interrupt here in the fashion that he's done at this point in time is--I think is inappropriate and does a disservice to this entire trial.
The next time you're disrespectful to this witness, I will find you in contempt of court. The next time you're disrespectful to this Court, I will find you in contempt.
BREINER:
Excuse me. Let's put it on the record so we understand something here. One, I take your comments as a threat.
You can take it whichever way you want.
BREINER:
Just for the record, you're threatening me? I will conduct myself as I see fit.
You do not see fit clearly, Mr. Breiner. I asked you continuously throughout these proceedings.
BREINER:
Excuse me. Can I place myself on the record without being interrupted? Thank you. You look like you're about to explode.
I'm not. You're the one who's going to suffer the consequences, Mr. Breiner. I am telling you, if you continue on like this, you force me to find you in contempt, and I will do so, Mr. Breiner.
BREINER:
I'm not asking you to find me in contempt, Your Honor. You see what she's doing? Apparently, I ask for a yes or no response to a yes or no question. Instead, she turns to the jury and starts giving these self-serving answers. I try to object to them; Counsel jumps up and starts making objections. I was still waiting for a ruling to my objection.
I will rule, and you will accept my ruling as I rule them. If you don't like them, you can take it up on appeal. Proceed.
After the foregoing exchange, Breiner continued crossexamining Dr. De Alwis:
BREINER:
Is it fair to say that that woman was beaten, rather severely?
No? All those injuries, is that a light beating? A medium beating?
DE ALWIS:
Pressure--You want me to go into detail?
BREINER:
I'm asking a simple question. I'm not asking you to describe pressure or compression or whatever, Doctor. I'm asking you a specific question. I asked you, is it fair to say the woman was beaten--just simply beaten. Yes or no.
Move to strike as nonresponsive, Your Honor. I asked a simple question, yes or no.
Doctor De Alwis, please just answer the question.
BREINER:
Can you answer the question, Doctor, yes or no. Was she beaten? I'll ask you the third time. Yes or no, was she beaten?
DE ALWIS:
Can you give me a little bit of time, please.
Counsel, give her the opportunity to answer the question.
BREINER:
I've only asked it four times.
DPA:
Objection. Counsel's commenting, Your Honor.
Mr. Breiner. We'll take a recess at this time.
After excusing the jury, the trial court cited Breiner for criminal contempt of court. The trial court noted that it had warned Breiner several times, both in court and in chambers, that the court had previously advised Breiner that it would instruct the witness if Breiner wished the court to do so, but that Breiner was continuing to defy the court's admonition. The trial court characterized Breiner's behavior as "disruptive, uncivil, [and] contemptuous." The trial court stated that it and everyone was "tired" of Breiner's behavior and "weary of [Breiner's] obvious disregard of the rules of conduct and [Breiner's] behavior in this courtroom."
The third instance of criminal contempt of court transpired when Breiner was cross-examining another prosecution witness, Calvin Mitchell Woods:
Just a minute. There's an objection.
BREINER:
I'm still asking the question.
She's interrupting--she's interrupting me intentionally to interfere with the flow of cross-examination and she knows that.
Mr. Breiner.
DPA:
Your Honor, may we approach?
During the ensuing bench conference, the trial court reminded Breiner that it had previously warned him about "this type of outburst," scolded Breiner for making improper comments before the jury, characterized Breiner's conduct as "disrespectful and disruptive," and noted that Breiner had "continually challenged [the] Court." The trial court again found Breiner in criminal contempt of court.
The fourth incident occurred when the trial court called for a bench conference during the DPA's direct examination of yet another witness, Julie Ann Cooper. While en route to the bench, Breiner muttered, in a tone loud enough for the jury to overhear, "I'm tired of this crap." The trial court cited Breiner for criminal contempt of court.
Although the Disciplinary Board's report and recommendation only address the incidents described above, the record that was before us in Fukusaku, of which we take judicial notice, reflects, inter alia, that Breiner also characterized the proceedings as a "kangaroo court" and then, pursuing the metaphor in a testy exchange with the trial court, explained that he was not a "marsupial."
Respondent Breiner and Disciplinary Counsel stipulated to four aggravating factors: (1) prior discipline (a public reprimand and a private informal admonition); (2) a pattern of misconduct; (3) multiple offenses; and (4) substantial experience in the practice of law. They also stipulated to three mitigating factors: (1) a cooperative attitude toward the disciplinary proceedings; (2) imposition of other penalties and sanctions; and (3) remorse.
The sole issue presented by this disciplinary case is...
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