State v. McKnight

Decision Date31 December 2013
Docket NumberNo. SCWC–28901.,SCWC–28901.
Citation131 Hawai'i 379,319 P.3d 298
Parties STATE of Hawai‘i, Respondent/Plaintiff–Appellee–Cross–Appellant, v. Robert J. McKNIGHT, Jr., Petitioner/Defendant–Appellant–Cross–Appellee.
CourtHawaii Supreme Court

Benjamin E. Lowenthal, Wailuku, for petitioner.

David M. Louie, Attorney General; Kimberly Tsumoto Guidry, First Deputy Solicitor General; Marissa H.I. Luning, Deputy Solicitor General, for respondents.

McKENNA, J., with whom RECKTENWALD, C.J., NAKAYAMA, and ACOBA, JJ., and Circuit Judge TRADER join.

OPINIONS OF THE COURT
INTRODUCTION

On July 24, 2006, Robert J. McKnight, Jr. ("McKnight") was charged via indictment with Count 1, Electronic Enticement of a Child in the First Degree, in violation of Hawai‘i Revised Statutes ("HRS") § 707–756 ("Electronic Enticement"), and Count 2, Promoting Child Abuse in the Third Degree, in violation of HRS § 707–752(1)(a). The charges were severed, and the State of Hawai‘i ("State") proceeded to trial on Count 1. After a jury trial in the Circuit Court of the Second Circuit ("circuit court"),1 McKnight was convicted of Electronic Enticement.

McKnight appealed his conviction for Electronic Enticement, and the State cross-appealed the suppression of certain evidence, including a statement made by McKnight after he was arrested and evidence seized from his residence pursuant to a misdated search warrant. Some of this evidence pertained to the untried charge of Promoting Child Abuse in the Third Degree. The Intermediate Court of Appeals ("ICA") affirmed McKnight's conviction and vacated the circuit court's suppression order.

McKnight raises three questions on certiorari, printed in the order addressed:

[1]. Did the ICA gravely err by disregarding the plain and unambiguous language of a criminal statute and holding that proof that the defendant used a computer or other electronic device was not part of each element of the offense?
2. Did the ICA gravely err in holding that Mr. McKnight waived his right to counsel after he asserted his constitutional and statutory rights and the police made no effort to find a lawyer, denied his right to contact his mother, and wanted to question him further?
[3]. Did the ICA gravely err when it created a new exception to Hawai‘i's exclusionary rule by holding that the use of evidence seized pursuant to an invalid warrant does not violate the right to be free from unreasonable searches, seizures, and invasions of privacy guaranteed by the Hawai‘i Constitution?

Pursuant to the analysis below, we affirm in part and vacate in part the ICA's Judgment on Appeal, and remand this case for further proceedings consistent with this opinion.

A. Factual Background

The charges against McKnight stemmed from an undercover investigation conducted by the Department of the Attorney General.

During the investigation, McKnight began communicating via internet chat with "Chyla Bautista" (" ‘Chyla’ "), a persona created by Special Agent Vincente Domingo ("Agent Domingo") of the Hawai‘i Internet Crimes against Children Task Force. "Chyla" identified herself as a fifteen-year-old girl on O‘ahu. Over the course of a month, McKnight communicated with "Chyla" via Yahoo!! Messenger ("Yahoo"), email, cellular telephone, and home telephone. During these conversations, McKnight discussed meeting with "Chyla" and performing sexual acts with her. He also emailed "Chyla" photographs of himself and displayed himself to "Chyla" masturbating via webcam.

On July 5, 2006, McKnight communicated with "Chyla" via Yahoo to discuss meeting her in person. McKnight purchased an electronic airline ticket and arranged to fly "Chyla" from Honolulu to Maui the following day. He provided "Chyla" with the flight information, told her that he would pick her up from the airport, and gave her a description of his car. On July 6, 2006, the Maui Police Department and the Hawai‘i Attorney General's Office observed McKnight's car entering Kahului Airport at the scheduled arrival time and placed McKnight under arrest for electronic enticement of a child.

At the Wailuku Police Station, Agent Domingo advised McKnight of his Miranda rights and asked him to complete a constitutional rights form (AG Form CR–1). McKnight stated that he wanted an attorney and initialled "Yes" next to a question that read "Do you want an attorney now?" Agent Domingo ceased the interview and left the room to confer with Agent Woletta Kim ("Agent Kim") regarding whether he could ask McKnight for a description of his residence. The agents, who intended to obtain a search warrant for the residence, concluded that such questioning was permissible because it did not involve interrogating McKnight about the case. Agent Domingo returned to the interview room minutes later with the intention of further questioning McKnight.

When Agent Domingo re-entered the room, McKnight asked to call his mother, but Agent Domingo denied the request.2 McKnight asked what was going to happen next, and Agent Domingo responded, "[W]e are going to do a search warrant on [your] residence."3 At that point, McKnight stated that he had changed his mind about giving a statement because he had not realized the severity of the crime.

As Agent Domingo began tape-recording their dialogue, however, McKnight again asked if he could call his mother. Agent Domingo responded that he could not promise anything, and it was entirely McKnight's decision whether he wanted to give a statement. The transcript reveals the following exchange:

ROBERT J. MCKNIGHT, JR.: .... Now, will—after this is done, will you allow me to call my mother?
SPECIAL AGENT DOMINGO: Again, I'm not going to promise you anything. [ ] If you want to give a statement or not, that's strictly up to you.... I can't promise you anything. There's no promises or guarantees, okay, at this stage.
ROBERT J. MCKNIGHT, JR.: Okay.
SPECIAL AGENT DOMINGO: Do you still want to talk to me?
ROBERT J. MCKNIGHT, JR.: Not unless I go let my mother know.
SPECIAL AGENT DOMINGO: Again, I can't promise you anything .... I can't say, okay, I will—I will let you do this if you give me a statement.... There's no promises, no guarantees. If you want to give me a statement—like you told me that, you know, you changed your mind because you didn't realize the severity of the crime, then fine. But, again, I can't promise you anything. You have got to tell me what you want to do, Robert.
ROBERT J. MCKNIGHT, JR.: Go ahead.
....
SPECIAL AGENT DOMINGO: Go ahead what?
ROBERT J. MCKNIGHT, JR.: Continue.

(Emphasis added).

When McKnight agreed to continue, Agent Domingo presented him with a second constitutional rights form, on which McKnight indicated that he did not want an attorney and that he wanted to give a statement. After McKnight completed this form, Agent Domingo proceeded to question McKnight about his conversations with "Chyla" and his intention to meet with her.

That afternoon, Agent Domingo prepared a search warrant for McKnight's residence and vehicle. He presented the warrant application and his affidavit to Judge Simone Polak of the District Court of the Second Circuit. After finding probable cause, Judge Polak signed the warrant, which authorized agents to search McKnight's residence and vehicle for evidence of Electronic Enticement, and to seize computers and electronic storage media (e.g., hard drives, modems, digital files, electronically stored records, computer programs, and photographic equipment). The warrant stated: "This warrant may be served and the search made on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]" In a clerical error, however, Judge Polak misdated the warrant as having been signed by her on June 6, 2006.4

Agents executed the search warrant that same day at McKnight's residence and seized, among other things, two computer hard drives, thirty-five floppy disks, and twenty-two DVDs. Subsequent imaging of the hard drives revealed approximately one hundred and fifty-five electronic images and two movies of suspected child pornography, archived files of conversations between McKnight and "Chyla," and graphic files of McKnight displaying his genitals.

B. The Charge and Trial

The Circuit Court of the Second Circuit granted McKnight's pretrial motions to suppress the statement he gave after invoking his right to counsel and evidence seized pursuant to the misdated search warrant ("Suppression Order").5 After its motion to sever the charges was granted, the State proceeded to trial on Count 1, Electronic Enticement in the First Degree, and appealed the court's Suppression Order as it related to Count 2, Promoting Child Abuse in the Third Degree.

At the conclusion of the trial on the Electronic Enticement charge, the court gave the following jury instruction, over McKnight's objections:6

In the indictment, Defendant Robert McKnight is charged with the offense of electronic enticement of a child in the first degree.
A person commits the offense of Electronic Enticement of a Child in the First Degree if he intentionally or knowingly uses a computer or any other electronic device to intentionally or knowingly communicate with another person, who represents that person to be under the age of eighteen years, with the intent to promote or facilitate the commission of Sexual Assault in the First Degree or Sexual Assault in the Third Degree, and intentionally or knowingly agrees to meet with another person who represents that person to be a minor under the age of eighteen years, and intentionally or knowingly travels to an agreed upon meeting place at an agreed upon meeting time.
There are five material elements of the offense of Electronic Enticement of a Child in the First Degree, each of which the prosecution must prove beyond a reasonable doubt.
These five elements are:
1. That on or about the 13th day of June 2006, to and including the 6th day of July, 2006, in the County of Maui, State of Hawaii, Defendant [ ] intentionally or knowingly used a computer or other
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