State v. Taylor, NO. SCWC-28904

CourtSupreme Court of Hawai'i
Writing for the CourtJames E. Duffy
PartiesSTATE OF HAWAI'I, Respondent/Plaintiff-Appellee, v. DANIEL TAYLOR, Petitioner/Defendant-Appellant.
Docket NumberNO. SCWC-28904
Decision Date15 December 2011

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
DANIEL TAYLOR, Petitioner/Defendant-Appellant.

NO. SCWC-28904

SUPREME COURT OF THE STATE OF HAWAI'I

Dated: December 15, 2011


***FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 28904; CR. NO. 07-1-0253)

RECKTENWALD, C.J., NAKAYAMA, DUFFY, AND MCKENNA, JJ.,
WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY

OPINION OF THE COURT BY RECKTENWALD, C.J.

In 2006, Daniel Taylor pled guilty in the United States District Court for the District of Hawai'i to conspiracy to traffic in Native American cultural items that were obtained in violation of the Native American Grave Protection and Repatriation Act (NAGPRA). The items were native Hawaiian artifacts that had been repatriated to Kanupa Cave on the island of Hawai'i, and that were subsequently taken from the cave by

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Taylor and an accomplice. Approximately a year later, a State of Hawai'i grand jury indicted Taylor for Theft in the First Degree in violation of Hawai'i Revised Statutes (HRS) §§ 708-830(1) and 708-830.5(1)(a), quoted infra, with regard to the same events. Taylor moved to dismiss the indictment on various grounds. The circuit court denied Taylor's motion,1 and Taylor appealed.

In the Intermediate Court of Appeals, Taylor argued, inter alia, that the evidence presented to the grand jury failed to establish that the artifacts were "property of another" as required under HRS § 708-830(1). Taylor further argued that his prosecution in state court was barred by HRS § 701-112, quoted infra, because he was previously convicted in federal court for conspiracy to traffic in Native American cultural items, i.e., the Kanupa Cave artifacts.

The ICA affirmed, holding that the evidence was sufficient to support the indictment and noting that "specification of the actual owner of the property for purposes of this theft charge is not required and only evidence that the property was not that of Taylor is required." State v. Taylor, No. 28904, 2011 WL 661793, at *9-10 (App. Feb. 23, 2011) (mem. op.). The ICA further held that HRS § 701-112 did not bar Taylor's theft prosecution, because theft in the first degree requires proof of facts not required for the federal conspiracy

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and trafficking offenses, and the primary purposes behind the state and federal offenses differed. Id. at *3-4.

In his application for a writ of certiorari, Taylor raises the following two questions:

1. . . . Does the State establish that an item is "property of another" simply by proving that the defendant did not own it, or must the State prove something more to establish that an item is an article of value that someone other than the defendant possesses or has some other interest in and therefore within the statutory definition of "property of another"?
2. . . . Does the offense of first-degree theft, as alleged against [Taylor] in this matter, require proof of a fact that the federal offense of conspiracy, as it was proven to convict [Taylor], did not require?

We conclude that the ICA erred in stating that "only evidence that the property was not that of Taylor [was] required" to establish that the artifacts were the "property of another." However, we hold that the State nonetheless presented sufficient evidence to the grand jury to find probable cause that the property taken was "property of another." We further hold that Taylor's prosecution in state court is not barred by HRS § 701-112 because the theft charge requires proof of a fact not required for his federal conspiracy offense, and the purposes behind the state and federal statutes differ. Accordingly, we affirm the judgment of the ICA.2

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I. Background

The following factual background is taken from the record on appeal, including a transcript of the grand jury proceeding and transcripts of the proceedings before the circuit court on Taylor's first motion to dismiss. The record also contains copies of documents from Taylor's federal prosecution, including the charging document, Taylor's plea agreement, and transcripts of proceedings before the federal district court.

A. Proceedings in federal district court

On March 24, 2006, the United States charged Taylor by information with Conspiracy to Traffic in Native American cultural items in violation of 18 United States Code (U.S.C.) § 371, quoted infra, and Trafficking in Native American cultural items in violation of 18 U.S.C. § 1170(b),3 which imposes

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sanctions for violations of NAGPRA, discussed infra.

That same day, the federal government filed a Memorandum of Plea Agreement (Plea Agreement) in which Taylor agreed to plead guilty to conspiring to sell, use for profit, and transport for sale and profit Native American cultural items, which were obtained in violation of 18 U.S.C. § 1170(b), in the time period "by and including June 2004."4 In exchange for Taylor's guilty plea, the federal government dismissed the trafficking charge against Taylor and agreed not to seek additional charges related to the taking and selling of Native American cultural items from about June 2004 through August 2004. Taylor was subsequently found guilty on the conspiracy count.

In the Plea Agreement, Taylor admitted the following facts, outlining "what happened in relation to the charge to which [Taylor pled] guilty:"

a. From a precise earlier date unknown but by and including June 2004, in the District of Hawaii, [Taylor] did knowingly and willfully conspire and agree with others both known and unknown, including with his co-defendant, JOHN CARTA, to commit offenses against the United States, namely, to sell, use for profit, and transport for sale and profit Native American cultural items obtained in violation of [NAGPRA], to wit: Native Hawaiian artifacts that had been repatriated and re-buried at Kanupa Cave located on the island of Hawaii, violations of [18 U.S.C. §§ 371 and 1170(b)].
b. In 2000, JOHN CARTA had a conversation with an individual identified by initials as M.F., who informed him of the existence of a cave containing

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Native Hawaiian artifacts. According to M.F., the cave was located on the Kawaihae side of the island of Hawaii.
c. Subsequently, but at some precise date prior to June 16, 2004, [Taylor] and JOHN CARTA agreed to find the cave with the understanding that they would sell any artifacts they discovered for a profit.
d. On or about June 16, 2004, [Taylor] and JOHN CARTA acted on their agreement to find the cave. On or about June 17, 2004, [Taylor] and JOHN CARTA obtained directions from M.F. and found the cave, later identified as Kanupa Cave. They pushed aside a rock sitting across the cave's entrance and entered. [Taylor] and JOHN CARTA discovered a number of items wrapped in woven lauhala baskets and black cloth. They unwrapped the items and determined they were Native Hawaiian artifacts, including items such as wooden bowls, a gourd, a holua sled runner, a spear, kapa, and cordage. Several of the artifacts contained labels indicating they belonged to the J.S. Emerson Collection, which was a collection of artifacts taken from Kanupa Cave in the late 1800's and sold to museums, including the Bishop Museum in Honolulu, Hawaii. These items were repatriated and re-buried at Kanupa Cave in November 2003.
e. [Taylor] and JOHN CARTA removed approximately 157 artifacts from Kanupa Cave.
f. [Taylor] sold or attempted to sell artifacts obtained from Kanupa Cave for a profit as follows:
(i) On or about June 17, 2004, [Taylor]
contacted a collector and attempted to sell to that collector a palaoa taken from Kanupa Cave for $40,000.
(ii) On or about June 26, 2004, [Taylor] sold a piece of kapa from Kanupa Cave to a tourist for $150.
(iii) On or about July 11, 2004, [Taylor] sold a fisherman's bowl and cover taken from Kanupa Cave to a collector for $2,083.
iv. [sic] On or about July 13, 2004, [Taylor] had posted for sale on the internet a kupee taken from Kanupa Cave for $5,600.
g. [Taylor] knew the artifacts belonged to the J.S. Emerson Collection. To conceal the fact that some of the artifacts belonged to a well-known collection, [Taylor] removed the J.S. Emerson Collection labels from these artifacts.

On June 12, 2007, the federal district court filed its

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judgment, adjudicating Taylor guilty and sentencing him to, inter alia, eleven months of imprisonment followed by one year of supervised release.

B. Proceedings in circuit court

1. Grand jury proceedings

On May 23, 2007, the State sought a grand jury indictment against Taylor for Theft in the First Degree in violation of HRS §§ 708-830(1)5 and 708-830.5(1)(a).6 The State presented the testimony of one witness: Abraham Kaikana, a special agent with the Office of the Attorney General. Agent Kaikana testified that he had reviewed reports from both the state and federal investigations in Taylor's case, interviews from the federal investigation, and Taylor's memorandum of plea agreement with the federal government. Agent Kaikana also testified that he interviewed various individuals in relation to Taylor's case.

With regard to the artifacts, Agent Kaikana testified that a surveyor named Joseph Swift Emerson "was shown Kanupa Cave at one time in the 1800s and he took artifacts out of that cave

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...

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