ICA affirms conviction for burglary and theft

On July 25, 2011, the ICA issued its opinion in State v. Dominic Brooks, No. 30219 (7/25/11, Unpublished, ICA, (By: Foley, Presiding J., Fujise and Reifurth, JJ.) Appeal from the Circuit Court of the Third Circuit, Hon. Elizabeth A. Strance, presiding). Julie Kai Barreto, Esq. for Defendant-Appellant and Linda L. Walton, Deputy Prosecuting Attorney for Plaintiff-Appellee County of Hawai’i.

Defendant was found guilty of burglary and theft. Defendant raised many issues on appeal, some of which include (and were resolved) as follows:

-The circuit court did not abuse its discretion when it allowed evidence of Brooks's threats made towards Stuck because it "is well-established that evidence of threats or intimidation is admissible under Rule 404(b) to show a defendant's consciousness of guilt.”

-Brooks contends he was "prevented from attacking prosecuting witness Joshua Stuck's bias, interest, and motive arising from his status as a felony probationer, on grounds that HRE Rule 404(b) required prior notice of such an attack." Brooks also contends the circuit court abused its discretion when it denied his requests to ask Stuck about possible drug use at the time of the robbery or at the time Stuck made his statements. The circuit court did not prohibit Brooks from asking Stuck about Stuck's felony probation due to a lack of prior notice under HRE Rule 404(b); the circuit court denied Brooks's requests because "the balance of [Brooks's] proposed questions are –- the prejudice outweighs the probative value."

-The circuit court found "in its discretion that the balance of trying to establish some sort of bias under 609.1 is met by the limitations expressed." . . . The circuit court did not abuse its discretion when it limited Brooks's cross-examination of Stuck to any possible plea agreement with the State.

-Brooks did not present any evidence that (a) Stuck was using drugs near or at the time of the incident, (b) Stuck was using drugs near or at the time he made his statements, or (c) such alleged drug use affected his perception or recollection at the time of the incident or at the time he made his statements. Therefore, the circuit court did not abuse its discretion when it denied Brooks's request to question Stuck about possible drug use.

-Defense Counsel did not lay a proper foundation because she did not establish that [witness] was familiar with Patricia's reputation for truthfulness. Therefore, the circuit court did not err when it sustained the Prosecutor's objection based on lack of foundation.

-Brooks contends the circuit court, under HRE Rule 613(b), should have allowed him to introduce Patricia's asset and debt statement from her divorce. Rule 613(b) provides in relevant part: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless, on direct or cross examination, (1) the circumstances of the statement have been brought to the attention of the witness, and (2) the witness has been asked whether the witness made the statement. . . . The circuit court did not abuse its discretion when, under HRE 608(b), it refused to admit the statement into evidence. Defense Counsel did not try to admit the statement into evidence under HRE 613(b). Furthermore, Brooks did offer to redact the statement, and most of it was irrelevant.

Affirmed.

ICA affirms in part and reverses in part multiple counts of convictions

On July 19, 2011, the ICA issued its opinion in State v. Palmer, No. 30418 (7/19/11, Unpublished, ICA- Summary Disposition Order, by: Nakamura, Chief Judge, Leonard and Ginoza, JJ.) This was an appeal from the Circuit Court of the Second Circuit, Honorable Joseph E. Cardoza presiding. On the briefs were Deputy Public Defender Phyllis Hironaka, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for Deputy Prosecuting Attorney for Plaintiff-Appellee.

After a jury trial, Palmer was found guilty of the following offenses: Unlawful Imprisonment in the First Degree (Imprisonment 1) (Count 1); Terroristic Threatening in the First Degree (TT1) (Count 2); Abuse of Family or Household Member (Household Abuse) (Count 3); and Assault in the Third Degree (Assault 3) (the lesser included offense of Count 4).

On appeal, the ICA held:

Evidence was presented that Palmer "restrained," or "restrict[ed]" Complainant's "movement in such a manner as to interfere substantially with" her "liberty . . . [b]y means of force . . . [or] threat," as required under HRS § 707-700, by touching the knife to the side of Complainant's neck, at her throat. There was substantial evidence that the circumstances "expose[d]" Complainant "to the risk of serious bodily injury," as set forth in HRS § 707-721, including that Palmer's holding the knife against the side of Complainant's neck created a substantial risk of death, § 707-700, especially considering the testimony that he contemporaneously threatened to kill her, and that he had been drinking and flinging a knife, which he then stuck into the kitchen cabinet.

Evidence was also adduced that Palmer would not allow Complainant to leave the small master bathroom -- where he pushed her about a dozen times, including at least three times into the wall and once into the bathtub, hurting her side, and whacked her head against a door, causing her to lose one of her porcelain crowns.

In addition, the State presented evidence that Palmer had locked and taken the only key to the deadbolt on the front door, refused entry to the police, and called Complainant his "hostage." This was sufficient to support a conviction for unlawful imprisonment in the first degree.

The ICA also concluded that the Circuit Court erred by failing to instruct the jury that if it found Palmer guilty of both Household Abuse and Assault 2 or Assault 3, the jury must determine whether the State had proven beyond a reasonable doubt that the offenses did not merge. . . . The State conceded that the Circuit Court erred in failing to give a merger instruction and has indicated its election that Palmer's Assault 3 conviction be dismissed.

Held: The ICA vacated the Circuit Court's judgment, in part, and remand this case to the Circuit Court for the dismissal of Count 4, with prejudice, and for the entry of an amended judgment and sentence consistent with this summary disposition order. In all other respects, we affirm.

ICA affirms violation of restraining order conviction

On July 19, 2011, the ICA issued its opinion in State v. Moore, No. 3000 (7/19/11, Unpublished, ICA, Summary Disposition Order, by: Foley, Presiding Judge, Leonard and Ginoza, JJ.). This was an appeal from the Family Court of the First Circuit, Hon. Patrick Border, presiding. On the briefs were Linda C.R. Jameson, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Stephen Tsushima, Esq. for Plaintiff-Appellant.

Defendant was convicted of violating a temporary restraining order. He raised numerous issues, including:

A. The defense did not object when the complainant made references to another "incident" and to another "case" while testifying at trial. No objection made at trial, so reviewed for plain error.

The complainant's first reference to another incident occurred during direct examination by the State. In explaining how she reported the incident with Moore at the bus stop, the complainant testified she first tried to call 911 on the day of the incident, then contacted the prosecutor's office the following Monday, and finally went to the police station located in Honolulu. The prosecuting did solicit any more information about this incident and the family court did not commit plain error by not striking the reference to this other incident and not issuing a cautionary instruction.

The complainant's second reference, this time to another "case," was made during cross-examination by defense counsel. The line of questioning dealt with whether the complainant, who is not a U.S. citizen, was seeking permanent citizenship under the Violence Against Women Act (VAWA). The defense's theory of the case was that the complainant was falsely accusing Moore because she wanted to gain citizenship pursuant to the VAWA, and thus her testimony about another case with her immigration attorney is relevant to this theory. The complainant's reference to the other case was brief and did not contain any specifics. No plain error in not striking the reference to a second case and not issuing cautionary instructions.

Moore also asserts that it was error for the family court to admit into evidence Defense Exhibit D, an email that the complainant sent to people she knew requesting supporting letters for her immigration application for a U-visa under the VAWA. Because this exhibit was central to the defense's theory of the case, the family court did not commit plain error by admitting it.

B. Moore argues that he was denied effective assistance of counsel because his trial counsel failed to object to the complainant's testimony regarding the "other incident" and the "other case," and further, his trial counsel admitted Defense Exhibit D into evidence.

In the instant case, Moore fails to meet his burden in establishing how the complainant's two fleeting references to a separate incident and another case led to either the withdrawal or substantial impairment of any meritorious defense. Rather, evidence that the complainant reported another incident to the police or that she had another case with her immigration attorney were both consistent with the Defendant’s theory of the case.

Additionally, trial counsel's decision to enter Defense into evidence, including the third page, was part of strategy in presenting the defense's theory that the Exhibit D the trial complainant was making the allegations against Moore to obtain a visa under the VAWA. Here, defense counsel sought to challenge the complainant's motive in accusing Moore and utilized complainant's email to demonstrate her alleged motive and did not arise to ineffective assistance of counsel.

C. Finally, Moore takes issue with the following remarks of the deputy prosecutor: "We heard a lotta testimony from [the complainant] yesterday and then today. I think bottom line [she] has absolutely no motive to lie. She has no motive . . . to make up a story that there has been a violation of a temporary restraining order." (Emphasis added). Here, the deputy prosecutor's comment was addressing the defense's theory of the case (i.e., that the complainant made up the incident at the bus stop to obtain citizenship under the VAWA). “Although prosecutors should refrain from stating personal opinions during closing arguments, the single use of the phrase "I think" in this case does not rise to the level of misconduct.”

Affirmed.

Department of Justice urges SCOTUS to block execution of Mexican National

ICA rejects appeal alleging error for failure to provide special jury instruction for eyewitness identification

On June 27, 2011, the Hawai’i Intermediate Court of Appeals issued its decision in State v. Cabagbag, No. 30682 (Summary Disposition Order- unpublished, panel: Foley, Presiding Judge, Reifurth and Ginoza, JJ.) This is an appeal from the Circuit Court of the First Circuit, Hon. Karen S. S. Ahn, presiding. Appearing on the briefs were Deputy Public Defender James S. Tabe, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Stephen K. Tsushima, Esq. for Plaintiff-Appellee.

Defendant was convicted by a jury of Unauthorized Control of a Propelled Vehicle. On appeal, Defendant contended that the Circuit Court committed plain error by failing to provide a special jury instruction regarding eyewitness identification and that a "cautionary jury instruction" regarding eyewitness identification "should be required" in any case in which eyewitness identification is a critical issue.

In rejecting Defendant’s arguments, the ICA held: “The opening statement by defense counsel, the cross-examination of Officer Tomimbang, defense counsel's closing argument, and the general instructions given by the Circuit Court adequately directed the attention of the jury to the identification evidence.”

Affirmed.

ICA dismisses appeal for failure to file opening brief

On June 27, 2011, the Hawai’i Intermediate Court of Appeals issued an order dismissing the appeal in Cooper v. State, NO. 30375. In this order, the ICA noted that after filing his appeal, Defendant had failed to file an opening brief, despite being given an extension to do so. Defendant had subsequently been warned that his failure to file an opening brief could result in dismissal, but Defendant had failed to file said brief or request relief from default. Appeal dismissed.

ICA affirms Circuit Court ruling that double jeopardy did not prohbit criminal prosecution in Kauai reservoir breach manslaughter case

On June 23, 2011, the Hawai’i Intermediate Court of Appeals entered its opinion in State v. Pflueger, Nos. 30369 & 30419 (Memorandum Opinion-unpublished, panel: Foley, Presiding J., Fujise and Reifurth, JJ.). This was an appeal from the Circuit Court of the Fifth Circuit, the Hon. Randal G.B. Valenciano presiding. The parties were represented by William C. McCorriston (David J. Minkin and Becky T. Chestnut with him on the briefs) (McCorriston Miller Mukai MacKinnon LLP) for Defendant-Appellant and Mark J. Bennett, Special Deputy Attorney General (Girard D. Lau and Kimberly Tsumoto Guidry, Deputy Attorneys, with him on the briefs) for Plaintiff-Appellee.

Defendant was an owner of property on which a water reservoir was located. The primary issue in this case was whether Defendant’s prior conviction for violating a grading ordinance concerning this reservoir in 2003 prohibited the State from prosecuting Defendant for Manslaughter in 2008 for deaths resulting from reservoir’s breach.

In holding that double jeopardy did not apply, the ICA made the following points:

• “The alleged illegal act of covering the spillway in 1997-98 and not subsequently uncovering it is not the same act as illegally grading another section of the property sometime between February and December 2002. The act of modifying the water systems is also not the same act of illegal grading that constituted the 2003 conviction. Hence, the acts the State intends to use to prove the conduct element of the Manslaughter charges are separate from the act used to prove the conduct element of the 2003 conviction, and double jeopardy is not invoked.”

• Under the "same conduct" test, prosecution of the 2008 Manslaughter charge is barred by double jeopardy if the acts for which Defendant was prosecuted in 2003 are the same acts that will be used to prove the 2008. Here, the ICA held that “there is no danger that the State, in 2003, was using that illegal grading prosecution to pinpoint inadequacies in preparation for its 2008 Manslaughter case because in 2003, the dam had not been breached and there had been no deaths.”

• The ICA also rejected the Defendant’s contention that there was insufficient evidence for the grand jury to return a true bill. The ICA noted that evidence was presented to the grand jury that could show that the Defendant “acted with a conscious disregard of a substantial and unjustifiable risk that death could result.” Thus, the circuit court did not abuse its discretion when it found "sufficient evidence to support the grand jury's finding of probable cause for the offense of Manslaughter."

• The ICA also rejected Defendant’s contention that the Manslaughter statute was impermissibly vague. “In the instant case, the Manslaughter statute puts one on notice that it is a violation of the statute to commit any conduct in conscious disregard of the substantial risk of another person's death. The statute is not void for vagueness.”

Affirmed.

ICA affirms Wal-Mart harassment conviction

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Martins, CAAP-10-0000016 (Summary Disposition Order- unpublished, panel: Fujise, Presiding Judge, Leonard and Ginoza, JJ.). Appeal from the District Court of the Fifth Circuit, Hon. Honorable Laurel Loo presiding. On the briefs were Charles A. Foster, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Tracy Murakami, Esq.

The complaining witness (CW) testified that as he was walking from Wal-Mart using his cane, Defendant, driving a moped, stopped and waited for him. The two men argued, and the CW testified that Defendant grabbed CW’s cane and threw it away.

“In closing argument, the . . . State argued that McCoy had the cane in his hand when it was ripped out, such that it was an offensive touching meant to harass, annoy or alarm McCoy. The defense argued that ‘the State hasn't shown that [Martins] intended to harass, annoy and alarm by taking the cane." Rather, the defense asserted, there was a mutual confrontation, McCoy was waving his cane, and Martins took the cane and threw it in an attempt at self-protection.’” The Judge found the Defendant guilty of harassment but not guilty of assault.

Defendant argued for the first time of appeal that the complaint was insufficient. Defendant did not suggest that the wording of the Complaint prejudiced him, but contended that the Complaint "cannot within reason be construed to charge a crime.” Under the circumstances of this case, the ICA held that Complaint could be reasonably construed to charge the crime of Harassment and Defendant was adequately informed of the charge against him. Affirmed.

ICA affirms speeding conviction

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Lalonde, No. 30482 (Summary Disposition Order, panel: Nakamura, C.J., Fujise and Reifurth, J.J.) This is an appeal from the District Court of the First Circuit, ‘Ewa Division, the Hon. David W. Lo, presiding. Briefing attorneys were Deputy Public Defender Kainani C. Collins, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Anne C. Clarkin, Esq. for Plaintiff-Appellee.

Defendant was convicted of excessive speeding. Defendant first argued that the trial court erred in denying his discovery requests for numerous items and information concerning laser gun calibration. The trial court ordered that Defendant was to be “able to review and make one copy of certain pages of the ‘Marksman (trainee) manual’ and the ‘LTI Ultralyte operator (user) manual,’” but denied the other requests. The ICA rejected Defendant’s claim of error, noting that Defendant was able to cross-examine State’s witness using the ordered disclosures and Defendant was unable to show the information sought to be obtained in the denied discovery requests was "material" to the accuracy of the laser unit's reading.

Defendant next attacked the admission of the laser readings and the sufficiency of the evidence. The ICA held: “Based on the testimony regarding Officer Frank's training and experience and of his operation of the laser unit, we conclude the district court did not err in admitting the laser unit's reading and in finding [Defendant] guilty of excessive speeding.” Affirmed.

ICA issues published opinion clarifying mens rea requirements in OVUII complaints

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Nesmith, NO. CAAP-10-0000072 (Published opinion written by Nakamura, C.J., panel: Nakamura, Reifurth, J. with Foley, J. concurring separately). This is an appeal from the District Court of the First Circuit, Hon. Paula Devens presiding. On the brief were Timothy I. McMaster, Esq. for Defendant-Appellant and Delanie D. Prescott-Tate, Esq. for Plaintiff-Appellee.

Defendant was charged with operating a vehicle under the influence of an intoxicant, a violation of HRS § 291E-61. Appellant argued that the complaint charging the offense was insufficient because it failed to allege a specific mens rea (mental element of the crime), namely that he committed the offense “intentionally, knowingly or recklessly.”

A person can commit a violation of HRS § 291E-61 in four ways. The complaint in this case alleged Defendant violated the law two of these ways- by being “under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty” and/or driving “with .08 or more grams of alcohol per two hundred ten liters of breath.”

The ICA held that the statute defining the charged OVUII offense, HRS § 294E-61 (Supp. 2009), does not specify a required state of mind. In regard to the “.08” charge, the ICA held that an HRS § 291E-61(a)(3) violation is an absolute liability offense that does not require proof of mens rea. Because violation of HRS § 291E-61(a)(3) is an absolute liability offense, the State was not required to allege any mental state in charging Defendant with OVUII in violation of HRS § 291E-61(a)(3).

In respect to violation of an “impairment” charge, mens rea is not an essential element of that violation and can be inferred from the allegations in the complaint. The referenced allegations in the complaint and the nature of the charged offense are sufficient to imply and connote that Defendant committed the charged OVUII offense intentionally, knowingly, or recklessly. Accordingly, the complaint was sufficient to charge Defendant with OVUII in violation of HRS § 291E-61(a)(1).

Judgment affirmed.

Justice Foley’s concurrence was simply: “I concur in the result. The charge was sufficient under State v. Wheeler, 121 Hawai'i 383, 219 p.3D 1170 (2009).”

Note- On June 14, 2011, the ICA came to similar conclusion in State v. Pai, No. 30516 (ICA- Unpublished Summary Disposition Order. Panel: Foley, Reifurth and Ginoza).

Department of Justice changes eligibility for pretrial diversion to include defendants having a history of substance abuse

From Richard Anderson, Federal Defender of the Northern District of Texas:

The Eligibility Criteria for the DOJ Pretrial Diversion Program was updated
in April 2011.  The disqualifier for having a history of substance abuse
(alcohol or drugs) has been removed.

The four disqualifiers are now --

The U.S. Attorney, in his/her discretion, may divert any individual against
whom a prosecutable case exists and who is not:

1.      Accused of an offense which, under existing Department guidelines,
should be diverted to the State for prosecution;

2.      A person with two or more prior felony convictions;

3.      A public official or former public official accused of an offense
arising out of an alleged violation of a public trust; or

4.      Accused of an offense related to national security or foreign
affairs.

See
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/22mcrm.htm#9-22.100/s/Jeff

New US Supreme Court case gives Defendants the right to confront blood-alcohol analysts that certify reports

On June 23, 2011, the Supreme Court of the United States issued its decision in Bullcoming v. New Mexico, No. 09-10876. In Bullcoming, the Supreme Court held that a defendant has the right to confront the analyst who certified a blood-alcohol analysis report, and that such a report was testimonial within the meaning of the Confrontation Clause.

Bullcoming was arrested for aggravated driving under the influence of intoxicating liquor. The principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample.

While Bullcoming's appeal was pending before the New Mexico Supreme Court, the SCOTUS decided Melendez–Diaz. In that case, the Massachusetts courts had admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. Those affidavits, the Court held, were ‘testimonial,’ rendering the affiants ‘witnesses' subject to the defendant's right of confrontation under the Sixth Amendment.

Despite Melendez-Diaz, the New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst's in-court testimony. Instead, New Mexico's high court held, live testimony of another analyst satisfied the constitutional requirements.

The SCOTUS, by a 5-4 vote, reversed. In writing for the majority, Justice Ginsburg included the following points:

• The case of Crawford v. Washington held that fidelity to the Confrontation Clause permitted admission of “[t]estimonial statements of witnesses absent from trial ... only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Melendez–Diaz, relying on Crawford's rationale, refused to create a “forensic evidence” exception to this rule.

• The SCOTUS settled in Crawford that the “obvious reliability” of a testimonial statement does not dispense with the Confrontation Clause. “Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’”

• In short, when the State elected to introduce [the analyst’s] certification, [the analyst] became a witness Bullcoming had the right to confront.

ICA affirms suppression of evidence in intoxicated driving case

On June 21, 2011, the Hawai’i Intermediate Court of Appeals entered its opinion in State v. Sereno, No. 30468 (Summary Disposition Order- unpublished, panel: Fujise, Presiding J., Leonard and Reifurth, JJ.). This case is an appeal from the District Court of the Second Circuit, Wailuku division, Hon. Kelsey T. Kawano presiding. On the briefs were Deputy Prosecuting Attorney Kristen L. Coccaro, Esq. for Plaintiff-Appellant and Matthew Nardi, Esq. for Defendant-Appellee.

Defendant was operating an automobile that was struck by another vehicle and, as a result, Defendant’s vehicle collided with a house. Defendant was arrested for operating a vehicle under the influence of an intoxicant. Prior to trial, Defendant filed a motion to suppress all evidence obtained as a result of Defendant’s arrest because of lack of probable cause to make the arrest. The trial court granted this motion.

On appeal, the State challenged many of the findings of fact and conclusions of law entered by the trial court in making its decision. Applying the “clear error” test to factual determinations made by the court in deciding pretrial motions and the “right/wrong” test to determinations of law, the ICA did find various errors. These errors, however, did not rise to a level of requiring reversal.

The ICA noted that as to the ultimate conclusion of whether probable cause existed for the arrest, the factors that were reasonable for the officer to consider in his determination of probable cause were Defendant's admission of drinking, the odor of an alcoholic beverage, red, watery eyes, and flushed facial features. Based on these factors, the ICA agreed that insufficient probable cause existed for the arrest. Affirmed.

ICA affirms assault conviction but remands for resentencing

On June 21, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Kang, No. 30656 (Summary Disposition Order- unpublished. Panel: Nakamura, CJ., Fujise and Ginoza, JJ.). This was an appeal from the District Court of the First Circuit, the Hon. Faye M. Koyanagi, presiding. On the briefs were Chad D. Enoki, Esq. for Appellant-Defendant and Stephen K. Tsushima, Esq. for Appellee-State.

Defendant was found guilty of Assault in the 3rd Degree, a petty misdemeanor. Defendant first alleged on appeal that the State had failed to disprove his claim of self-defense. The ICA disagreed, noting the testimony of the complaining witness that Defendant had head butted and otherwise assaulted him on the night in question. The prosecution disproves a claim of self-defense beyond a reasonable doubt when, essentially, the trier of fact believes its case and disbelieves the defense. Here, the district court believed the State's case and disbelieved Defendant's assertion of self-defense.

Defendant next argued that the trial court erred in admitting evidence of his arrest for harassment that occurred a month before the alleged assault. The ICA noted that this evidence was admitted for the limited purpose of rebutting Defendant’s argument that his injuries were a result of the confrontation with the complaining witness on the night in question. The ICA held that when other-crimes evidence is introduced for a limited purpose, it is presumed that the trial judge considered it only for that purpose, and overruled this argument.

Defendant finally argued that the district court erred by not addressing him prior to sentencing and providing him with an opportunity to make a statement or present information in mitigation of punishment. The State agreed that this was a reversible error. The ICA held that Defendant was not provided an opportunity to make a statement or present information in mitigation of punishment and the required remedy was remand of the case for resentencing before a different judge.

Affirmed in part, vacated in part.

ICA affirms denial of nonconforming petition for post-conviction relief

On June 21, 2011, the Hawai'i Intermediate Court of Appeals issued its opinion in Tierney v. State, No. 30635 (Summary Disposition Order- unpublished, panel: Foley, Presiding J., Fujise and Ginoza, JJ.). This was an appeal from the circuit court of the First Circuit, Hon. Richard Perkins, presiding. On the briefs were Michael Tierney, Appellant-pro se, and Delanie D. Prescott-Tate, Esq. for Appellee-State.

Appellant was convicted of a criminal offense and filed a petition for habeas corpus. The circuit court filed these document as a “Nonconforming Petition for Post-Conviction Relief” and sent Appellant forms requiring that he provide “adequate information” to evaluate Appellant’s claims. Appellant failed to timely do so, and the circuit court dismissed Appellant’s petition. Appellant appealed, alleging he was not provided “meaningful access” to the circuit court to protect his Constitutional rights and asked the ICA to review his case on the merits.

The ICA declined to do so, noting the circuit court was empowered to dismiss the petition under HRPP Rule 40(e) because Appellant failed to clarify the petition after being given an opportunity to do so. Order dismissing appeal affirmed.

ICA dismisses appeals for failure to pay filing fees

On June 21, 2011, the Intermediate Court of Appeals issued orders dismissing the appeals in State v. Shine, NO. CAAP-11-0000113 (unpublished) and State v. Shine, NO. CAAP-11-0000114 (unpublished). These were appeals from the District Court of the Second Circuit.

Appellant filed notices of appeal in these respective cases, but failed to pay the filing fee or request an order to allow Appellant to proceed in forma pauperis in either case. The court clerk advised the Appellant of these matters and of the relevant deadlines in both cases. The ICA held that since no filing fee had been tendered and since no motion requesting Appellant be allowed to proceed in forma pauperis had been filed in either case, the Appeals were dismissed.

ICA affirms denial of third Rule 40 petition

On June 21, 2011, the Hawaii Intermediate Court of Appeals issued its decision in Stanley v. State, CAAP-10-0000070 (Summary disposition order- unpublished, panel: Nakamura, CJ, Foley and Reifurth, JJ). This case was an appeal from the Circuit Court of the First Circuit, the Hon. Michael D. Wilson, presiding. On the briefs were Charles Anthony Stanley, pro se, and Delanie D. Prescott-Tate, Esq. for Appellee-State.

Defendant was convicted of robbery in the second degree and a direct appeal. After his criminal appeals were denied, he filed three petitions for post conviction relief that were also denied. The present case concerned the denial of the third petition, and alleged numerous procedural and substantive errors.

In denying Defendant’s appeal, the ICA held:

(1) The Complaint alleged the robbery occurred in the City and Count of Honolulu. Because “proof that an event occurred in the City and County of Honolulu or on the Island of Oahu is proof that it occurred within the first judicial circuit,” the circuit court did not lack subject matter jurisdiction.

(2) Because a charge of Robbery in the Second Degree which does not define the term "force" is readily comprehensible to a person of common understanding, the charge against Stanley was not insufficient, and the circuit court did not lack jurisdiction to enter a judgment of conviction for Robbery in the Second Degree.

(3) Because Stanley did not prove the existence of extraordinary circumstances to justify his failure to raise subject matter jurisdictional issues in his direct appeal or two prior HRPP Rule 40 petitions, relief is not available pursuant to HRPP Rule 40. Decision of the circuit court affirmed.

ICA dismisses Rule 40 Petition for Lack of Appellate Jurisdiction

On June 16, 2011, the Hawai'i Intermediate Court of Appeals rendered its decision in Abordo v. State, No. 30254 (Summary Disposition Order- unpublished, panel: Nakamura, CJ, Fujise and Leonard, JJ). Appeal from the Circuit Court of the First Circuit, Hon. K. O. Lee, presiding. On the briefs were Edmund Abordo appearing pro se and Lisa Itomura, Esq. and Diane K. Tiara, Esq. for Appellee-State.

After conviction, Defendant filed a Petition for Post-Conviction Relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure. The case was transferred to the Court Clerk, who assigned the case a new civil designation. Defendant subsequently filed a motion requesting relief in this civil case, but the motion apparently was treated as a new claim and assigned its own civil case number. This motion was denied in the second civil cause, and Defendant appealed.

The ICA noted that the order denying relief was filed in the second case, which still had pending claims to adjudicate. Thus, “there was no final, appealable order” stemming from the first case, and the ICA lacked appellate jurisdiction. Appeal dismissed.

ICA affirms harassment conviction

On June 16, 2011, the Hawai'i Intermediate Court of Appeals (ICA) issued its opinion in State v. Tapanan, No. 30445 (Summary Disposition Order-unpublished, panel: Nakamura, CJ, Fujise and Ginoza, JJ). This was an appeal from the Circuit Court of the First Circuit, Hon. Darryl Y.C. Choy presiding. On the briefs were Deputy Public Defender Melinda K. Yamaga, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Anne K. Clarkin, Esq. for State-Appellee.

Following a bench trial, Defendant was convicted of Harassment, in violation of HRS § 711-1106(1)(a). Defendant first alleged the trial court’s finding of fact that the investigating officers testified “truthfully” was impermissibly inconsistent with it's findings that the officers did not do “a thorough investigation” and did not “follow up very properly.”

The ICA rejected this argument, noting that the trial court considered “the entire package of what happened that day” in holding the crime of harassment had occurred. The sole factual error concerned the length of time the alleged victim had been asked to stay away from his home. This error was deemed to not have affected Defendant’s “substantial rights and was harmless error. Hawai'i Rules of Penal Procedure, Rule 52(a).”

Defendant further argued that the evidence was insufficient to support her conviction. In viewing the evidence in the light most favorable to the prosecution, the ICA rejected this argument, noting the existence of testimony of numerous officers supporting the charge, “as well as the photographs of injuries” to the alleged victim. Conviction affirmed.

ICA holds trial court did not abuse it's discretion in denying Act 44 probation

On June 16, 2011, the ICA issued its opinion in State v. Enos, No. 30653 (Summary Disposition Order- unpublished, panel: Nakamura, C.J, Furise and Ginoza, JJ). This case was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto presiding. On the briefs were Jennifer D.K. Ng, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for the State-Appellee.

Defendant pled guilty to two drug charges, and, pursuant to the plea agreement, was “free to ask for sentencing under Act 44 (HRS 706-622.5) and the State was free to oppose it.” HRS § 706-622.5 gives the court discretion to sentence certain first-time drug offenders to probation provided the person meets specified criteria. Defendant’s criminal history contained numerous convictions, however, and the Court declined to give a probationary sentence. Defendant was sentenced to ten years and five years in the respective counts, to be served concurrently.

On appeal, the ICA rejected Defendant’s argument that the Court erred in finding him to be violent, noting that Defendant had been convicted of such crimes such as terroristic threatening and assault. The ICA held that without a finding that Defendant was “non-violent,” Defendant would not qualify for probation under Act 44, and the trial court did not abuse its discretion in refusing to grant said probation. Affirmed.

ICA affirms domestic assault conviction

On June 16, 2011, the ICA issued its opinion in State v. Pierre-Louis, No. 30566 (Summary Disposition Order- Unpublished, panel: Leonard, Presiding Judge, Reifurth and Ginoza, JJ). The case was an appeal from a conviction from the First Circuit Court, Hon. Edward Kubo, Jr., presiding. On the briefs were Nelson W.S. Goo, Esq. for Defendant-Appellant and Brian Vincent, Esq. for the State-Appellee.

Defendant was convicted of Abuse of Family and Household Member in violation of HRS § 709-906 and sentenced to two years probation, credit for two days served and a small fine.

On appeal, Defendant first alleged numerous evidentiary errors committed by the Court in disallowing evidence of the alleged victim’s prior drug use and lying about such use. In rejecting Defendant’s arguments, the ICA noted that while lying about drug use “is probative of the witness' untruthfulness[,]” the court “cannot conclude the trial court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice in concluding that the prejudice outweighed the probative value of the evidence.”

Defendant next argued that the evidence was insufficient to support his conviction. The ICA disagreed, noting the evidence introduced at trial showing that the Defendant had placed his hands on and injured the alleged victim.

Defendant also alleged his trial lawyer’s performance fell beneath the proper standard of care and was thus ineffective. This argument was rejected by the ICA as “speculative” and objected to tactical decisions that “normally will not be questioned by a reviewing court." The conviction and sentence were affirmed.

ICA affirms concurrent, enhanced sentences

On June 16, 2011, the Hawaii ICA issued its opinion in Gomes v. State, No. 30617 (Summary Disposition Order- unpublished, panel: Nakamura, C.J., Reifurth and Ginoza). This was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto, presiding. The State-Appellee was represented by Richard Minatoya, Esq. and the Appellant represented him self pro se.

Defendant was found guilty of first-degree sexual assault and manslaughter and was sentenced to concurrent extended sentences. Defendant appealed, in part alleging that his sentence was invalid because the enhancement statute in place at the time of his conviction (HRS 706-662) was later ruled to be unconstitutional in State v. Maugaotega, 115 Hawai'i 432 (2007).

In rejecting this argument, the ICA noted that Maugaotega “does not apply retroactively to Gomes’s collateral attack of his extended term sentences.” Further, despite Maugaotega’s holding that 706-662 was unconstitutional, the Hawai’i Supreme Court held in State v. Jess 117 Hawai’i 381 (2008) that subsequent legislative action “clearly endorsed the empanelment of juries to make the requisite extended term findings[.]” Thus, 706-662 may be constitutionally applied when a jury, not a judge, determines whether an enhanced sentence was “necessary for [the] protection of the public.”

The Gomes panel concluded: “The supreme court's holding in Jess, that the former version of HRS § 706-662 may be judicially modified and constitutionally applied, definitively establishes that the former version of HRS § 706-662, under which Gomes was sentenced, is not void ab initio.” The appeal was denied.

ICA affirms conviction for second degree robbery

On June 14, 2011, the Hawaii ICA issued its opinion in State v. Crabbe, No. 30353 (Summary Disposition Order- Unpublished, panel: Foley (presiding), Ginoza and Reifurth). This was an appeal from the Circuit Court of the First Circuit, Hon. Dexter D. Del Rosario, presiding. Defendant-Appellant was represented by Anosh H. Yaqoob, Esq., and the State-Appellee was represented by Brian R. Vincent, Esq.

In Crabbe, the Defendant was convicted of robbery in the second degree, and raised several issues on appeal.

First, Defendant argued that the trial court failed to instruct the jury on the lesser-included offense of theft in the fourth degree. The ICA disagreed, noting that even if the Court had erred in not giving this instruction, such an error was harmless as “the jury convicted Crabbe of the charged offense of Robbery in the Second Degree.”

Next, Defendant alleged that the trial judge erred in refusing to continue the trial to allow Defense counsel to interview a prosecution witness and by denying Defendant’s request for a new trial. In rejecting this argument, the ICA noted that “Crabbe had made no attempt to contact the prosecution witness prior to trial, refused the court’s offer of a recess to allow defense counsel to speak with the witness, was able to cross-examine the witness at trial, and fails to show how interviewing the witness prior to trial would have aided his defense. Assuming arguendo there was error, it was harmless.” The conviction was affirmed.

Tapia v United States

From Peter Wolff, Federal Public Defender, District of Hawaii:

"Today, the Supreme Court decided Tapia v. United States, No. 10-5400, holding that a district court may not impose or lengthen a term of imprisonment in order to promote the defendant's rehabilitation.  In an opinion written by Justice Kagan, the Court breezes through the familiar sentencing "story line" to demonstrate that 18 USC 3582(a), which sets forth the "factors to be considered" when a court orders imprisonment, precludes district courts from considering rehabilitation for purposes of determining whether to impose a term of imprisonment or to lengthen the term of imprisonment.  Put another way, "when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation --- because imprisonment is not an appropriate means of pursuing that goal."  This conclusion is supported by the text of 3582(a), its context in the SRA (including 28 U.S.C. 994(k), a directive to the Sentencing Commission), and its legislative history.  End of story.  Because the judge in this case considered the defendant's need to participate in RDAP when imposing a term of imprisonment at the top of the guideline range (note that the holding applies to both within-guideline sentences and sentences above the guidelines), the Court reversed the decision of the Ninth Circuit.  (Justice Sotomayor, joined by Justice Alito, concurred but wrote separately to express skepticism that the district judge actually considered the defendant's rehabilitative needs in choosing the term of imprisonment.)"

ICA holds that failure to specify state of mind in OVUII charge not deprive trial court of subject matter jurisdiction

On June 14, 2011, the ICA issued its opinion in State v. Pai, No. 30516 (ICA- Unpublished Summary Disposition Order. Panel: Foley, Reifurth and Ginoza). This case is an appeal from District Court of the First Circuit, Honolulu Division, Hon. William Cardwell presiding. Briefing attorneys were Timothy I. McMaster, Esq. (Pai) and Anne E. Clarkman, Esq. (State).

In Pai, Defendant was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), a violation of HRS § 291E-61(a)(1). On the day of trial, Pai filed a Motion to Dismiss, alleging that the charging document failed to allege the requisite state of mind necessary to commit the crime, thus failing to state an essential fact and give adequate notice of the charge. This failure, Pai alleged, deprived the District Court of subject matter jurisdiction.

The ICA affirmed, holding:

• OVUII determined by alcohol content is an “absolute liability” offense. The HRS § 702-204 requirement that the State must prove a defendant acted with the requisite state of mind does not “apply to a crime outside the penal code where a legislative purpose to impose absolute liability plainly appears[.]”
• There is no such legislative intent for OVUII determined by impairment. It is therefore not an “absolute liability offense” and the state of mind requirements under HRS § 702-204 apply. Because OVUII does not specify a requisite state of mind, “the state of mind is intentionally, knowingly or recklessly[.]”
• This is a separate issue from whether the charging instrument adequately gives a defendant notice of the charges against him. Here, the charging document was adequate as “state of mind is not an ‘element’ of a criminal offense.” Further, OVUII is a “general intent” crime, and the state of mind can be inferred without specification in the charge.

ICA overturns conviction for excessive speeding violation

On June 9, 2011, the Hawaii Intermediate Court of appeals issued an unpublished summary disposition order in State v. Eid, No. 29587. In Eid, the Defendant was convicted of excessive speeding (30 mph over the posted speed limit) in the District Court of the First Circuit, Kaneohe Division, Hon. David W. Lo presiding. On appeal, the Defendant argued that his conviction should be set aside as the State failed to adequately lay a foundation for the admission of the "speed check card" and speedometer reading for the officer's squad car.

The ICA agreed, noting that the state had failed to lay the requisite predicate as set out in State v. Fitzwater, 122 Hawai’i 354 (2010) for the admission of such evidence. "In particular, the State failed to prove ‘the manufacturer of the equipment used to perform the check[,]’ . . . insofar as only the manufacturer of the "master head" and not the entire speed check testing assembly referred to as "the dynamometer," was established." In the absence of evidence that Defendant was going 30 mph over the speed limit, the conviction could not stand. However, there was sufficient evidence to prove the lesser-included offense of noncompliance with speed limit.

Dissenting, Chief Judge Nakamura noted that the State had introduced extensive evidence showing that the machinery in question was in good working order. Further, the observed speed of the Defendant was high enough that the margin of error would have established Defendant’s speed being in excess of 30 miles per hour over the posted speed limit. Judge Nakamura stated that the Fitzwater factors were applicable "where a manufacturer's instructions for using the device and for training exist and the device is sufficiently complex that it is necessary for such recommendations to be followed to properly operate the device." However, Judge Nakamura believed that when manufacturer's recommendations do not exist, or the individuals using the device have sufficient training and expertise to operate it, an absence of said recommendations should not prohibit the state from establishing an adequate foundation.

Setser v. United States

Big news! My good friend Jason Hawkins of the Federal Defenders of the Northern District of Texas is going to the "big show" to argue for his client before the SCOTUS. Today, the Supremes granted Jason's writ of certiorari in Setser v. United States, No. 10-7387. In that case, the Court will decide whether a district court has the authority to order a federal sentence to run consecutive to an anticipated, but not-yet-imposed, state sentence. Congratulations Jason!

New email scam uses Big Island's County logo.

From the 6/11/11 Honolulu Star Advertiser website:

Scam involves official-looking ‘police' emails

Big Island police are warning the public about an email scam that uses the county's logo and other information, such as a picture of a police officer, to mimic official letterhead. A Kauai woman received several emails as part of a scam attempting to obtain large sums of money from her, Hawaii County police reported.

The emails contained a photo of a Hawaii County police officer, a Police Department logo and other information that had been taken from the Hawaii Police Department's website in an apparent attempt to mimic official letterhead and impersonate a police officer. "The Hawaii Police Department does not contact the public in this manner," said Big Island Deputy Chief Paul Ferreira. "If you receive an email like this, please do not respond to it. Instead, report the incident to police immediately." The Kauai Police Department also is investigating the incident.

Justices Scalia and Thomas have rare disagreement

It has been reported that from 1994 to 2004, United States Supreme Court Justices Antonin Scalia and Clarence Thomas voted the same way 87.4% of the time, the highest percentage on the Court. In Sykes v. United States, No. 09-11311, decided June 9, 2011, these two justices showed one of their rare disagreements.

In Sykes, the Court addressed whether a prior conviction for "felony vehicle flight" met the criteria for a prior "violent felony" under the Armed Career Criminal Act (18 USC 924(c)), and therefore could be a basis for a 15 year mandatory minimum offense. The Supremes held that it did, by a vote of 6-3.

Concurring in the result, Justice Thomas first rejected majority's complex test for determining a proper prior "violent felony" under the Armed Career Criminal Act. Justice Thomas next argued that in an ordinary case, the proper question was whether the the underlying conviction involved conduct that presented a serious potential risk of physical injury to another. In this case, Thomas felt it did.

Dissenting, Justice Scalia recited the series of recent cases the Court has decided trying to determine what prior convictions satisfy the ACCA, and reasoned, "we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home." Believing this statute to be unconstitutionally vague, Scalia noted, "Of course . . . repetition of constitutional error does not produce constitutional truth." That is a quote that will likely be cited in appellant briefs for the next century!