On July 25, 2011, the ICA issued its opinion in State v. Dominic Brooks, No. 30219 (7/25/11, Unpublished, ICA, (By: Foley, Presiding J., Fujise and Reifurth, JJ.)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.
Thursday, July 28, 2011
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.
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.
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.
Saturday, July 2, 2011
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.
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.
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.
Friday, July 1, 2011
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.
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.
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