Tuesday, September 9, 2014
State v. Shimkus
Andrew E. Shimkus was arrested and convicted for OVUII. “On appeal, Shimkus challenges the District Court’s denial of his motion to suppress. Shimkus argues that: (1) because the police failed to give him Miranda warnings before reading the Implied Consent Form to him and obtaining his decision on testing, the results of his breath test should have been suppressed as the fruit of a Miranda violation; (2) the results of his breath test should have been suppressed because the police misinformed him of his statutory right to an attorney under HRS 803-9 (1993); and (3) the results of his breath test should have been suppressed because the police misinformed him of the sanctions for refusing to submit to testing.” The ICA noted that it had recently rejected the same arguments in State v. Won, No. CAAP-12-0000858, and, following Won, it affirmed Shimkus’ conviction. http://www.courts.state.hi.us/docs/opin_ord/ica/2014/May/CAAP-12-0000840sdo.pdf. On September 2, 2014, the Hawai’i Supreme Court accepted Shimkus’ Application for Writ of Certiorari of the Hawai’i Intermediate Court of Appeal's decision filed on May 24, 2014. If the Hawai’i Supreme Court reverses, it could have far-reaching implications for OVUII cases in Hawai’i. http://www.courts.state.hi.us/docs/opin_ord/sct/2014/September/SCWC-12-0000840certacc.pdf
State v. Tyrone Smith, Jr.
Yesterday, the Hawai'i Intermediate Court of Appeals issued its memorandum opinion in State v. Tyrone Smith, Jr., CAAP-12-0000583. In this case, I represented Mr. Smith on the briefs and also argued the case before the ICA on July 24, 2014. The ICA affirmed Mr. Smith's conviction, but did note that the police illegally seized Mr. Smith's bags from his room without his consent. In those bags were found a pack of Pall Mall cigarettes, the same brand the victim of the rape said were taken from her that night by her assailant. A copy of the decision can be found here: http://www.courts.state.hi.us/docs/opin_ord/ica/2014/August/CAAP-12-0000583mop.pdf
Wednesday, August 27, 2014
6/22/14: Hawaii Governor Signs 10 Bills Relating to Criminal Justice
Gov. Neil Abercrombie has signed 10 criminal justice-related measures (Acts 112 to 121) addressing sex abuse, prostitution, crimes against children, violation of privacy, domestic violence, property crime, human trafficking, parking violations and law enforcement misconduct. . . .
Senate Bill 2687 (Relating to Limitation of Actions) extends the period by an additional two years that a victim of child sexual abuse may bring an otherwise time-barred civil action against an abuser or entity with a duty or care, including the state and counties.
House Bill 2034 (Relating to Sexual Assault) removes the statute of limitations for criminal actions of sexual assault in the first and second degrees, as well as the continuous sexual assault of a minor under the age of 14.
House Bill 1926 (Relating to Crime) amends the offense of solicitation of a minor for prostitution and the offense of prostitution to include sadomasochistic abuse under the definition of sexual conduct, including clarification that a law enforcement officer shall not be exempt from the offense while acting in the course and scope of duties. This measure also amends the applicability of a deferred acceptance of a guilty or nolo contendere plea and clarifies sentencing of repeat offenders and enhanced sentences for repeat violent and sexual offenders.
Senate Bill 702 (Relating to Child Abuse), known as “Alicia’s Law,” establishes an internet crimes against children special fund and an internet crimes against children fee of up to $100 for each felony or misdemeanor conviction. Fees will be deposited into the special fund, which will be used by the Department of the Attorney General to combat internet crimes against children. This measure also appropriates $62,500 into the new special fund.
House Bill 1750 (Relating to Public Order) expands the offense of violation of privacy in the first degree to include the disclosure of an image or video of another identifiable person either in the nude or engaging in sexual conduct without the consent of the depicted person with intent to harm substantially the depicted person.
House Bill 1993 (Relating to Domestic Violence) requires a police officer to make a reasonable inquiry of witnesses or household members when physical abuse or harm is suspected and order a no-contact period of 48 hours. This measure also makes the commission of physical abuse in the presence of a family or household member under the age of 14 a class C felony.
House Bill 2205 (Relating to Crime) imposes a mandatory minimum term of one year imprisonment upon conviction of habitual property crime and authorizes probation only for a first conviction.
House Bill 2038 (Relating to Human Trafficking) establishes the human trafficking victims services fund to be administered by the Department of Labor and Industrial Relations to provide support and services to human trafficking victims. This measure also imposes human trafficking victim fees to be imposed upon persons convicted of labor trafficking and prostitution offenses.
House Bill 1706 (Relating to Illegal Parking Upon Bikeways) sets a fixed fine of $200 for parking a vehicle on a bicycle lane or pathway.
Senate Bill 2591 (Relating to Law Enforcement), requires additional information from county police departments in their annual report to the Legislature of misconduct incidents that resulted in the suspension or discharge of an officer. This measure also allows the disclosure of certain information regarding officer misconduct in cases that result in discharge, after 90 days have passed following the issuance of the decision.
Tuesday, August 13, 2013
Hawai'i Supreme Court addresses issue of unrequested mistake of fact instruction standard of review
Hello everyone! Legal work has kept me very busy, but I will try to update my blog on a regular basis, focusing on law and issues that concern criminal law in Hawai'i.
On August 2, 2013, the Hawai’i Supreme Court issued in its opinion in State v. Taylor, SCWC-30161. In that case, Justice McKenna authored the opinion of the court, holding:
“On the issue of how appellate courts are to review the impact of an unrequested mistake of fact jury instruction, denominated as error for the first time on appeal, we clarify and hold that such error is to be reviewed first for plain error. In the case of an unrequested mistake of fact jury instruction, plain error exists if the defendant, at trial, had met his or her initial burden to adduce credible evidence of facts constituting defense (unless those facts are supplied by the prosecution’s witnesses). . . . If the omission of the unrequested mistake of fact jury instruction constitutes plain error, it shall be a basis for reversal of the defendant’s conviction only if an examination of the record as a whole reveals that the error was not harmless beyond a reasonable doubt.”
Ms. Taylor was accused of holding herself out as an attorney and taking and cashing a retainer check for $7,000. The Hawai’i Supreme Court held that Taylor had not presented “credible” evidence that she was so mistaken as to the facts (that she was working for persons she believed were attorneys) as to negate her intent and thus satisfy the “mistake of fact” test. Further, even if there was such evidence, there was “no reasonable possibility that the omission of a mistake of fact instruction contributed to Taylor’s conviction.”
Justice Acoba filed a 56 page concurring and dissenting opinion. He notes, “This court has not previously been presented with the exact circumstances of the instant case, namely where a jury instruction as to a defense is unrequested at trial. However, . . . it logically follows that if any evidence is adduced at trial going to a particular defense that is weak, inconclusive, or unsatisfactory, the court must instruct the jury on that defense, even if the defendant does not request such an instruction.”
http://www.courts.state.hi.us/docs/opin_ord/sct/2013/August/SCWC-30161.pdf
http://www.courts.state.hi.us/docs/opin_ord/sct/2013/August/SCWC-30161con.pdf
Thursday, July 28, 2011
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.
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.
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.
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