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On June 14, 2011, the Hawaii ICA issued its opinion in State v. Crabbe, No. 30353 (Summary Disposition Order- Unpublished, panel: Foley (presiding), Ginoza and Reifurth).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!