Posts

The "New" Emergency-Aid Exception to the Warrant Requirement

State v. Wilson (ICA December 26, 2017) Background. Kevin Wilson was charged with terroristic threatening in the first degree through the use of a dangerous instrument. It stemmed from a 911 call by a third party reporting that a couple was having an argument in Kahaluu. After the call, officers were informed that the female was afraid and that the male had a knife.
When the police got to the house, two officers approached the front door and one officer, Jason Akiona, went to the back. At the front door, they saw Wilson inside and told announced their presence. Wilson told them to “get the #$%! away from my house.” The officers didn’t listen and opened the screen door and ordered Wilson to come out. Wilson complied, was patted down by the police, and no weapons were found.
As Officer Akiona went to the back door he heard a female crying. He called out to her, but there was no response. Upon learning that Wilson was out of the house, Officer Akiona went inside through the back door and ca…

Counsel's Duties Don't end after Dismissal (Without Prejudice)

Maddox v. State (HSC December 14, 2017) Background. The prosecution indicted Mickey Maddox with attempted escape in the second degree and promoting prison contraband. He was arraigned about four months later and pleaded not guilty. Trial was delayed for nearly two years and most of that time was waived by Maddox. On December 23, 2008, the circuit court granted Maddox’s motion to appoint new defense counsel. The order appointed counsel “at all stages of proceedings, including appeal, if any.” Counsel filed a motion to dismiss the indictment. The circuit court granted the motion and dismissed it without prejudice.
Two weeks later Maddox was indicted for the same charges again. On the same day the new indictment came down, Maddox filed a “Second Notice of Appeal” and a motion for new counsel pro se. In the motions, Maddox stated that he planned to appeal the order dismissing without prejudice and asked for new counsel. A few weeks later, Maddox filed a “Third Notice of Appeal” on the same …

Your Right to Record Cops on Duty and in Public

State v. Russo (HSC December 14, 2017) Background. Maui Police Department officers were conducting traffic surveillance on the side of Haleakala Highway. Thomas Russo stopped his vehicle on the road shoulder and started to record the officers on his phone. Russo first approached Officer John Fairchild. Officer Fairchild asked Russo to turn his hazard lights on. Russo says he can do that and starts walking back to his vehicle and turns his hazard lights on. Russo briefly talked to Officer Fairchild about slowing down traffic “all the way up to Haliimaile.” Officer Fairchild told him that they were pulling cars off the roadway into an area on the shoulder so Russo would have to “step off to the side.” Officer Fairchild said “I don’t want you to get run over.” Russo replied, “Okay.”
Russo next again approached the officers and walked past Officer Fairchild. He approached Officer Rusty Lawson, who was standing near a vehicle that had been stopped. As Russo neared him, Officer Lawson leaves …

If no Prelim in Two Days, the Defendant must (more or less) Always be Released

Moana v. Wong (HSC November 21, 2017) Background. This case is comprised of two cases that have been consolidated and address the same procedural issue. First, Si Ufaga Moana was arrested on June 20, 2017 for assault in the second degree. Two days later he was charged by way of a complaint of felony abuse of a household member. That same day, on June 22, Moana appeared in custody before the family court. The family court confirmed bail at $30,000 and set a preliminary hearing for June 26, 2017. On the day of the preliminary hearing, the prosecution moved to continue on the grounds that the complaining witness “absented herself” from the proceedings. The prosecutor represented that the complainant might be on the mainland and may be refusing to come, but was unsure. Moana moved to dismiss the complaint or, in the alternative, moved for supervised release. The prosecution opposed. The family court granted the continuance and denied Moana’s motions. The preliminary hearing had been contin…

Police in Helicopter a Search fah Marijuana

State v. Quiday (HSC November 21, 2017) Background. Honolulu Police Department officers got an anonymous tip that there was marijuana growing on a residential property in Waipahu. The officers conducted “aerial reconnaissance” of the suspected grow site in a helicopter at a height of 420 feet (no joke) and spotted 20-25 plants in the open air of the property along a wall. The officers drove by the house to see if the plants were visible from the street. They weren’t. The police checked the residence to see if it was a grow site for medical marijuana; it wasn’t. The officers did two more flyovers and saw the same thing: plants in pots along the wall of the property. Based on these observations, the officers applied for and got a search warrant of the property.
The day before the warrant was to be executed, police drove by the property and saw a man watering something along the wall. The next day the warrant was executed and police arrested Benjamin Quiday for possession of the plants. He…

Taking the Surprise out of Sentencing

State v. Sanney (HSC Sept. 20, 2017) Background. Yoshiro Sanney was indicted with one count of sexual assault in the second degree and attempted sexual assault in the second degree. Sanney was a homeless, unemployed veteran with a history of substance abuse and mental health issues. The offense arose when in broad daylight Sanney cut out the shorts of an unconscious homeless woman, performed cunnilingus and then attempted to have sexual intercourse with her. Prior to trial, Sanney’s attorney said that he would change his plea after learning that the judge was inclined to sentence him to probation with eighteen months jail. There were no agreements from the prosecution.
The circuit court held a change of plea hearing. At the hearing, Sanney made it clear on the record that his change of plea based on the court’s inclination for probation with up to 18 months jail. The circuit court, however, told Sanney that the inclination is not a promise and that the “inclination is only as good as th…

Pre-Arrest Silence Requires Miranda Warnings

State v. Tsujimura (HSC May 31, 2017) Background. Lester Tsujimura was charged with operating a vehicle while under the influence of an intoxicant. At trial, Officer Thomas Billins testified that he stopped Tsujimura on the Moanalua Freeway a little after midnight. He approached Tsujimura’s vehicle and asked him to get out of the car. Tsujimura complied. Officer Billins testified that he did not notice him having a hard time getting out of the vehicle. Before performing the field sobriety tests, Tsujimura told the officer that he had an old knee injury. According to Officer Billins, Tsujimura did not “pass” the tests. During trial, the prosecutor asked if Tsujimura told him anything about his knee as he got out of the vehicle. Tsujimura objected on the grounds that that was a comment on his right to remain silent. The trial court overruled the objection and allowed Officer Billins to testify that he said nothing about it. Tsujimura was found guilty as charged and the ICA affirmed.
Pre-A…