Posts

Laches Can't Stop a Rule 40 Petition

Akau v. State (HSC March 5, 2019) Background. Timmy Hyun Kyu Akau was convicted for driving while under the influence of an intoxicant in 1987. Twenty five years later, in 2013, he petitioned the district court pursuant to HRPP Rule 40 to set aside the conviction. The district court held an evidentiary hearing to determine the merits of the petition.
At the end of the hearing, the district court issued its findings of fact, conclusions of law, and order denying the petition. The district court found that Akau was arrested and charged with DUI on July 26, 1987. Two days later he appeared in the district court, Ewa Division, and pleaded not guilty. He was referred to the Office of the Public Defender and trial was set on December 23, 1987. On the day of trial he appeared without counsel and asked for a continuance so he could get an attorney. The continuance as denied. He was found guilty and convicted. He was sentenced to pay a fine, take a class, and his license was suspended for 90 day…

The Flip Side of the Tachibana Coin

State v. Torres (HSC April 10, 2019) Background. Rinaldo Torres was indicted with robbery in the first degree and terroristic threatening in the first degree. Five days before trial, Torres submitted a form titled “Waiver of Indictment/Trial by Jury.” The form was signed by Torres and indicated a desire to waive his right to a jury trial and consent to a trial by the court without a jury. Prior to trial, the circuit court announced that Torres indicated that he wished to waive his right to a jury trial.
The circuit court questioned Torres in open court about this waiver. The judge asked if Torres signed the waiver form. Torres said he did. He asked if he went over the form with his lawyer. Yes, said Torres. He also asked if he understood the form. “I believe I did. Yeah.” The judge questioned Torres if he understood his right to a jury trial, the right to select a jury, the right to a unanimous verdict, and the right to question potential jurors. Torres said he understood. He also asked…

Gotti, Manson, and what not to do when Prosecuting

State v. Pasene (HSC April 22, 2019) Background. During the early morning hours of March 28, 2009, Iosefa Pasene, Cedro Muna, and Antonius Paul Toloai were released from custody. Pasene and Muna were dressed alike and had similar physical characteristics. At around 4:00 a.m., Joseph Peneuete and several others gathered outside of the Pauahi Recreational Center in Chinatown. A blue Buick sedan drove up to the group and stopped in front of them. Two men with guns moved to Peneuete and shot him several times. He died. Two hours later a blue Buick sedan was reported on fire just outside of Wahiawa. Pasene was indicted for murder in the 2d degree and carrying or using a firearm in the commission of a separate felony. He went to trial twice, but they resulted in hung juries and mistrials.
The prosecution’s theory was that Pasene was the killer and not Muna because Muna was in a taxi cab heading to the Plaza Hotel at the time of the shooting. Detectives also ruled out Muna after watching some …

48 + 0 = 48

State v. Otani (ICA February 28, 2019) Background. Suzanne Satomi Chin-Yin Otani was convicted of one count of operating a vehicle while under the influence of an intoxicant; better known as DUI. At her sentencing, Otani argued that she serve no jail despite the fact that at the time of the offense a minor was a passenger in the vehicle. This fact, countered the prosecution, triggered a mandatory 48 hours jail pursuant to the DUI statute. The district court agreed with the prosecution and imposed 48 hours jail. Otani appealed.
The OUI Statute’s Enhancements.The OUI statute contains an enhancement at sentencing:
In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hour…

Two Competing Theories in a Single Charging Instrument

State v. Yotokta (HSC September 5, 2018) Background. Eric Yokota was charged with five counts of forgery and one count of theft in the second degree based on fraudulently cashing five checks from the same bank account at the Pearlridge branch of the American Savings Bank. In the felony information it was alleged that Yokota cashed five checks over the course of six days. Each check did not arise to the felony-level threshold for theft but the grand total permitted a felony count. The prosecution charged Yokota with a single count of theft occurring over the six-day period and five distinct counts of forgery for each check on a specific day. Yokota moved to dismiss the charges. The motion was granted and the prosecution appealed. The ICA vacated the dismissal order. Yokota petitioned for certiorari.
Theft as a Continuing Course of Conduct. “An offense is committed when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the ti…

Prosecutors Cannot call People Liars (and Other Things they can’t do)

State v. Austin (HSC June 29, 2018) Part II. For Part I Click HERE. Background. Edith Skinner was an 89-year-old woman, who enjoyed swimming at the Elks Club in Honolulu. She lived alone at an apartment in Waikiki, which was generally restricted to low-income and elderly tenants. Skinner’s body was discovered on July 25, 1989. Her body was lying on top of the bed. There were no signs of a struggle within the apartment.
The doctor performing the autopsy on Skinner’s body concluded that Skinner suffocated as a result of manual strangulation. The doctor also recovered black or dark-colored pubic hair, which stood out from Skinner’s light-colored hair. The hair was preserved as evidence. Semen was also discovered in Skinner’s vagina. The case went cold after that.
In 2005, the fluid found on Skinner’s body was tested for its DNA and compared with a database. It found a match with Gerald Austin, a white male. Police got a warrant to search Austin’s body and took saliva samples from his mouth.…

Looking Beyond the Letter of the Law to Find Reliability

State v. Austin (HSC June 29, 2018) Part I. For Part II—the ProsecutorialMisconduct Analysis—Click HERE. Background. Edith Skinner was an 89-year-old woman, who enjoyed baking, playing bridge, and swimming at the Elks Club in Honolulu. She lived alone at an apartment in Waikiki, which was generally restricted to low-income and elderly tenants. Skinner’s body on July 25, 1989. Her body was lying on top of the bed. The bed was stripped of its covers, pillows, sheets, and comforters. There were no signs of a struggle within the apartment.
The doctor performing the autopsy on Skinner’s body concluded that Skinner suffocated as a result of manual strangulation. The doctor also recovered black or dark-colored pubic hair, which stood out from Skinner’s light-colored hair. The hair was preserved as evidence. Semen was also discovered in Skinner’s vagina.
A crime bulletin was issued without a composite sketch due to its inaccuracies. In the meantime, the pubic hair was sent to an FBI laboratory. …