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The Right to Public Access in the Courtroom Extends to Documents

Grube v. Trader (HSC June 5, 2018) Background. Honolulu Police Department Officer Alan Ahn and his girlfriend, Tiffany Masunaga, were indicted with multiple drug offenses. Ahn pleaded no contest, a rarity in Honolulu, and was sentenced to probation for four years with 60 days jail. The public records, however, reflect that Ahn’s case was still pending and does not show the change of plea and sentence. The circuit court held a subsequent hearing that started at 4:00 p.m. The record is unclear what happened at the hearing, but afterwards, the circuit court issued an order sealing the entire Ahn and Masunaga case. The order was later superseded by another order sealing only “those documents, court minutes, transcripts, and other information relating to the” 4 p.m. hearing. The circuit court vaguely referred to an ongoing investigation and the need for secrecy.
About a year later, NickGrube, a reporter for Civil Beat, filed a motion to unseal “whatever documents were sealed” based on the co…

Counsel Deemed Ineffective for Failing to Giving Defendant Discovery and Failing to Trying to Subpoena a Witness that Might have Asserted Privilege.

Batalona v. State (HSC March 19, 2018) Background. Albert Batalona, Sean Matsunaga, and Jacob Hayme were charged with bank robbery in federal court. The charges against Batalona were dropped and Matsunaga and Hayme were prosecuted with additional firearm charges. The State took on Batalona’s bank robbery case by way of indictment along with attempted murder in the first degree, and firearms offenses. In the meantime, Matsunaga and Hayme reached plea agreements in federal court. In a recorded statement, Matsunaga said that he had shot at the officer involved in the case.
At Batalona’s motions in limine, the prosecution reiterated that it would not be calling Matsunaga and requested that the recorded statement be excluded at trial. At trial the prosecution adduced evidence that in the middle of the day, Batalona, Matsunaga, Hayme, and Roger Dailey went into a bank with ski masks and firearms. They took $120,000 and left. Batalona and Matsunaga had AR-15s, Hayme had an AK-47, and Dailey ha…

Discharge of a Bail Bond Without Pending Charges Does not Exclude Rule 48

State v. Visintin (ICA February 20, 2018) Background. Shawn Visintin was charged with place to keep a pistol or revolver. He was initially arrested on the charge and on the same day posted a bond for bail. He was issued a bond receipt and a notice to appear in the circuit court. No charges were filed against him. On the date of his scheduled appearance, Visintin did not appear and no charges were initiated against him. The bond was discharged. Visintin went home to Montana. Eight months later, the prosecution indicted him of the charge and a warrant was issued for his arrest. Visintin returned from Montana, pleaded not guilty, and filed a motion to suppress the evidence and a motion to dismiss the charges for violating his right to a speedy trial and HRPP Rule 48.
At the hearing on the motion to suppress, Officer Brian Silva was on duty travelling on Kuhio Highway on Kauai in Kawaihau District. He testified that there had been “a lot of calls of burglaries and criminal activity.” At aro…

Counsel must ask Clients if They're Citizens

Najera v. State (ICA February 13, 2018) Background. Jorge Najera was born in Mexico and is a Mexican citizen. He moved to Hawaii with his uncle when he was ten years old. He married a United States citizen in 1999 and became a permanent resident alien in 2001 when he was twenty. He and his wife have four children. He was also charged with attempted methamphetamine trafficking in the first degree. Najera reached a plea agreement: in exchange for pleading no contest to the amended charge of promoting a dangerous drug in the first degree in order to seek probation instead of prison. At the change-of-plea hearing, the circuit court informed Najera that if he was not a citizen of the United States he could “possibly [be] looking at consequences of deportation, exclusion from admission to the United States, or denial [of] naturalization under the laws of the United States.” Najera told the court he understood. The change-of-plea form had similar language indicating he understood. The circuit…

The Delay Caused by Getting a Public Defender is not Excluded Under Rule 48

State v. Choy Foo (HSC March 16, 2018) Background. Quincy Choy Foo III was charged with sexual assault in the fourth degree. At his initial appearance Choy Foo appeared without a lawyer. The prosecutor handed him a complaint and the judge continued the case for three weeks. The judge referred Choy Foo to the Office of the Public Defender and told him to “call them right away for an appointment.” At the next hearing, Choy Foo appeared without a lawyer and informed the court that the public defender’s office told him to request a continuance. He said he made an appointment. The court continued the matter after the date of the scheduled appointment. At the third appearance, Choy Foo appeared still without a lawyer. He was told to request another continuance because the office was in training and had to reschedule. The continuance was granted. At the next hearing, Choy Foo was represented by a public defender.
Choy Foo moved to dismiss for violating his right to a speedy trial and in violat…

The Posthumous Execution of Extrinsic and Intrinsic Sentencing Factors

Flubacher v. State (HSC March 21, 2018) Background. Robert Flubacher pleaded guilty to multiple felony offenses in three separate cases. The prosecution filed a motion for extended terms of imprisonment prior to sentencing. The circuit court granted the motion and sentenced Flubacher to life imprisonment with the possibility of parole and other terms of imprisonment. He did not appeal. Judgment became final on October 13, 2003. Two years later he filed a petition pursuant to HRPP Rule 40 collaterally attacking the sentence and that was denied. In 2014 he filed a second petition alleging an unconstitutional sentence pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). The circuit court denied the petition. The ICA affirmed. Flubacher petitioned for certiorari.
The Long, Slow Death of Extrinsic and Intrinsic Factors in Hawaii. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” A…

When the Defense Stipulates to a Prior Conviction, the Court Cannot say no

State v. Souza (HSC May 30, 2018) Background. Tracy Souza was charged with place to keep an unloaded firearm other than pistols or revolvers, and the felon-in-possession of a firearm offense. Before trial, the court held a hearing. Both the prosecution and Souza proposed written stipulations about the prior felony conviction in the second charge. The parties did not agree as to which stipulation should be read to the jury. The circuit court maintained that because there was no agreement as to the stipulated language, the prosecution “would be perfectly within its right to call whatever witnesses they felt are necessary and relevant . . . to establish that element of a prior conviction.” The circuit court asked if Souza wished to do that or if he wished to accept the prosecution’s version of the stipulation. Souza objected, but ultimately stipulated to the prior conviction element and waived his right to have that element proven to a jury beyond a reasonable doubt.
At trial witnesses tes…