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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…

Statements that were Never Raised at Trial Cannot be Presented during Argument

State v. McGhee (HSC June 21, 2017) Background. Jamal McGhee was charged with terroristic threatening in the second degree. HRS § 707-717(1). McGhee waived his right to a jury trial. At trial, Edithe Kearney testified that she owns the Alley Cat club on Oahu. She testified it’s a small place and the club does not get loud. One day, McGhee came in at around 2:00 a.m. He was upset at an Alley Cat employee at the front door. She testified that McGhee was yelling, screaming, and threatening everyone in the bar. He was saying things like he can “kill me, can beat me up, that sort of thing.” Keaney felt threatened by these remarks and called the police because he would not calm down. The police showed up, but by then McGhee was gone. On cross-examination, Kearney testified that she wasn’t actually afraid of McGhee. “I mean, I’m almost 70. I’m not afraid to be—if he wants to kill me, kill me.” The district court denied McGhee’s motion for judgment of acquittal. McGhee testified that he went t…

Confrontation Clause Trumps Prohibition of Immigration Status at Trial

State v. Acacio (HSC June 15, 2017) Background. Rainier Acacio was charged with terroristic threatening in the first degree and abuse of a family or household member. The complainant was his ex-girlfriend. At his jury trial, his ex-girlfriend testified that they were living together for two and a half years before breaking up. She testified that she still lived with him even though they were no longer in a relationship.
She testified that on New Year’s Eve, they hosted a party. After the party, while she was right outside the house, she received a call from Acacio, who was inside the house. They exchanged New Year’s greetings and the call ended. The party ended and the complainant went to her room to get ready for bed. Acacio came into her room, closed the door, and said he wanted to fix the relationship. She said that it was over between them and Acacio got “mad and emotional.” Acacio said he was going to kill himself. The complainant said, “go ahead, it’s not my fault.” Acacio left an…

When Building Trust turns to Custodial Interrogation

State v. Trinque (HSC May 25, 2017) Background. The Kauai Police Department got word of marijuana growing in a pasture in Kilauea. One night the officers were conducting surveillance when they found Rick Trinque and another in a pasture. They were arrested and handcuffed and sat on some rocks while KPD took pictures of them. As one of the officers escorted Trinque out of the pasture, one of them asked him how he got into the filed. He told them “he came over the fence by the banana tree using a ladder that was still located by the fence and that he was caught red handed.” Once out of the pasture, he sat on a bench handcuffed.
One of the vice officers was ordered to watch over Trinque. Lt. Richard Rosa was in plain clothes and had a badge around his neck. He had never met Trinque before. He identified himself to Trinque and told him that he was the officer that worked on his daughter’s case. (Trinque’s daughter went to the police and asked for their help because she believed that people …