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Surveillance Videos Aren't all that Technical, says ICA

State v. Luke (ICA April 17, 2020)Background. Alik Luke was tried for attempted burglary in the first degree, burglary in the first degree, and unauthorized possession of confidential personal information. The charges stem from the break-in of two residences: the Yamamotos and a residence occupied by Kyle Shimoda. At trial, the prosecution wanted to surveillance footage from the Yamamotos’ surveillance cameras which allegedly revealed Luke in the backyard and footage from Shimoda showing a person entering the property and leaving with a suitcase. Luke was also arrested and told the police that he did not know anything about the suitcase, just saw a battery in a backyard, and “something about cousin Jeff at a storage locker.” The circuit court determined this statement was inadmissible at trial.At trial, Yamamoto testified that he and his wife are the only ones with access to the recorded data on his video surveillance cameras. They can access it from either their computer or mobile de…

Unjustifiable Warrantless Arrest Invalidates Search Incident to Arrest

State v. Rosa (ICA August 31, 2020)Background. Keoni Rosa was charged with continuous sexual assault of a minor and sexual assault in the first degree. The complainant’s mother called the police to report a sexual assault that occurred when the complainant was thirteen years old—about a year before the incident. The police interviewed the complainant and the mother. Both reported multiple instances of sexual assault and identified Rosa as the assailant. The complainant reported communications over cellular telephones including exchanging “naked photos” and explicit texts. The police learned that the complainant’s mother erased the text messages and images and the phone was out of service. A detective followed up with a further investigation. The complainant again identified Rosa as the assailant.Weeks later, a different detective went out to arrest Rosa, but could not find him. In the meantime a detective served a subpoena on cellular phone providers for text message logs on Rosa’s te…

HPD Form Mentioning Sanctions did not Arise to Coercion Invaliding the Consent to a Breath Test

State v. Hosaka (HSC August 28, 2020)Background. Troy Hosaka was charged with habitually operating a vehicle under the influence of an intoxicant. After he was arrested, HPD Officer Jared Spiker read the department’s implied consent form. The form stated “if you refuse to submit to a breath, blood, or urine test, you may be subject to up to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you may also be subject to the procedures and sanctions under chapter 291E, part III.”Hosaka initialed that he had been informed and agreed to take a breath test, but refused a blood test. Hosaka signed the bottom of the form which “acknowledge[d] that [he] made the choice[] indicated above and was informed of the information in [the form].” Hosaka took a breath test and the blood-alcohol content was over the limit. Hosaka was charged with habitual OUI. HRS § 291E-61.5.Hosaka filed a motion to suppress the breath test results. He argued that the conse…

Clarifying Public Nuisance Claims and Damages

Haynes v. Haas (HSC May 5, 2020)Background. Shadley Haynes was seriously injured by a Gregory Fowler Haas, a homeless man living in a storage unit. The injury occurred outside Haynes’ bar located less than a mile from Haas’s storage unit. Haynes filed a complaint against Haas, Clark Realty Corp., Kona Metro Parking & Watchmen Services, Allied Self Storage, and other properties and entities. The complaint averred that the defendants created a public nuisance by allowing Haas and others to live in one of the storage units in violation of the Hawai'i County zoning laws and that Hayes suffered serious injury as a result of this nuisance. Allied Self Storage filed a motion for summary judgment on the grounds that it owed no duty to Shadley and that it had no knowledge that people were living in storage units. The circuit court, with the Hon. Judge Ronald Ibarra presiding, granted the motions and awarded costs to the defendants. Haynes appealed. The ICA affirmed.The Public Nuisance …

Motion to Enforce Settlement Cannot be Granted Without First Determining No Genuine Issues of Material Fact

McKenna v. AOAO of Elima Lani (HSC June 25, 2020)Background. Carol McKenna owned a condominium in South Kohala on the Big Island. The Association of Apartment Owners of Elima Lani Condominiums governs the building. In 2010, McKenna discovered water damage that appeared to have been caused by a leak coming from her neighbor’s unit above her owned by Ross Andaloro. McKenna alleged that she contacted her AOAO about the leak, but the AOAO did not fix it and did not allow her to do so. Months later, McKenna claimed to find mold and suffered symptoms associated with exposure to mold. She claims that she was forced to vacate due to contamination. She filed a complaint in the circuit court against her AOAO, Andaloro, and Wells Fargo Bank, the previous owner of Andaloro’s condo, averring negligence and misrepresentation.For two years in the circuit court—Hon. Judge Elizabeth Strance presided over much of the case, but Hon. Judge Melvin Fujino entered the final judgment—the parties worked towar…

No Findings of Fact, No Appellate Review?

In re: Emma Short Revocable Living Trust (HSC June 18, 2020)Background. Elaine Short and her husband, Clarence were married and had two sons, David Short and William Short. Elaine also had a brother, Leroy Cook, who had five children. Elaine first had a will made in 1979 in which she named her husband as the trustee of her estate and her sons and the First Hawaiian Bank as successor trustees if Clarence were to predecease her or was otherwise unavailable. In 1984 she established a revocable living trust along with her husband. The trusts were created to prove for the settlor’s respective spouse and the sons. The trust provided that if Elaine died before her husband, subtrusts would be created for the sons and the successor trustee could distribute principal and income to the sons as needed for health, education, and maintenance and support for their standards of living.In 1993, Elaine amended the trust and allowed the successor trustee full discretion to withhold income for the sons. …

The Constitutional Dimension of the Insanity Defense Requires Colloquy and Waiver of Defense Before Trial

State v. Glenn (HSC June 30, 2020)Background. Michael Glenn was charged with terroristic threatening in the first degree. Glenn filed a motion to determine fitness to proceed and penal responsibility. The motion was granted and three examiners were appointed to determine his mental capacity and opine on whether he had penal responsibility at the time of the offense. Two of the three examiners found that he was unfit to proceed and that he lacked penal responsibility. Dr. Marvin Acklin, Ph.D. disagreed. He determined that Glenn “appeared” fit and that he was not mentally ill at the time of the offense. At the first hearing, the parties stipulated to the findings in all three reports. Counsel did state on the record that Glenn did not agree with the majority findings that he was unfit to proceed. The circuit court with the Hon. Judge Richard Perkins presiding committed Glenn to the Director of the Department of Health for detention, care, and treatment. Glenn was placed at the Hawai'…