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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. …

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…