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Showing posts from February, 2008

Reviewing a Motion for Reconsideration: new Application to an old Standard?

Home Owners of Kai Nui Court v. City and County of HNL (ICA February 28, 2008)

Background. The City's garbage truck somehow hit the gate at the Kai Nui Court. Kai Nui sued for damages in the district court and went to trial. After Kai Nui presented its case, the City orally moved for dismissal. The district court granted it and concluded that Kai Nui failed to make a prima facie showing of damages thereby rejecting Kai Nui's argument that paying a bill presumes that incurred expenses were reasonable and necessary. Kai Nui filed a motion for reconsideration in which it cited authorities from this and other jurisdictions for the proposition that a plaintiff's payment of special damages is prima facie evidence of the amount and reasonableness of the claimed damages. The City argued, inter alia, that Kai Nui did not provide new evidence or argument that could not have been presented at trial. After a hearing, the district court granted Kai Nui's motion for recon., re…

Strictly speaking, there's more than one way to bribe a witness.

State v. Gomes (HSC February 20, 2008)

Background. A woman, Zook, saw a fight take place in front of her home one night. Zook told her friend, Schulte, about the fight and how she was going to be called as a witness at a trial. Schulte learned that Nolta, her boyfriend at the time, knew the people in the fight, which included Gomes. One night at a lounge, Gomes told Schulte to tell Zook not to "show up and testify." Nolta later testified that Gomes asked him whether Schulte would urge Zook not to testify and that if Zook would accept money for it. The message eventually got to Zook. In the meantime, Gomes and his co-defendant were charged with assault in the 2d degree. After Gomes' "entreaty," Zook was served with a subpoena to testify at trial. There was no evidence of a prior subpoena. Gomes' motions for acquittal on the grounds that there was insufficient evidence to find him guilty of HRS § 710-1070(1)(b) was denied. Gomes was convicted of bribery of a w…

A Standard for Permanent Injunctions (oh, and the State can't Alienate Ceded Lands yet).

Overruled by SCOTUS
OHA v. HDCH (HSC January 31, 2008)

Editor’s Note.
Everything about this case is big. The litigation took years, the parties include State agencies, public figures, and an entire people. It even gives us a much-needed standard for permanent injunctions. Naturally, the opinion itself is big (97 pages long). I cannot possibly thoroughly examine the issues here without spending too much time and webspace on a single case. I’ve read through it and presented what I think are the most interesting issues and I do not represent this summary as a complete report of the OHA v. HCDCH.

Background. The Housing and Community Development Corporation of Hawai‘i (HDCDH) and the State attempted to transfer various lands on Maui and the Big Island for the purpose of building residential housing. In 1995 a slew of plaintiffs—OHA and a group of individuals—sought to enjoin the State from alienating the lands because the lands were ceded lands part of the public lands trust and could not be…

Res Gestae: the die-hard doctrine.

State v. Fetelee (HSC January 31, 2008)

Background. At Fetelee's trial, Angela Lopez was in her friend's apartment one night with her friends when Fetelee barged in after demanding drugs, attacked one of her friends, and chased off another. Around ten minutes later Fetelee, appearing "calm," returned and apologized. Shortly after that, Fetelee asked a woman in a gas station parking lot a cigarette and money. When she pulled out her cigarettes, a $10-bill came out from her purse. Fetelee grabbed the bill, and the woman did not ask for it back. Just then, two Micronesian men, Michael Hartman and Kenter Alik, walked by. According to their testimony, Fetelee provoked them and hit Hartman several times in the face. Alik fought with Fetelee for a while, but Fetelee ran off toward the apartments. Alik started assisting Hartman when Fetelee returned with a knife. Fetelee stabbed Alik in his stomach and his side as he tried to run and after he fell, Fetelee stabbed him behind…

First Challenge to new Extended Term Sentencing leaves Statutes Intact.

State v. Cutsinger (ICA January 30, 2008)

Background.
Cutsinger was charged with burglary in the 2d (HRS § 708-811) and possession of burglar's tools (HRS § 708-822(1)(a)). He pleaded guilty to both counts. The State filed a motion for extended sentencing on the grounds that he was a "persistent offender". HRS §§ 706-661 and 706-662(1). The motion was granted. Cutsinger then filed a motion to reduce his sentence based on, inter alia, Apprendi v. New Jersey, 530 U.S. 466 (2000) and progeny. That part of the motion was denied, and Cutsinger was sentenced to 10 years of imprisonment on Sept. 9, 2006. Cutsinger filed his notice of appeal on Sept. 27, 2006.

Pending the appellate disposition, Cunningham v. California, 549 U.S. ___ (2007) and State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2004) came down from the US and Hawai'i supreme courts respectively. The cases held that the statutes used to extend Cutsinger's sentence were unconstitutional because they allo…