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Showing posts from 2009

Factual Basis Required Before Triggering the Statutory Duty to Confer

Hui Malama I Na Kupuna O Nei v. Wal-Mart (ICA December 16, 2009)Background. Wal-Mart bought vacant land off of Ke'eaumoku Street in Honolulu. Before the purchase, numerous studies had been done on the land. All suggested no significant archaeological or historical sites were present. Old maps also showed that there was nothing of archaeological or historical interest. Wal-Mart also conducted a private assessment, which concluded nothing present. Wal-Mart applied for building permits from the City and County of Honolulu. The City checked a computer database check, which included information on properties listed on state and federal national historic registers and locations of known burials and sites provided by the Dept. of Land and Natural Resources. The database check showed that the property had been used for commercial purposes for over fifty years. The City issued the building permits without conferring with the State Historic Preservation Division (SHPD) at all.Const…

You Don't Need a Body to Prove a Murder

State v. Torres (ICA December 15, 2009)OVERRULED IN PART BY HSC.Background. Gallegos worked as a cashier at the Pearl Harbor Navy Exchange. He was last seen leaving his post with Torres, a police officer on the base. Earlier that day, Gallegos was given a bag with $80,000. Later that day, Torres was found by federal law enforcement officers in his car on the base. The searched his car and found $78,000, a revolver, a stun gun, and Gallegos' personal belongings like his wallet and driver's license. Gallegos was never seen again.At trial, Agent Robbins testified that he recovered Torres' revolver. He testified that the gun had been recently fired, "within the same day, probably about eight hours or so." Agent Robbins based his opinion on the moistness of the powder residue and the absence of any indication of rust on the gun.Davis also testified at trial. Davis testified that years later she became acquainted with Torres, who had by then moved to Californi…

ICA: Search of an Area that Can Possibly Contain Contraband Still Exceeds Scope

State v. Thornton (ICA December 1, 2009)Background. HPD stopped a car in Waikiki for an expired motor vehicle tax. Thornton was driving and Gipson was in the passenger's seat. Thornton presented his ID, vehicle registration, and insurance card. The police suspected that the insurance card was fraudulent and called the insurance company. In the meantime, another officer, Officer Pistor, saw what he believed to be a bullet-proof vest underneath Thornton's t-shirt. Thornton agreed to allow the police to search the car and signed a written consent form. The form gave Officer Pistor consent to have the "AUTO & CONTENTS, BAGS" searched for "FIREARMS, AMMUNITION." Thornton and Gipson got out of the car and Officer Pistor started to search the car. Officer Pistor found crystal methamphetamine and a scale. Then he found a black wallet lying flat on the driver's seat. Officer Pistor opened the wallet and four identification cards belonging to other…

Blurring the Scope of an Interrogation

State v. Strong (ICA November 25, 2009)Background. Strong was arrested and taken to the Kalihi police station where he was advised of his constitutional rights using a standard police form. Officer McKee attempted to question Strong about a robbery on March 19, 2006. Strong stated that he understood his constitutional rights, but refused to give a statement. Officer McKee told Officer Kiyotoki about it.Officer Kiyotoki was the lead investigator for four incidents in which Strong was a suspect. Officer Kiyotoki had Strong fill out an understanding-and-waiver-of-rights form. Officer Kiyotoki wrote on the form that he was only going to discuss one of the offenses. Strong indicated that he understood his rights and agreed to talk about the first incident in February. However, during the course of the interrogation, Officer Kiyotoki and Strong talked about the other incidents. Strong was indicted of several counts ranging from theft in the third degree to robbery in the second deg…

Footing the Bill of Particulars

State v. Corder (HSC November 19, 2009)Background. The family court granted Allison Corder's extension of a protective order against Lawrence Corder. Months later, Corder was charged with two separate counts of violating the order of protection (HRS §§ 586-5.5 and 586-11(a)(1)(A)). In the complaint the counts referred to police report numbers. Those police reports detailed Corder's conduct and noted the allegedly violated section in order of protection. The police reports were provided in discovery. Corder filed a motion to dismiss or, in the alternative, a bill of particulars. The family court denied the motion and a jury found Corder guilty. The ICA concluded that the trial court erred in denying Corder's motion for a bill of particulars.Requiring a Bill of Particulars. "If the court is of the opinion that the accused . . . has been actually misled and prejudiced in the accused's defense upon the merits of any defect, imperfection, or omission in the in…

The Hidden Element in OUI

State v. Wheeler (HSC November 17, 2009)Background. Wheeler was charged with operating a vehicle under the influence of an intoxicant (HRS § 291E-61(a)(1)). The State's charges went like this:"on or about May 31st, 2001, in the City and County of Honolulu, State of Hawaii, [Wheeler] did operate or assume actual physical control of a motor vehicle while under the influence of alcohol in amounts sufficient to impair [his] normal mental faculties and [his] ability to care for [him]self and guard against casualty[.]"Wheeler indicated that he did not understand the charge because the term "operate" was a term of art. The State refused to clarify the charge. Wheeler moved to dismiss on the grounds that the charge failed to state an offense. The motion was denied. Wheeler lost at trial. The ICA vacated and remanded. The State appealed.The Elements of the DUI Statute Include Where the Conduct took Place. The elements of an offense include conduct, attendant ci…

Conferences with Standby Counsel, Written Transcripts, and Other Rights

State v. Mundon (HSC November 13, 2009)Background. Mundon was charged with several counts of sex assault in various degrees, kidnapping, terroristic threatening, and assault. Mundon requested to represent himself at trial and requested appointed standby counsel. The circuit court granted those requests. At trial, the complainant that she encountered Mundon one night at Kapa'a Beach. She testified that she was looking for a cheap hotel room. Mundon allowed her to sleep in the back of his truck. As she slept, Mundon began to putting his hands under her underwear and feeling her outer labia. She also testified that he started to kiss and touch her breasts approximately ten to fifteen times. When she tried to get away, Mundon produced a knife and threatened to kill her if she tried to get away. A struggle ensued on the beach and eventually she got away. Testimony from police officers corroborated the complainant's version. Mundon testified and his version of events is …

Abuse of Incompetent Persons Statute Not Unconstitutional

State v. Billam-Walker (ICA August 11, 2009)Background. Walker was charged with endangering the welfare of an incompetent person. HRS § 709-905. This was initially a summary disposition order. The ICA granted the state's motion for publication. The ICA presented no background facts.No Abuse of Discretion in Denying Continuance. The ICA rejected Walker's argument that the family court erred in denying his motion to continue trial. "An attorney cannot reasonably expect a court to alter its calendar, and disrupt a scheduled trial to which witnesses have been subpoenaed and to which the adverse party is ready, simply by the filing by counsel of a last minute motion for continuance." State v. Lee, 9 Haw. App. 600, 603-04, 856 P.2d 1279, 1281-82 (1993). Here, the ICA noted that the motion for continuance was requested one week prior to trial. According to the ICA, the defense had adequate time and resources to prepare for trial. The ICA also noted that there was…