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Showing posts from 2011

Abandoned Property is not "Property of Another" (but Grand Jury Need not know who the Other is to Indict)

State v. Taylor (HSC December 15, 2011)Background. Daniel Taylor was prosecuted by the federal government for violating the Native American Grave Protection Act (NAGPRA), 18 USC § 371. Taylor pleaded guilty for conspiring to sell, use for profit, and transport for sale and profit "Native American cultural items." He was sentenced to eleven months of imprisonment and one year of supervised release. One year later, the State prosecuted Taylor for theft in the first degree. HRS § 708-830(1) and HRS § 708-830.5(1)(a). At the grand jury proceeding, the prosecution called only one witness. Abraham Kaikana was an agent for the Attorney General's Office. Agent Kaikana testified that back in the "1800s," a surveyor named Joseph Swift Emerson was shown Kanupa Cave on the Big Island. Inside the cave, Emerson removed artifacts and sold them to the Bishop Museum and the Peabody Essex Museum in Massachusetts. According to Agent Kaikana, Emerson tagged the items he took f…

Why a Plaintiff Brings a Lawsuit Cannot be Considered by the Jury.

Kobashigawa v. Silva (ICA December 2, 2011)Background. William Kobashigawa was walking across Kamehameha Highway in a crosswalk in Kaneohe, when a truck driven by Joseph Silva hit him. Kobashigawa died. Gina Bailey was a witness. The estate of Kobashigawa and family sued Silva and the City and County of Honolulu. The Kobashigawas claimed negligence, negligent infliction of emotional distress, and loss of consortium. The Kobashigawas alleged that the City was negligent in the design of the highway with poor lighting in the crosswalk. The Kobashigawas settled with Silva and went to trial against the City. At trial, portions of Bailey's deposition were read to the jury. Also at trial, the City was allowed to use evidence on possible motives for bringing the suit. The jury found that the City was not negligent, and the circuit court awarded the City with costs. The Kobashigawas appealed.A Plaintiff's Motives for Bringing a Lawsuit Cannot be Considered by the Jury. At trial, the c…

ICA: Grand Jury Counsel Misconduct Could Trigger Dismissal of Indictment (just not in this case)

State v. Griffin (ICA November 22, 2011)Background. Darnell Griffin was charged with murder in the second degree and sexual assault in the first degree. On September 5, 1999, Evelyn Luka went out to her regular nightspot, the Venus Nightclub on Kapiolani Boulevard. Her husband, Kevin, stayed home. The Lukas agreed that she would be home by midnight. At around midnight, Luka called Kevin and told him that she was staying an hour longer and was going to get a ride home with a friend from Salt Lake. Venus employees remember seeing a woman matching her description there, and recalled that she left at around midnight with an African-American man in a dark green Nissan Pathfinder. Luka never came home. Kevin called Venus several times, but they ignored his call.The next morning, at around 8:00 a.m., a commuter on the H-2 near the Ka Uka Boulevard on-ramp saw something on the side of the road near the on-ramp. The commuter and two off-duty police officers went to the area and found a woman …

Confrontation Clause is not a Right to Present Misleading Evidence

State v. Brooks (ICA October 21, 2011)Background.Ted Arifuku was found dead in his apartment with his hands tied behind his back and bruises and cuts all over his body. The medical examiner concluded that Arifuku had been strangled to death. The police searched his apartment and found a homemade utility knife and a blue cap that was on the bed, methamphetamine, and marijuana. Soon after the discovery of the body, police received information that the blue cap belonged to Curtis Ray Brooks, who was homeless and living in a van off of Date Street. Police questioned Brooks and Brooks implicated Sistine Rangamar. Rangamar was then arrested and provided a lengthy statement to the police.Rangamar's Statement.Rangamar told the police that Arifuku was a drug dealer and that Brooks planned his death. Rangamar said that Brooks instructed him to visit Arifuku in his apartment while Brooks waited nearby. Rangamar was supposed to subdue Arifuku, tie him up, and let Brooks in through a back door…

The Maximum Term of Imprisonment is the Statutory Maximum (not the Maximum Range under Federal Sentencing Guidelines)

State v. Andres (ICA October 20, 2011)Background.Ray Andres was charged with promoting a dangerous drug in the second degree. HRS § 712-1242. The date of the alleged offense occurred on November 6, 2006.The prosecution moved for a mandatory minimum term of three years and four months of imprisonment without the possibility of parole.Over Andres' objection, the circuit court determined that Andres was eligible for a mandatory minimum based on a conviction for a federal drug offense in 1991.In that case, Andres pleaded guilty to attempting to possess over 100 grams of crystal methamphetamine on July 3, 1991 and was sentenced on July 8, 1991.The federal court determined that Andres was subject to a range of 121 to 151 months.The circuit court imposed a mandatory minimum on Andres.Andres appealed.The Repeat-Offender Statute.Andres was found guilty of a class B felony and sentenced pursuant to the repeat-offender statute."[A]ny person convicted of . . . any class B felony . . . an…

HSC: Burden is on the Court to Explain why it Reduced a Court-Appointed Attorney's Request for Fees Exceeding the Statutory Maximum

In re Attorney's Fees of David Bettencourt (HSC October 19, 2011)Background.The circuit court appointed David Bettencourt to represent Joshua Gonda in a murder case.The case went to trial and Gonda was found not guilty on all counts.Bettencourt represented Gonda for 16 months.In the middle of the case, Bettencourt requested attorney's fees of $19,188 for 213.2 billable hours at $90.00 per hour.The trial court judge certified the entire amount.The administrative judge, however, struck out billable time submitted for making copies of documents on the grounds that it was not legal work.The administrative judge approved of $18,567.After trial, Bettencourt made his second request.This time he requested $38,529 in fees for 428.1 hours of work.The trial judge approved it.Again, however, the administrative judge cut out almost $11,000 in fees and awarded $26,640.The administrative judge did not provide any specific grounds for the cut.Attached to the reduced award, however, was a memo…

Juries have to Award General Damages Exceeding $1.00 once they find Liability and Special Damages

Kanahele v. Han (HSC October 12, 2011)Background.Gregory Kanahele, Sr., his son, Kanahele, and his daughter, Trishalynn Kanahele, sued James Han. Kanahele was crossing the street while pushing his motor scooter in a crosswalk.James Han drove through the crosswalk and hit him.At trial, Han testified that his side mirror hit Kanahele.Trishalynn and Gregory, Sr. saw the accident.The Kanaheles all sued Han alleging negligence and sought damages for pain, suffering, emotional distress, and loss of enjoyment of life.At trial, Kanahele's doctor testified that the handlebar of the motor scooter went through Kanahele's cheek and it had to be repaired with surgery.It was unclear if he suffered disfigurement.There was evidence, however, that Kanahele was in distress and pain after the accident and prior to the surgery.The total cost of Kanahele's treatment came to around $12,000.The jury found that Kanehele was injured, but the other plaintiffs were not.The jury also found Han neglig…

Calling Defendant "Habitual" OUI Offender won't cut it

AFFIRMED!State v. Walker (ICA September 30, 2011)Background.Samuel Walker was charged with habitually operating a vehicle while under the influence of an intoxicant.HRS § 291E-61.5.The charge simply alleged that Walker was "a habitual operator of a vehicle while under the influence of an intoxicant[.]"Walker objected to the sufficiency of the charge prior to verdict, but was found guilty of the offense.He appealed.Liberal Construction does not apply.The ICA held that because Walker objected to the sufficiency of the charge prior to the verdict, the liberal construction did not apply.The "liberal construction standard is limited to construing indictments, when the issue is only raised after trial."State v. Motta, 66 Haw. 89, 94, 657 P.2d 1019, 1022 (1983).Charging Instruments must Apprise Defendant of the Offense AND Establish Jurisdiction.The accused has the right "to be informed of the nature and cause of the accusation."Haw. Const. Art. I, Sec. 14.The c…

Harmless Error Determined by Weighing Evidence at Trial, not Reasonable Possibility of it Contributing to Conviction

State v. Veikoso (HSC September 12, 2011)Background.John Veikoso was indicted with eight counts involving sexual assault in the 1st degree, kidnapping, and sexual assault in the 3d degree.The complaining witnesses were two prostitutes.One of the prostitutes testified that Veikoso picked her up near the Long's Drugs and Safeway near Nu'uanu Ave.She agreed to cruise with them and they went up the Pali Highway.They went into a dark neighborhood on the Old Pali Road.Veikoso told her that he could take her back if she was scared.She said she was okay.Soon, however, she did get scared and asked to be taken back.Veikoso took her phone away and hit her in her face and head several times.He grabbed her hair.She was bleeding and lost consciousness.She tried to get out of the car, but Veikoso kept pulling her hair and threatened to hit and even shoot her if she tried to get away.She kept quiet as they drove down the windward side of the Pali.Veikoso said that he would drop her off at a b…