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Showing posts from April, 2012

Challenging a Conclusion Without a Finding that was Actually a Conclusion

Marvin v. Pflueger (HSC April 27, 2012) Background. A group of landowners live on a kuleana next to James Pflueger near Pila'a Bay on Kauai. Heidi Huddy-Yamamoto has an interest in the land too. The landowners sued Pflueger for damages after he graded his property which caused a mudslide that covered their land. They also sought injunctive relief, including an easement by necessity. Huddy-Yamamoto was invited to join the lawsuit, but she refused. Years of litigation followed. The plaintiffs filed a motion for summary judgment to get the easement without trial. More than four years after filing the initial complaint, Pflueger, in a "position statement" raised the argument that the case should be dismissed because Huddy-Yamamoto was a necessary party that must be joined in the lawsuit. Pflueger never raised this issue in a motion to dismiss for failure to join a party. The circuit court found that Huddy-Yamamoto, who testified at the hearing on the motion for summary judgme…

State of Mind is not an Essential Element, but it is Essential to Pleading

State v. NesmithState v. Yamamoto (HSC April 12, 2012) Background. Kevin Nesmith and Chris Yamamoto were each charged with operating a vehicle while under the influence of an intoxicant. Both charges alleged alternate theories of the offense. They both alleged that they were operating a vehicle while "under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty" in violation HRS §291E-61(a)(1) and operating a vehicle "with .08 or more grams of alcohol per two hundred ten liters of breath" in violation of HRS § 291E-61(a)(3). Yamamoto was additionally charged with committing either offense while a "highly intoxicated driver"; that is, "a person whose measurable amount of alcohol is 0.15 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood, or 0.15 or more grams of alcohol per two hundred ten liters of the perso…

Telling the Suspect a Confession is his Chance to Tell his Side of the Story was an Interrogation

State v. Eli (HSC April 13, 2012)Background. Pulumata'ala Eli was suspected of seriously injuring his seven-month-old daughter in a minivan at Ala Moana Beach Park. He decided to turn himself in and called the police to tell them that he will meet them at Kapiolani Hospital the next day. He showed up at the agreed-upon place and time, was arrested, and taken to the police station. At the station he was taken to an investigation room where an officer told Eli that this was his "chance to give me his side of the story." Eli agreed to make a statement. The officer turned on his tape recorder, and read a standard waiver form to Eli. Eli was provided a copy and followed along and seemed to understand his rights. Eli told the police that he did not want an attorney for the moment.On October 27, Eli told the police that he had been trying to work things out with his girlfriend in the minivan. He was frustrated at the time and his daughter sitting in the back seat would not stop…

Apologies Admissible in Criminal Prosecutions

State v. Lealao (HSC March 28, 2012)Background. Blue Lealao was charged with assault in the first degree. HRS § 707-710. Lealao filed a motion in limine excluding his statements of condolences; particularly, the statement, "I'm so sorry. I made a big mistake." Lealao relied on HRE Rule 409.5. The circuit court allowed only the statement, "I made a big mistake" was admissible over Lealao's objection. The apology was not. At trial, testimony showed that Lealao hit a man named Emil after an argument at a birthday party. Approximately a week and a half later, testimony from a woman named Chelcey Pang established that Lealao said he had made a "big mistake." Lealao testified in his own defense and explained the "mistake" he was talking about was not an admission of guilt. A jury found him guilty of assault in the second degree and he was sentenced to five years of imprisonment. The ICA affirmed, but noted that it was unclear if HRE Rule 409.5…

Inaudible Responses, Stayed Sentences, and Parental Discipline

State v. Kiese (HSC March 29, 2012)Background. Jason Kiese was charged with one count of harassment, a petty misdemeanor. Kiese was accused of slapping his six-year-old son on his face and with a thin bamboo stick on his hands and okole. Before trial, there was a hearing to determine the son's competency. Although he did not speak much, the family court noted interpretations of gestures by defense counsel and the prosecutor. This practice continued at trial. Essentially, the son testified that he misbehaved in school so his father scolded him, spanked him, hit his hands and face, it hurt, and he cried. Police officers testified about taking photographs of red marks on the son. The mother, Kiese's wife, testified about not seeing the incident but that Kiese told her that he had hit their son. Kiese testified in his own defense. The family court rejected the parental discipline defense and found Kiese guilty as charged. The family court sentenced 6 months of probation with the r…

ICA Reluctantly Holds Due Process may Prohibit HPA from Imposing Higher Min. Term when Defendant Prevails on Appeal

Fukusaku v. State (ICA April 3, 2012)Background. Raita Fukusaku was convicted of two counts of 2d degree murder, and was sentenced to two consecutive terms of imprisonment with mandatory minimum terms of 15 years each. The Hawai'i Paroling Authority set the minimum terms to two twenty-year terms. Thus, he had to serve 40 years before being eligible for parole. Fukusaku appealed and the case was remanded for re-sentencing. Fukusaku was again sentenced to two consecutive life terms imprisonment with the possibility of parole. This time, the HPA gave him two terms of twenty-five years making it a 50-year minimum term. Fukusaku sought a petition to correct the terms pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. Fukusaku, pro se, argued that the HPA was being vindictive and unjustified in upping the terms. The petition was denied without a hearing. Fukusaku appealed.The Standard of Review. A Rule 40 petition is the appropriate procedural means to challenge the HPA…

No English, No Problem

Cun-Lara v. State (ICA March 28, 2012)Background. Isidro Oswaldo Cun-Lara, a citizen of Guatemala, was charged with methamphetamine trafficking (HRS § 712-1240.6(2)), promoting a dangerous drug in the third degree (HRS § 712-1243) and unlawful use of or possession of drug paraphernalia (HRS § 329-43.5(a)). He appeared for the arraignment, waived a preliminary hearing, and was arraigned again in the circuit court all without requesting an interpreter. He had an attorney with him too. All continuances of his trial at pretrial conferences were conducted in English without the aid of an interpreter. Cun-Lara entered a plea agreement.At the change-of-plea hearing, Cun-Lara pleaded no contest to the paraphernalia charge and moved to defer the no-contest plea. His attorney said that an interpreter was unnecessary. The change of plea colloquy was in English without an interpreter. He signed a change-of-plea form that expressly said that "if I am not a citizen of the United States, a conv…

Remedy for Deficient Charging Instrument is Dismissal Without Prejudice, For Real.

State v. Walker (HSC March 28, 2012)Background. Samuel Walker was charged with Habitually Operating a Vehicle Under the Influence of an Intoxicant. HRS §291E-61.5(a)(1) and (a)(2)(A). Walker had been charged by felony information. The charging instrument failed to allege that Walker had been operating a vehicle on a public road, way, street, or highway. The instrument also merely referred to Walker as a "habitual operator of a vehicle while under the influence of an intoxicant." He was convicted and sentenced to five years imprisonment. Walker appealed. The ICA held that the charge did not allege an essential element--the attendant circumstances of a "habitual operator"--and vacated the judgment with instructions to dismiss without prejudice. Chief Judge Nakamura dissented.Walker's Complaint. Walker's argument to the HSC had nothing to do with the ICA's analysis of the Wheeler issue. Rather, he took issue with the remedy: vacating the judgment with ins…