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Showing posts from May, 2012

Eyewitness Identifications Require Special Jury Instruction Upon Request of Defense (from now on)

State v. Cabagbag (HSC May 17, 2012) Background. Steven Cabagbag was charged with unauthorized control of a propelled vehicle and theft in the second degree. At trial, employees of a waterproofing company testified that one of their work trucks was stolen. Fifteen days later, Officer Eutiquito Tomimbang was on patrol in Pearl City. He went to investigate an open gate near the Newtown Recreation Center at around 1:00 in the morning. They went to the area and saw a work site that may have been burglarized. At around 1:40 a.m., Officer Tomimbang testified that he was standing guard at the worksite when he saw a truck driving up the street. Officer Tomimbang testified that even though he did not shine his flashlight into the inside of the truck, he got a good look at the driver. From about 60 to 70 yards from the truck, he saw a man get out of the truck and walk toward the worksite. The man closed the gate and walked toward Officer Tomimbang. When he saw the officer, the man froze, then to…

Sentencing Jury Needs to Know the Extended Terms, but not Parole.

State v. Keohokapu (HSC May 15, 2012) Background. George Keohokapu was charged with murder in the second degree. HRS § 707-701.5. The prosecution later gave notice that Keohokapu was eligible for extended terms of imprisonment as a persistent offender. HRS §§ 706-661 and 662(1). Keohokapu, his wife Kauilani Keohokapu, and his brother, went to club "Komo Mai." Steven Wilcox and his friend Robin Gregory were there too. At some point in the night, Keohokapu got mad because Gregory was apparently staring at Kauilani. Keohokapu left the club and went to his car. Kauilani followed and an argument started. The brother came out and joined the argument. The brother grabbed Kauilani's arm as Wilcox walked out. He approached them and they started arguing. Keohokapu fought with Wilcox. A witness later testified that he saw Keohokapu with a metal object or a knife. Keohokapu collided with Wilcox and Wilcox was stabbed in the chest. Keohokapu drove away and Wilcox died from his injurie…

Evidence from Juvie Proceedings Inadmissible, Calling Jury Instructions Mumbo Jumbo is Misconduct

State v. Schnabel (HSC May 11, 2012) Background. Less Allen Schnabel was charged with manslaughter (HRS § 707-702(1)) and unauthorized entry into a motor vehicle in the first degree (HRS § 708-836.5). The charges arose out of the death of Christopher Reuther at Zablan Beach Park in Nanakuli in 2007. Schnabel apparently punched Reuther once in the face, which caused his death. The prosecution gave notice that it intended to use at trial evidence that in 2002, a man, who was trying to shake Schnabel's hand, was punched in the face. He fell to the ground and was kicked several times. Schnabel was prosecuted as a juvenile and at the juvenile proceedings, an expert witness testified about how an orbital fracture could cause "subdural hematoma in the brain," which is a substantial risk of death. According to the prosecution, this evidence was admissible because it would prove that Schnabel was on notice that similar acts in the future could cause serious injuries. Schnabel file…

Unique Circumstances Save Untimely Civil Appeal

Cabral v. State (HSC May 9, 2012) Background. After a fatal car accident on the Big Island, the Cabrals and other plaintiffs sued the State of Hawai'i. After a bench trial, the circuit court ruled for the State and dismissed all other claims. The court entered judgment on April 20, 2007. Ten days later, the plaintiffs filed a motion for reconsideration. That motion was denied on June 7, 2007. On July 6, the parties submitted a one-page stipulation to continue the time to file a notice of appeal for two weeks. The circuit court approved the stipulation and ordered it so. The stipulation failed to explain why two more weeks were necessary, and the circuit court made no findings explaining the need for the continuance. Within the two week period, the plaintiffs filed a motion to continue the time for filing the brief into September on the grounds that they were trying to settle the case. Before the circuit court ruled on the motion--and days before the deadline was up--the plaintiffs …

Native Hawaiian Rights Hang in the Balancing Test

State v. Pratt (HSC May 11, 2012) Background. Lloyd Pratt was charged with three violations of camping in a closed area in the Kalalau State Park on Kauai. HAR § 13-146-04(a). Pratt moved to dismiss the prosecution on the grounds that he was a Native Hawaiian engaging in a constitutionally-protected activity.  Pratt established evidence that he was 75 % Hawaiian and that he was a kahu, or traditional and cultural caretaker of the valley. As part of his duties as a kahu, he goes into the Kalalau Valley to tend to a heiau and perform ceremonial rites. At the hearing, Dr. Davianna Pomaika'i McGregor testified for the defense. She formulated six elements that are essential to traditional and customary Native Hawaiian practices. After interviewing, Pratt, Dr. McGregor concluded that Pratt learned his contested practice from elders who lived in Kalalau Valley, he took responsibility for the Valley, his purpose was not commercial, and it was consistent with custom. Thus, she concluded tha…

Having to use a Peremptory Challenge to Correct the Trial Court was Plain Error

State v. Ho (HSC May 9, 2012) Background. Patrick Ho was indicted for three counts of Sexual Assault in the First Degree, HRS §§ 707-730(1)(b) and (c), and nine counts of Sexual Assault in the Third Degree. HRS §§ 707-732(1)(b) and (c). The complainant was a teenaged girl. During the jury selection hearing, Juror 19 told the court that she had been sexually assaulted as a child, but assured that she could be fair. Ho asked if she understood the presumption of innocence and Juror 19 said "there's a possibility that he is guilty because we're here." The court denied Ho's request to excuse Juror 19 for cause. "Juror 23a" also reported being sexually assaulted and also assured that she could be fair. She added that she had a friend in law enforcement. As Ho was trying to question her, the trial court cut him off and then denied his request to strike her from the panel for cause. After passing for cause, the parties moved on to exercising peremptory challenges…

Psychologist's Report Must Explain why Defendant Refused to Participate in 704 Examination

State v. Tierney (HSC May 7, 2012) Background. Michael Tierney sat on a bench in downtown Honolulu. A police officer saw him smoking what he believed to be a marijuana cigarette. The officer approached him and asked if he had any weapons. Tierney said no, and pulled out a bag of marijuana from one of his socks. Tierney was arrested and later charged with promoting a detrimental drug in the third degree. At the arraignment in district court, the court entered for Tierney a not guilty plea and referred him to the public defender's office. Tierney told the court that he wanted to represent himself. The judge said that he would not be adequate to represent himself. At the next court date, Tierney appeared with the public defender. Tierney said he still wanted to represent himself and told the court that the public defender "threatened to kill me" and that he was in court for felonies a few days before the appearance. He asked for discovery and a speedy trial. The district cou…