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Showing posts from 2013

Failure to Instruct on Lesser-Included Offenses not Harmless even when jury Convicts on Greater or Charged Offense

State v. Flores (HSC November 29, 2013) Background. Shane Flores along with Floyd Orsborn were indicted with, inter alia, one count of kidnapping Aaron Taum. Specifically, they were charged with “intentionally or knowingly restrain[ing Taum] with intent to terrorize him or a third person.” Another co-defendant on other charges was Robert Lodgson. At trial, the prosecution presented evidence that Taum and three others were at a picnic table outside a house in Wahiawa when Flores and Orsborn came onto the property. They covered their faces and had guns. One of the men had a gun in his hand. The man with the gun ordered them to get into the house. Everyone went inside. The men separated Taum from his group and took him upstairs. Taum scuffled with the men and he fell down the stairs. A shootout erupted later on when Taum’s girlfriend showed up with a gun.
Orsborn testified that earlier that day he got together with Flores. They wanted to get some marijuana for a party and Flores said that…

Wheeler Doesn't Apply to your Rule 40 Petition

Christian v. State (ICA November 27, 2013) Background. In early 2008, Edmund Christian was charged with a single count of operating a vehicle while under the influence of an intoxicant under both theories—having over 0.08 or more grams of alcohol per 210 liters of breath and having an amount sufficient to impair his normal mental faculties and guard against casualty—as well as disobeying a police officer. The DUI charge did not explicitly allege that Christian was operating on a “public way, street, road, or highway” as defined in HRS § 291E-1. Months later, Christian took a plea deal and the second count was dismissed in exchange for pleading no contest to the DUI charge. He was fined $700 with fees and “assessments.” He did not challenge the sufficiency of the charge appeal.
Almost two years later, in 2010, Christian filed a petition pursuant to Hawaii Rules of Penal Procedure Rule 40 that collaterally attacked the conviction. In the petition, Christian argued that the failure to alle…

To Reiterate: You Gotta Include Mens Rea in the DUI Charge

State v. Maharaj (HSC November 18, 2013) Background. Peter Maharaj was charged with a single count of operating a vehicle while under the influence of an intoxicant, better known as driving under the influence. Specifically, the charge was in violation of HRS § 291E-61(a)(1), which requires proof that Maharaj was operating a vehicle while under the influence of “alcohol in an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty[.]” Maharaj was orally charged in the district court. The charge did not include a state of mind. He was ultimately convicted at trial and then appealed to the ICA. The ICA affirmed after it noted that a transcript for the motion to suppress was never included in the record.
Then, the HSC issued its decision in State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). Maharaj filed a motion for reconsideration on the grounds that the oral charge was defective ala Nesmith. Maharaj argued that the…

Two Complainants + One Charge = Unanimity Instruction

State v. Getz (HSC November 8, 2013) Background. Chad Getz was charged with a single count of robbery in the second degree. The charging document alleged that Getz used force against “Angela Rueber and/or Jessie Saffery” and had the “intent to overcome Angela Rueber’s and/or Jessie Saffery’s physical resistance.” At his jury trial, two witnesses testified for the prosecution. Rueber and Saffery were loss prevention personnel at Nordstrum. One night, they saw on the surveillance cameras, Getz walk into the store with an Old Navy bag, take a coach purse and walk out of the “handbag department.” Rueber left the office to confront Getz and remained in contact with Saffery by radio. Rueber saw Getz walking toward the exit doors of Nordstrum. Rueber and a salesperson pursued him. Saffery saw what was happening on the video cameras and went to help Rueber and the salesperson. Getz left the store, and was walking toward a stairwell.
Rueber followed him and identified herself. She also ordered h…

Waiving your Rights is Tougher than you Think

State v. Gomez-Lobato (HSC October 30, 2013) Background. Luis Gomez-Lobato was charged with a single count of abuse of a family or household member. At his arraignment, Gomez-Lobato was represented by a lawyer and had the assistance of a Spanish interpreter. Gomez-Lobato pleaded not guilty. Counsel requested a recess in order to go over the jury waiver form with the interpreter. After a recess, the family court had a colloquy with Gomez-Lobato through the interpreter. The family court received the form and asked if the initials on it were his? He said yes. The family court asked if he understood what he was doing and signing before initialing the form? He said yes. The family court asked if the form was explained to him in Spanish? Yes. The family court inquired if he discussed this with his attorney. Yes. And Gomez-Lobato had no questions for the judge. Based on those answers, the family court concluded that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a …

The Raw Materials of a Defense

State v. Scott (HSC October 16, 2013) Background. Kevin Scott and his brother Jefferson Scott were indicted separately out of the same incident involving Leif Martin and Kerry Martin. Jefferson Scott was indicted first and convicted of some of the offenses. Months later, Kevin was indicted for committing assault in the second degree upon Leif, two counts of terroristic threatening in the first upon Leif and Kerry and one count of terroristic threatening in the first degree by a common scheme. Kevin demanded a jury trial.
Scott Requests Transcripts, Audio, and Video Records from his Brother’s Trial . . . Before trial, the prosecution filed notice of its intention to use evidence that Jefferson assisted Kevin after Kevin got into a dispute with the Martins. Kevin filed a motion to continue the trial on the grounds that he needed more time to get transcripts from Jefferson’s trial. The transcripts would assist him in his defense. Kevin’s counsel explained that the reason for not getting th…

HSC Drops Some (Personal) Knowledge on HPD

State v. Apollonio (HSC October 10, 2013) Background. Ricardo Apollonio was charged with excessive speeding. HRS § 291C-105(a)(1). The complaint and oral arraignment failed to allege the requisite state of mind. In other words, there was nothing in the charging instrument indicating that the conduct was done intentionally, knowingly, or recklessly. At trial, the HPD officer testified that he cited Apollonio for excessive speeding after using the LTI 20-20 laser gun (check itout here).
The officer testified that he was using the laser gun and that he was trained to operate the gun. He said that his training consisted of “class work, going over the operator’s manual, and hands-on time with the laser itself.” His trainer was another HPD officer. The officer testified that the manual was provided by the manufacturer and Apollonio objected on the grounds that the officer lacked the personal knowledge and hearsay. The district court overruled the objection on the grounds that “those issues ha…

Failure to Clarify Theory of OUI Meant no Theory can Proceed on Remand

State v. Nakano (HSC October 9, 2013) Background. Daniel Nakano was charged with operating a vehicle under the influence of an intoxicant. HRS § 291E-61. The complaint alleged that Nakano either committed the offense by having an amount sufficient to impair his normal faculties or guard against casualty in violation of HRS § 291E-61(a)(1) and or by operating a vehicle with a BAC of 0.08 or more in his blood or breath in violation of (a)(3). The complaint did not plead any state of mind. Nakano and the prosecution entered a plea agreement. Nakano requested a conditional plea allowing him to plead no contest to HRS § 291E-61(a)(1) and challenge the sufficiency of the plea on appeal. There was nothing in the change-of-plea form or during the colloquy that indicated if the plea included the other theory under (a)(3). The prosecution agreed to the conditional plea and the district court sentenced Nakano, but stayed it pending appeal.
On appeal, the ICA held that pursuant to State v. Nesmith,…

The Straight Dope on Restitution

OVERRULED!

State v. DeMello (ICA August 27, 2013) Background. Lawrence DeMello was charged with harassment and simple trespass. At trial, Alex Kelekoma testified that he was married to Carleen Kelekoma. His ex-wife, Cherilyn Kelekoma, lived with her boyfriend, DeMello. One day there was a dispute over picking up Alex’s son between the couples. Alex called DeMello to talk about it. DeMello was argumentative, but calm. Carleen took the phone and started talking to DeMello, and according to Carleen, DeMello hung up on her. Then Cherilyn called and Carleen answered the phone. Carleen said to her that she didn’t do anything to him. A few minutes later, Alex saw DeMello in front of his house. Alex went outside, DeMello hopped the gate. Alex testified that DeMello approached Carleen and was very aggressive. Cherilyn showed up and approached Carleen. It looked to Alex like Cherilyn was going to attack Carleen so he got in between the women. Cherilyn was still trying to go for Carleen and all th…

Weak, Inconclusive Evidence of Defense may not Require an Instruction

State v. Taylor (August 2, 2013) Background. Pamela Taylor was charged with theft in the second degree and unauthorized practice of law. It was alleged that Taylor acquired $7,000 from Mariko Bereday as a retainer for legal services thereby committing theft by deception. At trial, Bereday testified that she heard that Taylor was a lawyer from a friend and went to see her. Bereday said that Taylor told her she used to be a federal public defender and was now working at a 35-person law firm. Taylor asked for a retainer of $30,000, but Bereday could only afford $7,000. Taylor received a check for $7,000 and she tried to cash it. Bereday asked why she tried to cash it and Taylor said she had to ensure that the check was “good.” Bereday got suspicious and went to the bank where she learned that Ismael Serna Lara was on the payee line, not Taylor. She also learned that Taylor was not a lawyer and confronted her about it. Taylor brought her back a check for $7,000, but according to Bereday, it…