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Showing posts from December, 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…