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Showing posts from 2014

“Penetrating and Comprehensive” Approach to Motions to Withdraw

State v. Harter (HSC December 10, 2014) Background. Letitia Harter was charged with assault of a law enforcement officer in the second degree, resisting arrest, and disorderly conduct. The charges stemmed from an incident in a Honolulu nightclub, Club 939. Harter initially called the police but the police ended up trying to arrest her for disorderly conduct. The arresting officer later testified as he attempted to “gain control” of Harter, she swung at or around him and scratched the officer’s chin.
At the arraignment, Harter was represented by the public defender. After a few continuances of the trial date and while discovery requests remained outstanding by the prosecution, Harter’s counsel requested that its office withdraw as her lawyer. Harter told the court that she was not happy with her lawyer. She said that after multiple attempts to reach her lawyer, when she finally talked to her lawyer, her lawyer she was crazy when she said she had a new job as an assistant casting director…

Trial Court Can’t Stop Lawyers from Asking Witnesses if they Lie

State v. Locken (ICA November 28, 2014) Background. Andrew Locken was charged with assault in the second degree against Larsen Kaneda and assault in the third degree against Karinne Wong, Kaneda’s girlfriend. Locken lived with two brothers: Konrad and Hans Bruesehoff. The Bruesehoffs lived with Kaneda. This group and some others went out to Dave & Buster’s for about two hours. Outside D&B, Locken got into an argument with a “local guy” that escalated to a challenge to fight. Wong intervened and the group drove home. From there, the testimonies are dramatically different.
Kaneda and Wong testified for the prosecution. Their version was that once back at the Bruesehoff house, Wong asked Locken why he’d want to start a fight when Hans was disabled (he had a pacemaker and artificial discs in his back). Wong testified that less than six months before that night, Locken was in a similar incident in which Locken wanted to fight a “local guy” that had “falsecracked” Konrad. On that nigh…

Defective Complaint is Not a Jurisdictional Defect

State v. Kam (ICA November 26, 2014) Background. Cierra Ann Kam was charged as a repeat offender of operating a vehicle while under the influence of an intoxicant and operating a vehicle after her license to drive was suspended or revoked for OUI. The complaint failed to allege the required mens rea for each count.
After the complaint was filed, the HSC handed down State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). The HSC held that the portion of the complaint alleging OUI by way of facts (HRS § 291E-61(a)(1)) required the “intentionally, knowingly, or recklessly” mens rea. Id. at 54, 56, 61, 276 P.3d at 623, 625, 630.
In the wake of Nesmith, the prosecution moved to amend the complaint. Kam opposed on the grounds that the defect in charging the complaint was a jurisdictional one that required dismissal of the case all together. The district court granted the motion and the amended complaint was served on Kam. Kam acknowledged receipt and pleaded not guilty. Kam was found guilty afte…

Right to Attend your Trial is not Invitation to Flee

State v. Vaimili (ICA November 12, 2014) Background. Joseph Vaimili had been charged of kidnapping, terroristic threatening in the first degree, promoting prostitution in the first degree, and using or carrying a firearm while in the commission of a felony. Vaimili was released on bail. He appeared at some pretrial matters and at the selection of his jury. On the day the jury was supposed to be sworn in and trial to get started, Vaimili did show up in court. The trial court granted two continuances and he still did not show up. The prosecution filed a memorandum asserting that Vaimili left the islands and that sheriffs and police were actively searching for him on Oahu. Finally, about a month after the jury had been selected, the court proceeded with his trial in absentia. The jury found Vaimili guilty as charged. He was later found in Texas more than a year after the verdict, brought back to Hawaii, and sentenced to prison for 40 years. He appealed.
Disjunctive Charging as Alternative …

Solicitation Requires Proof of Request or Demand for Money

State v. Abel (HSC September 24, 2014) Background. James Abel was charged with the city ordinance of solicitation with animals in Waikiki, a violation of ROH § 29-13.2(b). At trial, HPD Sergeant Stacey Christensen testified that one day she was “enforcing parking violations” in Waikiki. She saw Abel “with birds fronting the Outrigger standing on the sidewalk.” Abel was putting birds on people and taking pictures of them with their cameras and the people would give him money. She couldn’t make out what they were saying and could not discern how much money was given to Abel. Abel moved to acquit and argued that the elements had not been met because the prosecution could not prove solicitation. The motion was denied. Abel argued that there was still insufficient evidence to show solicitation, which is basically defined as a demand for gifts or money. During his closing, Abel argued that “[m]erely extending the gesture of placing birds on someone and taking a photo is just an extension of …

Cops can Execute a Warrant in the Middle of the Night in a Public Park

State v. Williams (ICA September 22, 2014) Background. Fred Williams was in Cartwright Park in Honolulu after closing time. The signs around the park posted that no one can be there between the hours of 10:00 p.m. and 5:00 a.m. The police found him and cited him for being in the park during the off-hours. In the process, they discovered that an outstanding bench warrant (a judge ordered a warrant for his arrest for failing to show up to court on an unrelated matter) was out for him. He was subsequently arrested for that. After being placed in handcuffs, the police discovered a glass pipe, two lighters, and small baggies on his person. This discovery led to prosecuting him for possession of drugs and drug paraphernalia. The warrant, however, expressly and explicitly stated that it could not be executed between the hours of 10:00 p.m. and 7:00 a.m. “on premises not open to the public.”
Williams moved to suppress on the grounds that the warrant was improperly executed. The circuit court gr…

Chit Chat with a Cop Didn't Arise to Custodial Interrogation

OVERRULED!

State v. Kazanas (ICA August 29, 2014) Background. On Halloween night, a complainant was driving his car through Waikiki to watch the Halloween festivities. The driver got to Kuhio Avenue at an intersection and stopped to let a group of people cross. As he entered the intersection, a straggler ran across the road and ran into the car. A group surrounded the car and started pounding the windows and kicking the car. The back window cracked. The complainant saw a man on the hood with heavy boots stomping the windshield. The man then got off the hood, walked around to the driver, and punched the driver several times in the face.
Ex-cop, James Easley identified Gregory Kazanas as the man who punched the driver. Easley remembered Kazanas because when he was a cop, he jumped or fell from the ninth floor of a condo in Waikiki, landed on a beach chair on the pool deck, and was coherent when he responded to the scene. The driver in the meantime was able to drive off and find the police.…

The Public's Right to Know (About Potential Juror Misconduct)

Oahu Publications Inc. v. Ahn (HSC July 16, 2014) Background. Last summer, Christopher Deedy was on trial for the death of Kollin Elderts. After weeks of testimony, the case went to the jury for deliberation. The jury deliberated for several days before it became hopelessly deadlocked and the circuit court, Judge Karen Ahn, declared a mistrial. This case was covered by Oahu Publications, better known as the Honolulu Star-Advertiser, and KHNL/KGMB. On the fifth day of jury deliberations, Judge Ahn held five hearings that were not open to the public at the end of which, Judge Ahn sealed portions of transcripts pertaining to these sessions. At the last proceeding, Judge Ahn ordered the courtroom cleared a few times. The media did not object to the closing of the courtroom. When they resumed in the open, Judge Ahn declared a mistrial.
A few weeks later, the Star-Advertiser and KHNL/KGMB (the media) filed in the HSC petitions for a writ of prohibition and a writ of mandamus on the grounds th…

A Temper Tantrum about Going to bed Early isn't Terroristic Threatening

In re PP (ICA April 30, 2014) Background. A minor was charged with terroristic threatening in the second degree. HRS § 707-717(1). He was accused of threatening by words or conduct to cause bodily injury to Jeffrey Kuewa in reckless disregard of the risk of terrorizing him. At trial before the family court, Kuewa testified that he is a counselor at a youth shelter in Haleiwa. He caught the minor smoking in his room and imposed and early bed time (EBT) at 7:00 p.m. Later that day, Kuewa discovered the minor had not finished his chores, was screaming, and was in an out-of-bounds area in the shelter. He gave him two more EBTs, but never told the minor. The next day, the minor approached Kuewa in an aggressive manner outside the shelter and glared at him. Kuewa told him the additional EBTs were based on going out of bounds and screaming. The minor told him he thought it was just for one day. Kuewa told him he was missing the point of an EBT and admitted he compared the minor a “little girl…

Yes, Forgery Includes Using Counterfeit Cash

State v. Eberly (ICA March 31, 2014) Background. Bardwell Eberly, Antony Moore, and Chrisitna Whitley were originally charged with forgery in the first degree. HRS § 708-853. Specifically, they were charged with “uttering” a forged instrument “purported to be United States Currency.” Eberly pleaded guilty to a reduced charge of forgery in the third degree. Before sentencing, however, the HSC in an unrelated case affirmed Eberly’s conviction and sentence to prison. The sentence was stayed pending appeal this entire time. Now that it had come down, the trial court in this case told Eberly that he could not be sentenced to probation. Eberly moved to withdraw his guilty plea. He was sentenced to a year in jail. Eberly appealed.
The Issue and the two big Procedural Problems. Eberly presented a straight-forward issue on appeal: the forgery statutes plainly and unambiguously do not include counterfeiting U.S. currency. The problem in getting to the issue is that it was never raised below. Ther…