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Showing posts from December, 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 …