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Showing posts from January, 2014

Parents have Constitutional Right to Counsel Against DHS

In re TM (HSC January 6, 2014) Background. Mother had her child, TM, when she was fifteen years old. About a year later, mother was diagnosed with mental health issues. The Department of Human Services filed two petitions for foster care. One for the mother and the other for TM. At the initial hearing on both petitions, the family court addressed all of the parents and encouraged them to get counsel. If they could not afford counsel, the court would review an application and appoint one if they qualified. The family court then addressed Mother and said it would “find a person that can act” as both a guardian ad litem and a lawyer. Mother’s guardian appeared at subsequent hearings and told the family court that there may be a conflict of interest between what is in Mother’s best interest and what she wants to do about her child. No lawyer was appointed. For nearly two years, no lawyer was appointed. Finally, DHS moved to terminate Mother’s rights to TM.
When Mother turned 18, her case as…

HSC Badly Divided and Unanimous at the Same Time

State v. McKnight (HSC December 31, 2013) Background. Robert McKnight was charged with electronic enticement and promoting child abuse in the third degree. McKnight communicated with agent Vincente Domingo with the Attorney General’s office on a chatroom. Domingo pretended to be a teenaged girl living on Oahu. Over several months, McKnight communicated with Domingo via chatrooms, cellular telephones, email, and telephone. The chats were intimate in nature and included discussions of sexual acts. At one point, they discussed meeting in person. McKnight agreed to purchase a ticket for Domingo from Oahu to Maui and he would pick “her” up at the airport. On the meeting day, McKnight went to the Kahului Airport where he was arrested by the police and special agents.
He was taken to the Wailuku Police Station and advised of his Miranda rights. McKnight said he wanted to talk to a lawyer. The agents left the room and conferred with another agent and wondered if they could go back in there and …

Narrowing the Prohibition Against Disjunctive Pleading

State v. Codiamat (HSC December 27, 2013) Background. Marianne Codiamat was charged with a single count of harassment:
On or about the 6th day of January, 2011, in the City and County of Honolulu, State of Hawaii, MARIANNE L. CODIAMAT, with intent to harass, annoy, or alarm [Complainant], did strike, shove, kick, or otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact, thereby committing the offense of harassment in violation of [HRS § 711-1106(1)(a).].
Codiamat moved to dismiss the charge based on deficient pleading. She argued that the use of the disjunctive rendered the complaint deficient and too difficult for her to prepare for a defense. Over the prosecution’s objection, the district court granted the motion and dismissed the case without prejudice. The prosecution appealed and the ICA affirmed, and Chief Judge Nakamura concurred and wrote separately to state that the precedent should be reexamined and overturned. Inexplicably…

Prosecution Need only Disprove one of three Elements to Keep it a Class A Kidnapping

State v. Bailey (HSC December 24, 2013) Background. Ezra Kualaau contacted Andrew Rodriguez to buy crack cocaine. Rodriguez and Bladesin-Isaiah Bailey went to Kualaau’s house in a white Chevy Impala. Kualaau had no shirt or shoes on and was wearing basketball shorts when he joined them at a park across the street from his house in Waiau on the island of Oahu. Rodriguez sat in the driver’s seat, Bailey in the front seat passenger’s seat, and Kualaau in the back. After a cop car drove by, the Bailey and Rodriguez looked at each other, Bailey went to his trunk and Kualaau started getting hit. He was struck in the head and lost consciousness. He was handcuffed and placed in the trunk and then they drove off. In the trunk, Kualaau accessed his cell phone and texted his mother that he was being kidnapped and he called 911. The car drove to a cul-de-sac and parked. They placed a plastic bag and cloth over Kualaau’s head. They walked him up a trail and told him that if he made noise, they’d sh…

Merger was the Case

State v. Santiago (HSC December 20, 2013) Background. Anthony Santiago was charged with both robbery in the second degree and assault in the first degree. Santiago was driving his truck through Waikiki and Kaulana Akau was in the passenger’s seat. Santiago picked up Brad Easterling—the complainant—and his friend, Dustin Hernandez and they sat in the bed of the truck. At trial, there are very different versions of what happened. Easterling said that during the ride, he gave Santiago some marijuana and when they got to their destination, he and his friend got out of the truck and shook hands with Akau and Santiago. When Easterling shook hands with Santiago, Santiago grabbed hold of his hand, Easterling dropped his skateboard, and someone took his backpack. He heard someone say “take off” and the truck started moving. Easterling was dragged for a distance and had serious abrasions and bruises on his left arm, shoulder, hand, knee, and hip.
Akau said he never saw the exchange of marijuana d…

Pleading Not Guilty Essential Before Being Found Guilty

State v. Basnet (HSC December 18, 2013) Background. Sushil Basnet was charged by way of complaint with a single count of abuse of family or household member after he was arrested one morning at the Himalayan Kitchen. The complaint generated by the prosecution was captioned in the district court. He was served with a penal summons to appear before the family court after he bailed out. When he appeared at the family court he waived the oral reading of the charge, entered a not guilty plea, and demanded a jury trial. The family court ordered Basnet to appear before the circuit court.
At the circuit court, the parties appeared and indicated that they were ready for trial. The circuit court set the case for trial the next day. They returned, but were told to come back one week later. The prosecutor then orally moved to amend the complaint to change the heading from “district court” to “family court.” Basnet objected. A week later, Basnet argued that under the rules of penal procedure, in a n…

Hussein Loses Some of its Umph?

State v. Kong (HSC December 10, 2013) Background. After being charged with various drug offenses, Stanley Kong petitioned and was admitted into the Maui Drug Court Program. At the hearing on the petition, the circuit court explained that if he violated the terms and conditions of the program, he could be terminated fro the program. The circuit court found that Kong waived his rights “as indicated in the petition for admission” and let him in. Kong participated in the program for many months, but at a status hearing, Kong told the court that he had relapsed and “used drugs.” The circuit court gave him another chance and he remained in the program. At the next hearing, Kong did not show up so the court issued a bench warrant. He got picked up and appeared in custody before the court.
At that point, Kong told the court he wanted to “self-terminate” himself and requested to have bail set. The court told him that he had a right to a termination hearing with a lawyer “to determine if terminat…