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Showing posts from 2015

Breathing the Constitution into the Breath Test

State v. Won (HSC November 25, 2015) Background. Yong Shik Won was pulled over for speeding. The officers suspected that he had been drinking so they ordered him out of the car. Won submitted to field sobriety tests. The officers arrested him for operating a motor vehicle while under the influence of an intoxicant. They took him to the police station. There, they handed him a form and read it to him. The form stated that any person operating a vehicle on a public road is deemed to have given consent to a test for purposes of determining alcohol concentration.
The form also read that Won he could refuse to take a test but “if you refuse to submit to a breath, blood, or urine test, you shall be subject to up to thirty days imprisonment and/or fine up to $1,000.” Won picked a breath test. The police had him blow into a machine called the Intoxilyzer 8000. His BAC came to 0.17 grams of alcohol per two hundred ten liters of breath (which is over the limit of 0.08). Won moved to suppress the …

Lost Wages are Compensable Under the Restitution Statute.

State v. DeMello (HSC November 2, 2015) Background. Lawrence DeMello was charged with harassment and trespassing. He was found guilty after a bench trial. At trial, the complainant testified about an altercation he had with DeMello. Subsequently, the District Court held two evidentiary hearings on restitution claims. Again, the complainant testified about the altercation and included testimony about experiencing chronic pain, blurred vision, and having difficulty standing. She also testified that because of these injuries, she missed work as a hairdresser for ten days. She claimed lost wages in the amount of $1,155.12. DeMello argued that the lost wages were not part of the criminal restitution claim. The district court disagreed and ordered the lost wages as restitution. DeMello appealed the ICA vacated the order and held that lost wages were not compensable. The State petitioned the HSC.
Restitution and Lost Wages.“The court shall order the defendant to make restitution for reasonable…

Traffic Infractions Do not Bar Subsequent Prosecutions

Traffic Infractions Do not Bar Subsequent Prosecutions State v. Kalua (ICA September 2, 2015) Background. Manaiakalani Kalua received two citations: one for excessive speeding in violation of HRS § 291C-105(a)(1) and one for regular-kine speeding in violation of HRS § 291C-102(a)(1). Excessive speeding means the vehicle is going either 80 mph or more or the vehicle is in excess of 30 mph of the speed limit.
The two charges are based on two separate incidents. In the notice of traffic infraction, Officer T. Koyanagi measured Kalua’s speed by radar and stated that he was going 71 mph in a 55-mph zone and that Officer Koyanagi tried to stop him as the speed limit dropped to 40 mph. In that zone, Officer Koyanagi cited Kalua for going 73 mph, which formed the basis for the excessive speeding.
For the regular-kine speeding, Kalua had to answer the citation within 21 calendar days or the court would enter a default judgment. He paid the speeding ticket and the default judgment. Regular speeding…

Ditching your Attorney is Tougher than it Seems

State v. Phua (HSC June 30, 2015) Background. Han Kamakani Phua was arrested and charged with harassment after the complainant and others came onto his property and Phua got into a non-violent quarrel with them. Phua appeared in the District Court of the Third Circuit with his lawyer and a Mandarin interpreter. He entered a not guilty plea demanded a trial. At the trial date, the interpreter didn’t show up so Phua requested a continuance. The prosecution objected and presented two witnesses. The witnesses testified that Phua could speak, understand, and communicate in the English language when he worked as a stock boy at Walmart and after he had been arrested. Phua’s witnesses testified that although he could speak English, the language is not his first language (Malay and Chinese are). He had a hard time with legal documents and legal principles. Judge Joseph Florendo of the District Court denied the motion.
At the end of the trial, the court found Phua guilty as charged, granted couns…

Prosecutor's Office can Represent the State in Bail Forfeiture Proceedings

State v. Miles (ICA June 23, 2015) Background. Robert Miles was charged with felony offenses. His bail bond company, Exodus Bail Bonds, posted bail on his behalf in the amount of $5,000. Miles pleaded guilty, but did not show up for his sentencing hearing. The circuit court issued a bail forfeiture judgment on October 8, 2012. On November 21, 2012, the prosecuting attorney’s office sent a letter to Exodus notifying it that the bail forfeiture judgment had been filed. Exodus filed a motion to set aside the forfeiture on the grounds that Miles had surrendered. The circuit court wanted more proof of the actual surrendering and denied the motion without prejudice. No additional proof was presented to the court and the motion to set aside remained denied. Exodus appealed.
The Prosecutor has Standing to Represent the State at a Bail Forfeiture Hearing. A surety may obtain relief from a bail forfeiture judgment “upon good cause shown why execution should not issue[.]” HRS § 804-51. Absent a go…

A Trial Court's Duty to See if the Jury was Under the Influence

State v. Chin (HSC June 25, 2015) Background. Susan Chin was indicted with theft in the first degree, attempted theft in the first degree, and money laundering. Chin was the caretaker for the complainant, and the charges alleged that Chin took the proceeds from the sale of the complainant’s home, use of the complainant’s annuities and monies, and other benefits. Chin had a jury trial. In the middle of the trial, the prosecution’s witness, Charles Bowen, testified. The jury found Chin guilty of some, but not all charges.
Chin filed a motion for a new trial and included a declaration of Bowen. Bowen was the complainant’s neighbor who provided evidence for the prosecution. Bowen testified that he had a job with the U.S. government and had a security clearance. In the middle of the trial, a juror approached him in the bathroom. The juror did not say he was a juror, but handed him a business card. The card appeared to indicate that the person was a retired United States Navy service member. …

The Right to Counsel of Choice is Strong Enough to Outweigh a Jury that’s Ready to Go.

State v. Reed (HSC June 17, 2015) Background. Ikaika Reed was charged with assault in the first degree. The allegation stems from an incident at the Waianae Boat Harbor, where during the early morning hours, Reed punched a guy in the face while holding the knife and caused a laceration across the guy’s face from “the tip of his ear to the tip of his nose.” If convicted, he was looking at a ten-year prison term with a mandatory minimum of three years and four months.
Shortly after his arraignment, the Office of the Public Defender was appointed to represent him. Twenty-seven days after the appointment, the public defender moved to continue trial because he had not received a copy of the grand jury proceedings. Trial was continued. About a week before trial, Reed moved to continue again. The motion was continued briefly. Five days before the trial date, Reed told the court that he was looking for retained counsel and requested more time. The prosecution did not object, but the circuit cou…

Sending a Letter Bound for the HPA is not “Remaining Silent” at the HPA.

State v. Garcia (HSC June 15, 2015) Background. Eddie Garcia was charged with one count of continuous sexual assault of a minor under the age of fourteen years, a Class A felony, and one count of abuse of family household member. He pleaded not guilty and prepared for trial. After the pre-trial voluntariness hearing, Mr. Garcia reached a plea agreement with the prosecution. Mr. Garcia agreed to plead no contest to both counts and agree to 20 years prison concurrent (he wouldn’t have to do 21 years). The prosecution agreed to “remain silent at the minimum term hearing” in front of the Hawaii Paroling Authority.
Before sentencing, Garcia’s family and friends submitted to the pre-sentence investigator letters of support of him. His daughter also wrote a letter asking the Court to lessen his sentence because her mother was struggling without him. The prosecution also submitted a letter and three exhibits. The letter pointed out “some aggravating factors” even though it simultaneously recogn…

Huge Landowners Can’t have a 1,000-Acre “Residence, Including Yard.”

State v. Guyton (HSC June 8, 2015) Background. John Varel got a restraining order and later an injunction against Evans Guyton. The order prohibited Guyton from “[e]ntering or visiting [Varel’s] residence, including yard and garage.” Varel lives on a 1,000-acre property out in Waihee on Maui.  Guyton was later charged with violating a restraining order or injunction. HRS § 604-10.5(h). Specifically, the complaint alleged that Guyton of “entering and/or visiting the premises including yard and garage of the residence, and/or place of employment.”
At his trial, Varel described his vast property, including a macadamia nut farm, conservation lands, and his residence. The property starts at the highway and goes all the way up the mountains to the watershed. He testified that he never gave anyone permission to dirt bike on the property. Todd Arnold testified that he was hiking on the Varel property when he saw Guyton riding his dirt bike with others along the ridges near the outer parts of th…

ICA: We Mean it When we Say Exigency

State v. Ramos-Saunders (ICA April 23, 2015) Background. Koalaukani Ramos-Saunders was indicted with commercial promotion of marijuana in the first degree and unlawful use of drug paraphernalia. Ramos-Saunders moved to suppress all evidence resulting from a warrantless search of the residence.
One morning, the Honolulu Police Department received a “dropped 911 call” from a number registered to Walter Rosskopf listed at a housing unit—Unit B at an address off of Kamehameha Highway. Two officers went to the address and arrived to Unit B. There, they talked to a woman named Paula Burgess. She told them that he used to live in Unit B, but he moved to Unit A. She added that he had prostate cancer. The Units are two stand-alone residences separated by about 750 feet. The officers moved way from Unit B and went to Unit A. They found no one in Unit A.
As they walked around the residence the officers thought they saw the barrel of a firearm with a silencer. The residence was also in “disarray” wi…

Confrontation Clause Can’t Stop (Certain) Affidavits of Records Custodians

Background. Ubaldo Cruz was on trial for allegedly committing multiple sexual assaults on his neighbor’s daughter. At trial, Cruz objected to the admission of cell phone records over a three-month period. The circuit court denied the request, but ruled that a failure to call the custodian of records to testify at trial was a violation of Cruz’s constitutional right to confront witnesses. The next day, the prosecution sought to introduce the records with a certified copy of a declaration from the custodian of records on the grounds that they met the business records exception to the hearsay rule. The prosecutor argued that business records “are specifically excluded under Crawford.” The circuit court admitted the records, Cruz was found guilty. Cruz appealed.
The Confrontation Clause and Documents. The Confrontation Clause prohibits the use of “testimonial” statements at trial when the declarant is not present and there was no meaningful opportunity to testify. Crawford v. Washington, 5…

Fleshing out when you can use Preliminary Hearing Testimony at Trial

State v. Nofoa (HSC April 14, 2015) Background. Toi Nofoa was charged with one count of kidnapping and one count of terroristc threatening in the second degree. In September 2008, Nofoa was held by a judicial determination of probable cause. Attached to the JDPC was an affidavit from an HPD officer that containing hearsay statements from the CW, Nofoa’s girlfriend. Nofoa had a preliminary hearing.
At the preliminary hearing, the CW testified that she was in a relationship with Nofoa for about two and half years, and she ended it. She testified that about a month after the breakup, Nofoa called and asked if she was “seeing another guy.” She said it was none of his business. That night Nofoa approached her as she was walking back to her car. The CW said that he wanted to talk to her and she started walking with him. She said he started to get aggressive and then pulled her. As she tried to walk away, he put her in a chokehold, said that he had a gun, and told her to get into the car. She …