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Showing posts from 2016

Declaring a Mistrial after Verdict Reached, but Before it's Read

State v. Gouveia (HSC October 25, 2016) Background. Royce Gouveia was tried for manslaughter. At the end of the trial, the jury sent a communication informing the court that it had reached a verdict. Four minutes later it sent this note: “Concern. This morning on the prosecution’s side of the courtroom there was a man, shaved head, glaring and whistling at defendant. We have concern for our safety as jurors.” The circuit court conducted voir dire of the jurors—before opening the verdict—to determine what effect, if any, the incident had on them.
All twelve were questioned. Four of them said that they saw a man sitting on the “prosecution’s side” of the courtroom whistling and glaring at Gouveia during the trial. The incident came up in the jury room before the jurors reached a verdict. One juror had a safety concern. Another juror said that it might have had an impact on “other people’s decision[.]”
The prosecution moved for a mistrial over Gouveia’s objection. The circuit court declared…

They're Trespassers, not Burglars

State v. King (HSC December 13, 2016) Background. Rudolph King walked into the Times Market at Kaimuki and stole a pack of Reese’s Peanut Butter Cups and sweet tea totaling $8.66. He was stopped, detained, and arrested for theft in the fourth degree. A loss prevention officer working for Times handed King a notification to stay off property. The notification warned him to stay off all Times properties in the State and lasted one year. About a month later, he was spotted at the Times near McCully. He stole a ribeye roast valued at $55.55. After he was arrested he acknowledged that he had been issued a notification from the Kaimuki Times. King was charged with burglary in the second degree. He filed a motion to dismiss on the grounds that he could not be charged with the burglary, but rather than trespass statute. The motion was denied. The circuit court granted the motion on the grounds that the prosecution was attempting to convert two petty misdemeanors into a Class C felony. The pros…

HSC: The Constitutional Right to Inspect the Scene (Even on Private Property!)

State v. Tetu (HSC December 5, 2016) Background. Robert Tetu was charged with burglary in the second degree. Specifically, it was alleged that Tetu burglarized the basement of Maunaihi Terrace, a condominium in Honolulu. Throughout the discovery process, the defense received relevant police reports, surveillance footage, eight photographs, and two diagrams of the scene. Before trial, Tetu’s lawyer went to the condominium to inspect the scene but was barred entry and instructed to coordinate with the property manager. Tetu’s lawyer emailed a request and cc’d the prosecuting attorney to the property manager. The manager responded that it would present the request to the board of directors for the condominium. Counsel received no further response.
Tetu filed a motion to compel discovery on the grounds that it sought access to inspect the premises. Specifically, he argued that the “defense must examine the area from its own perspective.” He also argued that the disclosed reports, diagrams, …

You Can't Legislate Exigency

State v. Niceloti-Velazquez (ICA December 5, 2016) Background. Bernard Niceloti-Velazquez was charged with operating a vehicle while under the influence of an intoxicant after he had been arrested and subjected to a mandatory testing of his blood. Velazquez moved to suppress the blood draw on the grounds that it was a warrantless search and the prosecution could not justify the intrusion. The motion was denied and he was convicted. Velasquez appealed.
Mandatory Blood Draws Regulated by Statute . . . The authority to draw blood without consent from the driver comes from HRS § 291E-21:
In the event of a collision resulting in injury or death and if a law enforcement officer has probable cause to believe that a person involved in the collision has committed a violation of section . . . 291E-61 . . . the law enforcement officer shall request that a sample of blood or urine be recovered from the vehicle operator or any other person suspected of committing a violation of section . . . 291E-61.

Failing to Check-in is not “Custody” and is not Escape

State v. Paris (HSC August 8, 2016) Background. Eugene Paris had been sentenced and at some point entered into a work furlough agreement. Under the terms of the agreement, Paris would be released from jail or prison and subject to certain conditions. The terms identified his furlough home in Wahiawa and required Paris to make frequent check-ins. Failure to comply with the check-in is deemed an “administrative” escape and makes no reference to criminal liability. Paris was later charged with Escape in the Second Degree in violation of HRS § 710-1021. Paris moved to dismiss the charge on the grounds that the failure to include the statutory definition of the term “custody” rendered the pleading deficient. The motion was denied. At trial, the prosecution presented a theory that work furlough was a form of “custody” and that Paris’s failure to comply by not checking in was a form of escape. Paris was found guilty. The ICA affirmed.
Insufficient Charging Instrument . . . “In all criminal pro…

It’s not a Search when you Invite the Cops into your Garage

State v. Phillips (HSC September 30, 2016) Background. Lincoln Phillips was convicted of attempted murder in the second degree. Phillips called the police to his home early one morning and reported that he came home to find his wife suffering from injuries and trauma to her head. Phillips told the police that he did not know the identity of the person who did it. Firefighters and police found Phillips frantic and sweating. He was pacing inside and outside the house by the driveway. As the police investigated, they discovered a hammer on top of a cooler in the garage. The hammer might have had a spot of blood on it. At one point an officer blew his nose and threw a napkin away in the trashcan within Phillips’ home. He opened the trashcan and saw clothes rolled up in it. He did nothing and covered it back up. Phillips was taken to the station to give a statement to a detective. Police officers later obtained a search warrant and searched the home and Phillips’ car. They took the hammer a…

Waiving your Rights has Never been this Tough

State v. Krstoth (HSC August 9, 2016) Background. Takson Krstoth pleaded guilty to murder in the second degree. At the change-of-plea hearing, Krstoth appeared with a Chuukese interpreter. A colloquy between Krstoth and the court revealed that Krstoth was 22 years old with a tenth-grade education. He did not read or write in the English language. The circuit court accepted the plea and set the case for sentencing. Before sentencing, the court received a letter written by someone else and purportedly signed by Krstoth. The letter stated that he entered the plea agreement because he had been frightened terribly by his defense counsel. After the letter, Krstoth’s counsel moved to withdraw as counsel and a new lawyer was appointed. Krstoth then filed a motion to withdraw the guilty plea on the grounds that the interpreter was not informing Krstoth of what was being said and was simply telling him to “say yes” and “say no.” Krstoth also argued that he did not authorize his initial lawyer to…

Traffic Stops and Nothing More Does not Justify a Canine Screen

State v. Alvarez (HSC June 30, 2016) Background. Elujino Alvarez was driving a vehicle and stopped by the police because the police saw that one of the passengers was not wearing a seatbelt. The officers recognized Alvarez from prior unrelated drug investigations and called another officer to come to the scene with his police dog to conduct a canine screening on the car. They waited for the dog and the dog alerted to the presence of narcotics. Alvarez was arrested. The police obtained a search warrant for the car and found methamphetamine and drug paraphernalia. Alvarez moved to suppress the evidence. The motion was denied. Alvarez entered a conditional plea allowing to appeal the denial of the motion. The ICA affirmed the denial. Alvarez applied for a writ of cert.
Traffic Stops, the Fourth Amendment, and You. “A stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures.” State v. …

Juveniles Cannot be Sentenced to Life Without Parole (but may be Sentenced to Life With)

State v. Tran (ICA July 14, 2016) Background. Dat Minh Tran was seventeen years old in a car with his friends when they were involved in a chase through Waikiki with a red truck. Tran stood up from the truck and fired two shots at the red truck while standing in his car through the sunroof. He shot one of the people in the truck, but that person did not die. The second shot hit the truck’s radiator. The family court waived jurisdiction and he was tried as an adult for attempted murder in the first degree. He was found guilty. The circuit court sentenced Tran to life imprisonment without the possibility of parole. That was in 1997.
In the wake of three cases from the United States Supreme Court related to the sentencing of juveniles, Tran filed a petition to set aside his sentence. The petition was granted. After a hearing on the petition, the circuit court sentenced Tran to life with the possibility of parole. Tran appealed. Later, the Legislature amended the murder sentencing statute a…

When Friendly Officer Chit-Chat Becomes Interrogation

State v. Kazanas (HSC June 21, 2016) Background. Kazanas was indicted with criminal property damage in the first degree and unauthorized entry into a motor vehicle in the first degree. During the early morning hours of November 1, 2011, Kazanas was taken to the hospital to treat injuries sustained to his hand. An officer accompanied him. The officer informed him that he was under arrest for UEMV “multiple times” but never apprised him of his constitutional right to remain silent, his right to attorney, and the admonition that anything he said could be used against him in a court of law. She did, however, instruct Kazanas not to talk about the case or “say anything about what he had been arrested for.”
At the hospital, Kazanas was making rude comments and other patients could hear him. The hospital staff moved him away from the other patients. A police officer sat about six feet away from him. Wanting to keep his mind off of other things and wanting to calm him down, the officer asked Ka…

The Intricacies of the Felon-In-Possession Statute

State v. Frazer (ICA May 13, 2016) Background. Michael Frazer was indicted with one count of promoting a dangerous drug in the first degree and violation of a protective order. He pleaded guilty to both counts and moved for a conditional discharge pursuant to HRS § 712-1255. The circuit court granted the motion and placed him on probation for five years in count one and two years on count two.
Four years later, Frazer gets charged with one count of first-degree terroristic threatening with use of a dangerous weapon—a semi-automatic firearm and one count of possession of a firearm while “under indictment” for a felony pursuant to HRS § 134-7(b). Frazer moved to dismiss count two on the grounds that he was not “under indictment” and the circuit court agreed. In its order granting the motion, the circuit court concluded that a person who has been granted a conditional discharge is neither “under indictment” nor convicted. The circuit court limited the language of “under indictment” to pret…

Sometimes “Reasonable Removal” means no Removal at all.

State v. Bowman (HSC May 9, 2016) Background. One afternoon, Officer Romeo Fuiava was driving along the Hawaii Belt Road near Paauilo on the Big Island in the Hilo-bound direction. He saw a green flatbed truck driving in the opposite lane with containers filled with lettuce or cabbage. About half a mile down the road he saw cabbage or lettuce leaves on the highway and on the side of the road. There were no other vehicles with cabbage or lettuce. Officer Fuiava turned around, caught up with the truck and pulled him over. The driver was Max Bowman. Officer Fuiava cited Bowman with HRS § 291C-131, spilling a load on highways.
Bowman went to trial in the district court. At trial, the prosecution called Officer Fuiava, who testified about his observations. Bowman, appearing pro se, testified to the court that he was a farmer carrying agricultural products from the field during harvesting. He admitted that at some point, the cabbage spilled onto the highway. “It was trimmings. I actually drov…

Tightening the Reins on Expert Testimony

State v. Kony (HSC May 4, 2016) Background. Last Kony as indicted with various charges of sexual assault in the first degree and sexual assault in the third degree. The complainant was a minor at the time of the alleged offense. The CW was living in the home and was fifteen years old. Kony was the boyfriend of the CW’s half-sister and father of two children in the home.
Before trial, Kony moved to exclude the testimony of Dr. Alexander Jay Bivens on the grounds that his testimony would be irrelevant and, if relevant, its probative value would be substantially outweighed by the danger of unfair prejudice in violation of HRE Rule 403. At the hearing on the motion, the prosecution responded that Dr. Bivens’ testimony was needed to explain to the jury why the CW’s reporting of the alleged assaults was delayed. The prosecution asserted that it would limit Dr. Bivens to the factors that would hypothetically lead to delayed reporting. The circuit court denied the motion and would allow Dr. Biv…