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Showing posts from February, 2016

ICA's Foray Into SFSTs

State v. Tsujimura (ICA January 27, 2016) Background. Lester Tsujimura was charged with a single count of operating a vehicle while under the influence of an intoxicant in violation of HRS § 291E-61(a)(1). Officer Thomas Billins was on duty in his “blue and white” when he saw Tsujimura driving on the Moanalua Freeway. Tsujimura was operating an SUV on the far right lane when Officer Billins saw him swerve onto the fog line on the right. Then the SUV moved across the lane and straddled the white divider lane on the left side. Officer Billins saw Tsujimura do this “several times” before he pulled him over.
When he approached the SUV he saw Tsujimura as the operator of the vehicle and saw that he had “a very flush red face,” slurred speech, and red, watery eyes. He also smelled the odor of an alcoholic drink coming from his breath and vehicle. Officer Billins asked him to get out of the car to perform the Standardized Field Sobriety Tests (SFSTs). Tsujimura informed Billins that had an old…

When an Officer Says Don't Make a Statement, Don't

OVERRULED!!

State v. Trinque (ICA January 29, 2016) Background. Rick Trinque and Miles Martinez were indicted with commercial promotion of marijuana in the first degree and prohibited acts related to drug paraphernalia. The Kauai Police Department was investigating a marijuana grow operation somewhere in the Kilauea area. Officers heard about over 1,000 plants being grown in a pasture. One night, while the officers were conducting surveillance of the pasture, they came upon Trinque and Martinez. The officers arrested them. Trinque was handcuffed. They were in the pasture surrounded by tall grass and were trying to figure out how to get out of the pasture.
One of the officers asked Trinque how they got into the pasture. Trinque responded that they had a ladder next to a banana tree leaning up against a fence.
Once they got out of the pasture, Trinque was ordered to sit on a bench at a nearby house. An officer assigned to watch Trinque started talking to him. He told him that he worked on a…

Making Sense of the Statute of Limitations "Defense"

State v. Abdon (HSC January 12, 2016) Background. June-June Mas Abdon was indicted with the offense of sexual assault in the first degree by way of forcing his penis into the complainant’s vagina. It was alleged that the offense took place “[o]n or about the 1st day of June, 1997, to and including the 30th day of June, 1997.” The indictment alleged that the complainant was born on April 26, 1988, turned eighteen in 2006, and was still alive. The indictment was dated on April 24, 2012—two days after the complainant’s 24th birthday.
At trial, the complainant confirmed her birthday was on April 26, 1988. She identified Abdon as her uncle and testified that in June 1997, when she was nine years old, Abdon sexually assaulted her in a bedroom by touching her vagina with his hand and forcing his penis into her vagina. She did not report the incident until she was in college in 2010. Abdon testified and denied touching her inappropriately.
After the evidence, the parties discussed jury instructi…

Rule 48 Doesn't Take a Sick Day

State v. Abregano (HSC December 11, 2015) Background. Scott Abregano was charged with violating a protective order in which his wife was the petitioner. Trial was delayed for 30 days due to illness on the part of the trial judge. The judge commented that she could not proceed because she was “coming down with the flu bug.”  Because of the continuance, trial commenced fourteen days after the six-month mark in HRPP Rule 48. Abregano filed a motion to dismiss, but it was denied on the grounds that a sick judge was “good cause” excusing the delay.
At trial, Abregano’s wife testified that she obtained a protective order from the family court prohibiting Abregano from coming within 100 feet from her and his step-daughter or within 100 yards of the step-daughter’s school or home. She then testified that at the daughter’s softball game she saw Abregano and estimated that he was around 30 to 40 feet away from her (the wife). She called 911. The stepdaughter also testified that she saw Abregano a…

Failure to Ask for Instruction, Argue Issue on Appeal Doesn't Seem to Matter

State v. Henley (HSC December 22, 2015) Background. John Henley was charged with assault in the third degree. HRS § 707-712(1)(a). At trial, the complainant, a 68-year-old security guard, went to check out a party one of the condos at the Colony Surf for a noise complaint. The police showed up and asked him to escort two people off the property, including Henley. The complainant testified that they were rude to him and then Henley head-butted him in the face and punched him when he fell to the ground. As Henley kicked him, he squeezed his testicle to stop him. It worked. Henley ran off into Kapiolani Park and the police apprehended him. An investigating officer testified about Henley’s injuries. The defense called the other guy, Kalanikapu Copp. Copp testified that the complainant got into a fight with Henley and tried to choke him out or put Henley in an arm bar. Henley also took the stand and testified that the security guard attacked him.
Neither the prosecution nor Henley requested …

The Prior-Convictions Exception has been Apprendied

State v. Auld (HSC November 24, 2015) Background. Jayson Auld was convicted of one count of robbery in the second degree. After the verdict but before sentencing the prosecution moved to impose mandatory minimum terms of imprisonment based on a prior conviction. This was the first official notice of the State’s intention to seek the mandatory minimum. It was never pleaded in the indictment, presented to the grand jury, and presented after the verdict before the petit jury. The circuit court granted the motion and sentenced Auld to prison for a period of ten years with a mandatory minimum of 6 years and 8 months. He appealed. On appeal, Auld argued that the imposition of the mandatory minimum was in violation of his right to have each and every element proven before a jury beyond a reasonable doubt. The ICA affirmed. The HSC accepted his petition for writ of certiorari.
The Wild, Weird World of Sentencing Laws. Defendants have the constitutional right to have each and every element of an…