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Showing posts from May, 2018

Restitution and its Consequences no Longer a Collateral Consequence at Change of Plea

State v. Kealoha (HSC March 15, 2018) Background. Kristopher Kealoha was charged with multiple offenses in three different case numbers. He pleaded guilty to all charges in exchange for an open five-year term of imprisonment running concurrent to each other. The circuit court pursuant to HRPP Rule 11 agreed to bind itself to the agreement. At the change-of-plea hearing and colloquy, Kealoha repeatedly said that as long he gets the open five year term “I’m good. I’m good with that.” No one discussed restitution.
At sentencing, everyone confirmed the plea agreement for prison. The court, however, ordered more than $4,500 in restitution. Kealoha was surprised and astounded at having to pay for the restitution. Shortly after sentencing, counsel withdrew and new counsel was appointed. Kealoha appealed.
Restitution is part of the “Maximum Penalty Provided by law.” Before accepting the defendant’s guilty or no-contest plea, the court is required to apprise the defendant in open court of and ens…

When the Right to Compulsory Process Requires a Continuance

State v. Williander (HSC April 4, 2018) Background. GJ Williander was charged with robbery in the second degree. On the first day of trial, Williander moved for a continuance on the grounds that his witness, Officer Darren Sunada was unavailable to testify. Officer Sunada was the arresting officer and talked to him about the alleged robbery. He argued that his testimony was necessary to establish Williander’s state of mind at the time of the incident. Williander proffered that Officer Sunada would have testified that he met with Williander that night and that he was too drunk to talk or make any sense. This went directly to the issue of whether he could have said anything to the complainant. Despite the best efforts to subpoena the officer, he was unavailable. He was on injury leave for months. The motion was denied.
At trial, the prosecution called the complainant who testified that he was walking on the street one night on Kapiolani Boulevard when he was hit from behind. He could not …

When Prosecutors get Personal, look for a New Trial

State v. Underwood (HSC May 21, 2018) Background. Brian Underwood was charged with kidnapping, carrying or using a firearm in the commission of a separate felony, and abuse of a family or household member. The complainant testified at trial. She was in a relationship with Underwood living in a two-story apartment on Oahu. She said she started finding messages on social media from women on the mainland and Australia claiming that they were in a relationship with Underwood. She confronted Underwood about it and they decided she would move out the next morning. The complainant printed 30 of the messages from the women, including pictures, and left them in various parts of the bedroom while Underwood slept. When he woke up, they began to argue. They moved downstairs so that they would not wake up the complainant’s sister. The complainant got out of the house and was in the lawn.
Underwood took a box of her things and threw it outside. At some point, the complainant was on the ground. Underw…

Only the Non-Indigent may pay for Extradition Costs

State v. Anzalone (HSC February 14, 2018) Background. Dawn Anazalone was charged with custodial interference in the first degree. She was arrested in Florida and extradited back to Hawaii pursuant to an arrest warrant issued by the family court. She did not challenge the extradition. She pleaded no contest pursuant to a plea agreement with the prosecution. At sentencing, Anzalone moved to defer acceptance of her no-contest plea. The prosecution requested the Court to order that she pay the $4,581.93 in costs and expenses for extraditing her. Over Anzalone’s objection the family court denied the motion for deferral and ordered she pay the total costs in extradition as restitution to the State, ordered payment in the amount of $50 per month as a condition of her probation, and issued repayment as a free-standing order. Anzalone appealed. The ICA concluded that the family court erred in considering the extradition cost as restitution, but concluded that it could be imposed as a condition …

The (Re)trials and Tribulations of Christopher Deedy

State v. Deedy (HSC December 14, 2017) Background. You should know this one by now. Christopher Deedy was a federal agent assigned to Honolulu in 2011. Late one night at a McDonald’s in Waikiki, Deedy shot and killed Kollin Elderts. He was indicted with murder in the second degree. At the first trial the prosecution and Deedy requested that no manslaughter instruction be read as an included offense. The circuit court agreed. The jury was hung and a mistrial was declared. Deedy was tried a second time. This time, the court instructed the jury about reckless manslaughter, assault in the first degree, and assault in the second degree over the objections of both parties. After six and a half days of deliberation, the jury acquitted Deedy of murder, but was hung on the included offenses. A second mistrial was declared. Before the third trial, Deedy filed a motion to dismiss on the grounds that a third trial violates his constitutional rights and the Hawaii Penal Code. The motion was denied …

Rebuttal is not a Second Chance at the Case in Chief

State v. David (HSC December 22, 2017) Background. Peter David was charged with murder in the second degree of Santhony Albert and assault in the second degree against Torokas Kikku. At trial it was undisputed that David stabbed and killed Albert. David raised self-defense. At trial, the prosecution called eight witnesses, including Kikku.
Kikku testified that David was the initial aggressor to the stabbing. She testified that everyone was at a party in Kalihi and the men were drinking beer and vodka. An argument broke out and some people stayed in Kalihi, while Kikku, David, Albert, and another person, Sam, went to an apartment in Waipahu. They drank more at the apartment. The police showed up, but they later left. David and Albert went downstairs to the parking lot for a while and returned. When they returned Kikku noticed a fresh scratch on David’s nose. He looked angry and said, “how come you do this to me, no man can do this to me.” David went back outside and demanded Albert to go…

Courts Need a True Exchange with Defendant

State v. Celestine (HSC April 12, 2018) Background. Ritalynn Celestine was charged with operating a vehicle while under influence of an intoxicant. Before the start of evidence at trial, the district court addressed Celestine:
Okay. Miss Celestine, to advise you of your right at trial, at some point in time the State will rest, okay, and you’ll have an opportunity to testify or remain silent. Should you choose to remain silent, the Court can infer no guilty because of your silence. Basically, you’ll be invoking your Fifth Amendment right against self-incrimination.
Okay, you understand?
THE DEFENDANT: Yes, sir.
THE COURT: However, if you do wish to testify, you need to be sworn in, you’re also subject to cross-examination by the State’s attorney. Okay?
Okay. And when the State does rest, okay, I’ll remind you again, okay, I have to finish this even though we’re doing this . . . piecemeal today. All right. Any questions? Okay. Thank you.
At trial, a police officer testified that he saw her dr…

Go Ahead and Testify. No one can stop you.

State v. Eduwensuyi (HSC January 18, 2018) Background. Benjamin Eduwensuyi was charged with operating under the influence of an intoxicant. He had a bench trial. At trial, before the presentation of evidence, the district court advised Eduwensuyi about testifying. The judge told him that he had “to advise you that you have a right to testify if you choose to do so.” Eduwensuyi said, “yes, your honor.” Then the judge said this:
And you also have a right not to testify. That’s up to you. I’ll question you further toward the end of the trial as to whether or not you want to waive either of these rights, to make sure that you’ve been fully informed of your rights and to make sure that any decision you make is your decision, it’s voluntary, okay. So your attorney can give you advice about whether or not you should or should not testify, but ultimately, it’s your decision. Do you understand that?
Eduwensuyi said, “yes.” Then the prosecution presented evidence. The prosecution called a single w…