Hawai'i Legal News

  State v. Perry (HSC March 8, 2023) Background. In 2002, Jason Perry was indicted with two counts of murder in the second degree. HRS § 707-701.5 (1993). At his trial in 2003, a co-defendant testified against him. Perry took the stand and testified too. Their testimony centered around count 2 and the shooting of the possible witness to the killing of the decedent in count 1. The co-defendant testified that Perry shot the witness. Perry said it was the co-defendant.   The jury returned a guilty verdict for count 1 and answered a special interrogatory establishing that Perry was both a principal and accomplice in the murder. In count 2, the jury found Perry guilty as an accomplice only. The circuit court—with the Hon. Judge Karen S. Ahn presiding—gave another special interrogatory about whether the prosecution proved that Perry was carrying or using a semi-automatic weapon at the time of the killing in count 2. The jury answered that he had. This fact is needed to impose...

Flubacher v. State (HSC March 21, 2018) Background. Robert Flubacher pleaded guilty to multiple felony offenses in three separate cases. The prosecution filed a motion for extended terms of imprisonment prior to sentencing. The circuit court granted the motion and sentenced Flubacher to life imprisonment with the possibility of parole and other terms of imprisonment. He did not appeal. Judgment became final on October 13, 2003. Two years later he filed a petition pursuant to HRPP Rule 40 collaterally attacking the sentence and that was denied. In 2014 he filed a second petition alleging an unconstitutional sentence pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000). The circuit court denied the petition. The ICA affirmed. Flubacher petitioned for certiorari. The Long, Slow Death of Extrinsic and Intrinsic Factors in Hawaii. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonab...

State v. Monteil (HSC December 23, 2014) Background. James Monteil was charged with one count of prostitution. HRS § 712-1200(1). He pleaded not guilty. At the start of the bench trial, the district court judge engaged in a colloquy about his rights. The court asked Monteil if he understood that no one could force him to testify, that no one could force him to present evidence, that the State had to prove its case beyond a reasonable doubt, that if he did wish to testify, he’d have to testify under oath and be subjected to cross-examination by the prosecutor, and that he could wait to decide to testify until after the State finished presenting its case. Monteil said he understood these rights. The trial court did not inform Monteil that if he did not testify, his silence could not be used against him in deciding the case. At trial, HPD Sgt. Chad Taniyama testified that he posted an ad on “backpage.com” entitled “ExOtIC BeAuTy AwAiTs You ToDaY.” Here’s the ad: Hey fellas my ...

Christian v. State (ICA November 27, 2013) Background. In early 2008, Edmund Christian was charged with a single count of operating a vehicle while under the influence of an intoxicant under both theories—having over 0.08 or more grams of alcohol per 210 liters of breath and having an amount sufficient to impair his normal mental faculties and guard against casualty—as well as disobeying a police officer. The DUI charge did not explicitly allege that Christian was operating on a “public way, street, road, or highway” as defined in HRS § 291E-1. Months later, Christian took a plea deal and the second count was dismissed in exchange for pleading no contest to the DUI charge. He was fined $700 with fees and “assessments.” He did not challenge the sufficiency of the charge appeal. Almost two years later, in 2010, Christian filed a petition pursuant to Hawaii Rules of Penal Procedure Rule 40 that collaterally attacked the conviction. In the petition, Christian argued that the failur...

Garcia v. State (HSC December 21, 2010) Background. David Garcia pleaded guilty to five counts of robbery in the 2d degree. He was sentenced to ten years with a mandatory minimum of three years, four months for the first count. For the remaining four counts, he was sentenced to ten years running concurrently. However, count I would run consecutively with counts II-IV. The Hawai'i Paroling Authority (HPA) fixed a minimum term for each count at seven years. Garcia received credit for each of the five counts. After that, the HSC held in State v. Tauiliili , 96 Hawai'i 195, 29 P.3d 914 (2001), that pursuant to HRS § 706-671, jail credit for consecutive terms must be given in the aggregate, not for each term. The Department of Public Safety (DPS) issued a written policy effective January 1, 2005, for calculating credit in light of Tauiliili . The HPA recalculated Garcia's credit. Garcia filed a petition pursuant to Hawai'i Rules of Penal Procedure (H...

Loher v. State (ICA July 14, 2008) Background. Loher was on trial for kidnapping and attempted sex assault in the first degree. He was represented at trial by Kugiya. To Kugiya's surprise, the State rested on the afternoon of the first day of trial. Kugiya asked the court to present Loher's case the next day, when it could get the other two witnesses to testify. The circuit court refused and instructed Loher that he had to choose between testifying that day or else he would waive his testimony. Kugiya objected because Loher may not have to testify depending on the testimonies of the two other witnesses. The circuit court still refused and Loher testified. The trial continued the next day, the two other witnesses testified, and the jury found Loher guilty of attempted sex assault in the first degree. The State moved for various enhanced sentencing. Kugiya withdrew and a new lawyer, Shintani, took over. Shintani did not oppose the sentencing motions. Loher was sente...

State v. Jess (HSC March 31, 2008) Background. Jess was sentenced by the state circuit court under the extended sentencing laws as a "multiple offender" and a "persistent offender." (HRS §§ 706-661 and 706-662(4)(a)). Jess petitioned under the federal habeas corpus statute (28 U.S.C. § 2254), and argued that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, the sentence was unconstitutional. The U.S. Dist. Ct. agreed and ordered the circuit court to re-sentence Jess. At the re-sentencing, the State sought an extended term by empanelling a jury to find beyond a reasonable doubt those facts that would warrant the extended term. Jess objected on the grounds that the statutes did not provide for a jury and the State was precluded from asking for a jury. The circuit court reserved the question for the HSC. Since then, the US Supreme Court came down with Cunningham v. California , 127 S.Ct. 856 (2007). The HSC requested supplemental brief...

State v. Cutsinger (ICA January 30, 2008) Background. Cutsinger was charged with burglary in the 2d (HRS § 708-811) and possession of burglar's tools (HRS § 708-822(1)(a)). He pleaded guilty to both counts. The State filed a motion for extended sentencing on the grounds that he was a "persistent offender". HRS §§ 706-661 and 706-662(1). The motion was granted. Cutsinger then filed a motion to reduce his sentence based on, inter alia, Apprendi v. New Jersey , 530 U.S. 466 (2000) and progeny. That part of the motion was denied, and Cutsinger was sentenced to 10 years of imprisonment on Sept. 9, 2006. Cutsinger filed his notice of appeal on Sept. 27, 2006. Pending the appellate disposition, Cunningham v. California , 549 U.S. ___ (2007) and State v. Maugaotega , 115 Hawai'i 432, 168 P.3d 562 (2004) came down from the US and Hawai'i supreme courts respectively. The cases held that the statutes used to extend Cutsinger's sentence were unconstitutional because the...

State v. Maddox (ICA December 11, 2007) Background. Mickey Maddox went over to his ex-girlfriend's house and got into a fight with Dale Mota, his ex's new squeeze. Maddox stabbed Mota in the chest with a utility tool. The blade missed his heart and all vital organs. Mota was taken to the hospital where he was treated by Dr. Nelson. The wound was two-inches long and went between Mota's ribs right next to his heart. There was no need for a surgery or any indication of a severe injury such as a heart laceration, vessel cut, or collapsed lung. Mota's wound was cleaned and bandaged w/o stitches. He was released w/in 24 hours. Maddox was charged with first-degree assault (HRS § 707-710(1)). At trial, Dr. Nelson testified that Mota's wound created a substantial risk of death because it was a stab wound directly towards his heart. Dr. Nelson also testified that it was a miracle how the blade did not injure any important organs. Maddox testified at trial. He testified that...

2007 Haw. Session Laws (Special Session) HB No. 2 (October 31, 2007) The Legislature Strikes Back. Earlier this month, by order of the US Sup. Ct., the HSC, in State v. Maugaotega , held that the extended sentencing statutes violated the Sixth Amendment. The court found the law unconstitutional and refused to order the empanelling of a jury to sentence Miti Maugaotega on the grounds that the legislature intended to keep sentencing matters w/in the discretion of the court. Hmm. Following the heels of the Superferry-Bail-Out bill, the Legislature amended HRS §§ 706-661, -662, and -664 because the HSC "declined to exercise its inherent judicial power to order on remand that a jury be empanelled." Upping the Ante. Extended sentencing is available only when the defendant has been convicted of a felony. For murder in the 2d, the sentence is upped to life w/o parole; class A felonies are upped to life; class Bs upped to 20 years; and class Cs for 10 years. The sentencing court ord...