Hawai'i Legal News

State v. Walsh (HSC August 23, 2011) Background. Timothy Walsh was charged with assault in the second degree. HRS § 707-711(1)(b). Walsh was present at trial, including jury selection. At trial, there was evidence that Walsh was outside of Ocean's Grill and Bar in Kihei at around 1:30 in the morning arguing with his sister, Stephanie Walsh. A different group intervened and five men attacked Walsh. Walsh was punched, kicked, pushed and stomped on. Walsh started to slump away from the fracas and as he started moving away he swung at Kapena Kramer. Kramer broke his jaw. Walsh testified that he swung blindly as he was trying to get away from the mob attacking him. The bouncer at Ocean's testified. According to him, Walsh was calm, cool, and collected. Walsh was not cut or hurt when he approached Kramer and punched him. The bouncer believed that Walsh "blind sided a helpless person." By the time the police showed up, the entire affray was ove...

Cabral v. State (ICA July 28, 2011) OVERRULED! Background. The Cabrals and other plaintiffs sued Joni Scott and the State of Hawai'i. The lawsuit stems from a fatal car accident on Highway 11 on the Big Island . The plaintiffs settled with Scott, but proceeded to a bench trial against the State. The circuit court entered judgment in favor of the State and dismissed all remaining claims on April 20, 2007. Ten days later, the plaintiffs filed a motion for reconsideration. The circuit court denied the motion on June 7, 2007. On July 6, 2007, the parties submitted a one-page stipulation for a two-week extension to file a notice of appeal. The circuit court approved and ordered the extension. The stipulation did not assert any of the grounds for the extension and the circuit court approved the stipulation without making any findings. On July 18, 2007, the plaintiffs presented an ex-parte motion to extend time for filing a notice of appeal on the grounds that the partie...

Overruled Hamilton v. Lethem (ICA June 30, 2011) Background. Lily Hamilton filed a temporary restraining order (TRO) against Christy Lethem on behalf of their daughter, Amber. The TRO alleged three incidents in which Lethem physically assaulted Amber, threatened to physically assault her, and embarrassed her so badly that she suffered emotional distress. The TRO was granted and an evidentiary hearing was set. At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again . . . . Don't make me hit you again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said tha...

Lee v. United Public Workers (ICA June 29, 2011) Background. Amy Lee was an adult corrections officer for the Department of Public Safety and a member of the United Public Workers union. While working, she hurt her back and shoulder. The injuries left her unable to perform the usual and customary duties of an ACO. She returned to light duties and opted to participate in a State-run program in which she would be terminated if she could not find an alternative job. She was unable to find a suitable job and was terminated by the State. The UPW, at Lee's request, filed a grievance with the director of the Department of Public Safety. The collective bargaining agreement (CBA) provided that only the union could pursue the grievance once it was denied by the director of the department. The Department of Public Safety denied the grievance and the UPW notified Lee that it would not pursue the matter any further. Lee filed a complaint in the circuit court against her uni...

State v. Nesmith (ICA June 22, 2011) OVERRULED Background. Kevin Nesmith was charged by complaint of operating a vehicle under the influence of an toxicant: On or about the 7th day of January , 2010, in the City and County of Honolulu, State of Hawaii, KEVIN K. NESMITH did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant . . . . KEVIN K. NESMITH is subject to sentencing as a first offender in accordance with Section 291E-61(1)(b) of the Hawaii Revised Statutes . Nesmith moved to dismiss on the grounds...

State v. Kikuta (HSC June 8, 2011) Background. Cedric Kikuta was charged with assault in the second degree. HRS § 707-711(1). And Assault in the third degree. HRS § 707-712. At trial, his stepson, Justin, testified that when he was fourteen at the time of the incident. He was watching t.v. with his cousin, Chad, when Kikuta told him to feed the dog. He did. Then Kikuta noticed that the dog left a "stain" on the carpeted floor. Justin told him that he couldn't get the stain out. Kikuta said that if he could get it out, Justin is grounded for a year. Justin countered that if Kikuta could not, he could kick Kikuta's leg. Kikuta's leg was in a cast because he was recovering from surgery and walked around in crutches. Kikuta agreed. Kikuta left Justin's room. Then, according to Justin, Kikuta burst back into his room and started to push him. Justin grabbed one of the crutches and tried to get away. Kikuta then punched Justin in t...