Posts

From leading questions to closing argument: a steady drip of prosecutorial misconduct

By B. Lowenthal -
  State v. Cardona (HSC September 20, 2024) Background. Oscar Cardona was indicted with murder in the second degree. Before trial, he notified the court and the prosecution that he suffers from an eye disease called myopic degeneration, has extremely blurred vision, and wears glasses. At the time of the incident, his glasses were damaged and had been he could not see. The circuit court—with the Honorable Judge Kevin Morikone presiding—ruled that Cardona could present the evidence at trial.   At trial, the prosecution presented evidence that one summer’s night in Waikiki, Elijah Horn was talking to some women when Elian Delacerda and Osvaldo Castaneda-Pena approached them. The men got vulgar and aggressive. Horn got scared and called Cardona to come help because he was like a father figure to him. Cardona showed up and pulled out a gold knife. Cardona and Horn told Delacerda and Castaneda-Pena to leave.   Delacerda and Castaneda-Pena attacked Horn. Horn hit Castaneda-Pena wit
Post a Comment
Read more

ICA: poor people outside the circuit of their trial either appear in chains and in custody or pay their own way

By B. Lowenthal -
  State v. Campbell (ICA September 19, 2024) Background. Corey Campbell was charged with assaulting a police officer in the first degree and two petty misdemeanors while she was on vacation from Massachusetts. She was arrested and detained because she could not afford to bail out. The court let her out on conditions of release and allowed her to “fly back home to Massachusetts and live in Massachusetts.” She went home. She made eleven appearances in court by zoom. Trial was not set for more than a year after the charges were brought.   In advance of her trial date, her court-appointed counsel (the public defender withdrew based on irreconcilable differences), filed a motion for the court to pay the expenses of returning to Hawai'i to attend her trial. The requested costs included airfare, lodging, and transportation. The court—with the Honorable Judge Kirstin M. Hamman—granted the motion and approved the order. Weeks later, it rescinded the order on the grounds that it “inad
Post a Comment
Read more

HSC doesn’t wait for Rule 40 to find defense counsel ineffective for failing to file a motion to suppress

By B. Lowenthal -
  State v. Yuen (HSC August 20, 2024) Background. Charles Tung Ming Yuen was charged with driving under the influence of an intoxicant. The charge arose from a motor vehicle collision that occurred approximately fifty feet from the O’Malley Gate just outside of the Joint Base Pearl Harbor-Hickam in Honolulu. Two vehicles were approaching the gate when one of the vehicle rear-ended the one in front of it. Military police came onto the scene and identified Yuen as the driver of the vehicle that cause the collision. They seized him and subjected him to standardized field sobriety tests. Then they held him and called the Honolulu Police Department to report a “possible DUI outside the gate.”   The collision, seizure of Yuen, and their investigation occurred outside of the base within the City and County of Honolulu. The police showed up and took over. They conducted their investigation, saw signs of intoxication, and arrested Yuen.   Yuen’s lawyer, Barry Sooalo, did not file a m
Post a Comment
Read more

ICA determines when a “modification” to probation terms is also an “enlargement” invoking the tolling statute

By B. Lowenthal -
  State v. Wilbur-Delima (ICA July 29, 2024) Background. Kamalei Wilbur-Delima was charged with multiple offenses in three different felony cases. He was sentenced to probation but it was revoked. He also picked up another felony case. He eventually pleaded guilty and was sentenced and resentenced to probation. The judgment of conviction and the resentencing orders with conditions was entered on April 26, 2017. Two months later, Wilbur-Delima entered the Hawai'i’s Opportunity Probation with Enforcement (HOPE) Probation Program, a program on Oahu designed to give “swift, predictable, and immediate sanctions” for violations.   From 2017 through 2020, the prosecution filed motions when Wilbur-Delima violated the terms of his probation. The prosecution called these motions for “Modification” of the terms and conditions. Wilbur-Delima did not contest the violations and was sanctioned with a jail ranging from 3 to 41 days jail. It later changed the title to a motion to modify “and
Post a Comment
Read more

Attempted robbery is a crime when you attempt or threaten force, just not when you actually use force

By B. Lowenthal -
  State v. Sing (HSC June 28, 2024) Background. John Sing and Abraham Sionesini were charged with robbery in the second degree. Wesley Mau was sitting on a bench in Waikiki when Sing and Sionesini came up to him. Sionesini said, “I want your watch” and grabbed the watch on Mau’s wrist. Mau pulled his arm away. Sing says “so what? You gonna call the police?” and lightly smacks Mau’s face. Then Sing and Sionesini walked away from Mau. The police arrested them later that night. Sing was charged with robbery in the second degree. HRS § 708-841(1)(a). At trial, the circuit court, at the request of the prosecution and over Sing’s objection, instructed the jury that if they found Sing not guilty of robbery or could not reach a unanimous decision, it must consider the included offense of attempted robbery in the second degree. The jury came back with the included offense. Judge James S. Kawashima was the trial judge. Sing appealed and the ICA affirmed.   The Hawai‘i Penal Code has a p
Post a Comment
Read more

HSC strikes down proof-of-compliance hearings for defendants who aren’t on probation and haven’t defaulted

By B. Lowenthal -
  State v. Fay (HSC June 17, 2024) Background. Melissa Fay crashed her car into a tree and was charged with traffic offenses in the district court. She pleaded no contest to driving under the influence of an intoxicant, driving without insurance, and the amended charge of criminal property damage in the fourth degree. She also agreed to pay restitution. Kahului Auto Sales, Inc., owned the car and made a restitution claim. The Judiciary’s Monetary Restitution Program recommended that Fay pay $6,504. The parties agreed to the amount and the district court issued an order for restitution in that amount at a rate of $50.00 per month.   The district court with the Hon. Judge Lauren Akitake presiding ordered Fay to return to court in six months if the amount was not paid off. The court told Fay that the hearings would be ongoing until it was paid off. Fay objected, but the hearing was set. Fay appealed. The ICA affirmed. Fay petitioned for further review.   The statutory procedure
Post a Comment
Read more