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Disappearing elements and when you can file the motion to dismiss after trial

  State v. Van Blyenburg (HSC November 23, 2022) Background. George Van Blyenburg was indicted with one count of leaving the scene of an accident involving death or serious bodily injury (HRS § 291C-12) and negligent homicide in the second degree (HRS § 707-703(1)(b)). Here is how the prosecution alleged the first count:   On or about August 6, 2016, in the City and County of Honolulu, State of Hawai'i, GEORGE VAN BLYENBURG, as the driver of a vehicle involved in an accident resulting in serious bodily injury to or death of [decedent], with intent, knowledge, or reckless disregard of the substantial and unjustifiable risk that he was such a driver, did intentionally, knowingly or recklessly fail to immediately stop the vehicle at the scene of the accident or as close thereto as possible, and did intentionally, and did intentionally, knowingly, or recklessly fail to forthwith return to and in every event remain at the scene of the accident and fulfill the requirements of sect

When you’re ineffective in perfecting the appeal, there is still judicial review

  Suitt v. State (HSC November 22, 2022) Background. Bryan Suitt pleaded no contest to murder in the second degree and was sentenced to life in prison with the possibility of parole. The Hawai'i Paroling Authority set his minimum term at 45 years. He did not appeal the conviction. He filed a petition to set aside the conviction pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 and updated it three times for a total of 45 claims, including a claim of ineffective assistance of counsel and due process violations at the HPA minimum term hearing.   The circuit court, with the Hon. Judge Karen T. Nakasone presiding, found most of the claims patently frivolous and dismissed them without a hearing. It did set an evidentiary hearing on the claims relating to the HPA and appointed counsel.   On April 13, 2020, the circuit court amended its order to address more claims added by Suitt. It denied the new claims and in a footnote stated that if the HPA held a new minimum

Courts can hold defendants in jail and without bail after dismissing the case

  Deangelo v. Souza (HSC November 17, 2022) Background. Scott Deangelo arrested without a warrant for second-degree murder. The district court made a judicial determination of probable cause the next day. The prosecution filed a complaint alleging murder and held a preliminary hearing. At the hearing, the district court found probable cause based on the evidence presented and committed the case to the circuit court. The prosecution did not present evidence before a grand jury and no true bill of indictment issued.   Instead, the prosecution filed a complaint in the circuit court. Deangelo pleaded not guilty and filed a motion to dismiss on the grounds that because he was not indicted, the prosecution violated HRS § 801-1. While that motion was pending, the HSC issued its decision in State v. Obrero , 151 Hawai'i 472, 517 P.3d 755 (2022). The prosecution conceded the violation and requested that Deangelo remain in custody without bail so it could indict him. The circuit court

The new application of the old prosecutorial-misconduct standard (and prosecutors can’t call defendants liars anymore)

  State v. Hirata (HSC October 31, 2022) Background. Chanse Hirata was charged with continuous sexual assault of a minor under the age of 14. HRS § 707-733.6. At trial, the prosecutor, Honolulu DPA Kristen Yamamoto, told the jury in her opening statement that there was no DNA evidence, no surveillance videos, and no eyewitnesses “But you will hear from the one person that lived through all of this[,]” the complaining witness.   The complaining witness, her parents, two police officers, a doctor who examined the complaining witness, and an expert in the “dynamics of child sexual abuse” testified for the prosecution. The defense called Hirata, his parents, and his girlfriend.   The trial court, with the Hon. Judge Catherine Remigio presiding, instructed the jury on credibility with Hawai'i Standard Jury Instructions Criminal (HAWJIC) 3.09:   It is your exclusive right to determine and to what extent a witness should be believed and to give weight to his or her testimon

False accusations of sexual assault are (still) not covered by Rape Shield Law

  In re: GH (HSC October 10, 2022) Background. The prosecution filed multiple petitions in the family court against the Minor, G.H., averring sexual assault in the first and third degrees. The prosecution also moved to preclude the defense from presenting evidence about complainant’s past sexual history. The defense did not file a memorandum in opposition and did not file notice of the intention to use evidence of prior sexual conduct pursuant to HRE Rule 412. At the hearing on the motion, the Minor represented that he would not offer evidence of past sexual conduct, but would present evidence that the complainant had made accusations of sexual abuse against others in the past.   At trial, the complainant testified that she was sexually assaulted when she was 9 years old. She testified that the Minor was a friend of their neighbor who came over to the house and slept over. One night, Minor assaulted her and said if she told anyone, something would happen to her. She eventually d

The two states of mind in the 'intent to defraud"

  State v. Garcia (HSC October 7, 2022) Background. Randy Garcia was charged with four counts of forgery in the 2d degree. This is Count 4:   On or about October 9, 2019, in the City and County of Honolulu, State of Hawai'i, RANDY GARCIA did, with intent to defraud, utter a forged instrument, to wit, First Hawaiian Bank check #1877, drawn on the account of EAH Inc., made payable to Randy Garcia in an amount of Two Thousand Two Hundred Fifty Dollars ($2,250.00), which is or purports to be, or which is calculated to become or to represented if completed, a deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, obligation, or status, thereby committing the offense of Forgery in the Second Degree, in violation of Section 708-852 of the Hawai'i Revised Statutes.   The language in the charges tracked HRS § 708-852:   A person commits the offense of forgery in the second degree if, with the int