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Testifying at the Suppression Hearing does not Constitute a Waiver of the Right to Remain Silent at Trial—Even in District Court

State v. Chang (HSC June 28, 2019) Background. David Yen Hoy Chang was charged with driving while under the influence of an intoxicant. He pleaded not guilty and appeared in the district court. There, the district court was informed that the hearing on the motion to suppress would be consolidated with a bench trial.
The district court began with the motion to suppress. Honolulu Police Department Officer Jared Spiker testified that he pulled Chang over for driving at little after one in the morning without his headlights on and make an unlawful left turn. When he talked to Chang he noticed the odor of alcohol on his breath and saw that his eyes were red, watery, and glassy. His face was flushed; speech slurred. Officer Spiker asked for Chang’s driver’s license, registration, and insurance, which were produced without difficulty or delay. Officer Spiker informed Chang he was pulled over for driving infractions and invited him to participate in standardized field sobriety tests. Chang got …

Unwanted Lecherous Comments Unprotected by the First Amendment

State v. Calaycay (HSC August 26, 2019) Background. Burt Calaycay was charged with the offense of harassment in violation of HRS § 711-1106(1)(f). At trial the complainant testified as the sole witness for the prosecution. She testified that in 2013 she was a 17-year-old cadet at Youth Challenge, an organization supervised by the National Guard to assist at-risk youth in obtaining a GED. She testified that Calaycay, an employee at Youth Challenge, approached her during her free time and he propositioned her for sex. She testified that he “wanted to get me wet and hit me from the back and have him ride him and that . . . his team had his back and that I wouldn’t get in trouble.” She testified that seven days later, Calaycay called her in the middle of the night to tell her how beautiful she was and that “he wanted to hook up with me and . . . wanted to see me naked.” This made the complainant feel uncomfortable and unsafe.
Calaycay testified. After serving two tours in Iraq, Calaycay wor…

HSC Abandons Rigid Factors for a Totality of the Circumstances Approach in Evaluating Eyewitness Testimony

State v. Kaneaikala (HSC October 1, 2019) Background. Bronson Kaneaiakala was charged with one count of burglary in the first degree. The key to the prosecution’s case was the testimony of Mari Laraway. Laraway was walking with her son on Date street from their apartment to her car when she saw a man crouching under a window of a ground-floor apartment. When she got to her car she saw the men entering the apartment through a window. It was in the middle of the day in January. Laraway called 911. Police officers found Kaneaiakala naked in the laundry room of the apartment building with items missing from an apartment. He was arrested. Two-and-a-half hours later Laraway met the officers on the street outside the building. He was shirtless, h andcuffed, and standing next to a police car surrounded by police officers. Laraway looked at Kaneaiakala and told the officers she was “almost positive” that that was the man she saw.
Kaneaiakala filed a motion to suppress the identification on the …

The Defendant Always Gets the Last Word Before Sentence is Imposed

State v. Carlton (HSC November 25, 2019) Background. Brok Carlton was charged with kidnapping, robbery in the first degree, assault in the second degree, and unauthorized control of a propelled vehicle. He went to trial and lost. The Honorable Judge Rhonda Loo of the circuit court sentenced him to 50 years imprisonment. Carlton appealed to the ICA. The ICA vacated the judgment on the grounds that the jury was not properly instructed on the law of merger for the kidnapping, robbery, and assault charges. The ICA affirmed the UCPV count, but remanded the case back to the circuit court and ordered the prosecution to either retry Carlton on the other three counts or dismiss two of the three and have the circuit court reinstate the conviction and resentence of Carlton. The judgment on appeal was entered on June 27, 2016.
The prosecution took no action until a hearing was held on January 11, 2017. At that hearing the prosecutor informed the court for the first time that it was going to dismiss…

HSC Clarifies when Counsel Opens the Door and Re-emphasizes the Need for Merger Instructions

State v. Lavoie (HSC November 22, 2019) Background. Marlin Lavoie was charged with murder in the second degree, carrying or using a firearm in the commission of a separate felony, being a felon in possession of a firearm or ammunition, and place to keep loaded firearms. The charges stem from the killing of Lavoie’s girlfriend and the mother of his four children, Malia Kahalewai on Molokai. Lavoie moved prior to trial to preclude prior bad acts in which Lavoie injured or threatened to hurt Kahalewai. Judge Joseph E. Cardoza of the circuit court granted the motion; the prosecutor noted that “should the door be opened” it would ask to revisit the pretrial ruling.
The Trial. Nicole Aea, a friend of Kahalewai testified that Kahalewai was living with Lavoie and their children in the remote Honouliwai Valley. She had been staying with her and her other friends for a few days. On the night of the shooting, Aea was with Kahelwai and her friends when Lavoie came over to the apartment. Lavoie repe…

Counsel can Urge Jury to Walk in Defendant’s Shoes (for Purposes of Choice-of-Evils Defense)

State v. Kauhane (HSC November 12, 2019) Background. Fifteen to twenty protestors objected to the construction of a large telescope at the summit of Haleakala on Maui by standing shoulder to shoulder on the roadway in 2015. The protestors were blocking the roadway to prevent a convoy of construction vehicles and equipment heading to the summit. When the initial group of protestors were cleared, seven sat in the middle of the roadway chanting and praying. Keith Kauhane was among the Haleakala seven arrested.
Kauhane was served a criminal complaint alleging the offense of Obstructing in violation of HRS § 711-1105(1)(a). Here’s the language of the charge:
That on or about the 20th day of August, 2015, in the County of Maui, State of Hawaii, KEITH KAUHANE, whether alone or with others and having no legal privilege to do so, did knowingly or recklessly persist to obstruct any highway or public passage, after a warning by a law enforcement officer to move to prevent or to cease such obstructi…

When are the Police Allowed to Lie to a Suspect to Induce a Confession?

State v. Matsumoto (HSC October 29, 2019) Background. Keith Matsumoto, a wrestling coach, was arrested under suspicion of sexual assault that allegedly occurred at a wrestling tournament. He was indicted with sexual assault in the third degree. Matsumoto moved to suppress evidence statements obtained during the police investigation.
At the hearing, Matsumoto testified he was arrested and taken to the main station in Honolulu and remained in custody. Eight hours later he was taken to an interview room. He made a statement to the police and then was told that he would take a polygraph examination the next day.
The next morning Matsumoto was taken to the polygraph room at the police station. Another detective, Det. Allan Kuaana gave Matsumoto a polygraph form, strapped him up to the machine with electrodes, and asked him a series of questions to calibrate the polygraph. For example, Det. Kuaana told Matsumoto to say that $20 bill in his hand was $5. He interviewed Matsumoto about what happe…