Posts

Anytime the State wants to use the defendant's statements against them, there has to be a pretrial voluntariness hearing.

By Benjamin Lowenthal -
  State v. Tolentino (HSC June 30, 2026). Henry Tolentino was pulled over for speeding. He was ordered out of the car. An officer drew his gun and ordered him to get on the ground. Tolentino ran away. An officer chased him, caught up to him, and there was a struggle. The officer said that Tolentino kicked and punched him. And then the officer punched Tolentino three but “no more than five” times in the face. As they were fighting a second officer ran into them and all three fell to the ground. They cuffed Tolentino and as they were raising him to his feet he said, “I’m sorry. I was just trying to get a Zip Pac .” The prosecution charged Tolentino with assault of a law enforcement officer in the first degree. Before trial, Tolentino moved as a motion in limine to exclude his statement about the Zip Pac. The defense did not move to suppress and the prosecution did not ask for a voluntariness hearing. The motion in limine was denied. The defense asked for an evidentiary hearing, whi...
Post a Comment
Read more

Another botched attempt to impose consecutive sentences.

By Benjamin Lowenthal -
  State v. Bunag (HSC April 26, 2026). Alden Bunag was a substitute teacher for thirteen months. In that time, he sexually assaulted a child, recorded it, and shared it in an online chatroom. FBI agents investigated. The victim confirmed three instances of penetration. Agents also found child pornography on his phone and evidence of distribution. Bunag was prosecuted by the United States and ultimately was sentenced to a federal prison for 210 months. The State also prosecuted Bunag. The State indicted Bunag with one count of continuous sexual assault of a minor, promoting child abuse in the first degree, promoting child abuse in the second degree, and promoting child abuse in the third degree. Prosecutors dismissed count 2 and Bunag pleaded guilty to the other three without a plea agreement.   At sentencing, the prosecution orally moved for consecutive terms of imprisonment. The motion was granted. Count one was 20 years and was consecutive with count 2, which is a ten-...
1 comment
Read more

An unrecorded police interrogation—inside and outside the station—violates Due Process in Hawaii.

By Benjamin Lowenthal -
  State v. Zuffante (HSC September 17, 2025). Charles Zuffante and his girlfriend were pulled over by the police for driving around Kona with expired registration. The car was registered to his girlfriend. The officers saw a glass pipe in the center cupholder and arrested them. The police searched Zuffante and found 3.5 grams of methamphetamine in his pocket. The event was recorded on their body worn cameras (BWC). Then they got a warrant to search the car and seized 130 grams of methamphetamine found in a handbag, a black and white polka dot coin purse, a sunglasses case, and a fanny pack.   The next day, a detective interrogated Zuffante after Zuffante waived his right to remain silent and his right to have an attorney present during the interrogation. The interrogation occurred in the Kona station interrogation room. The detective later claimed that the audio and video recording devices in the room were inoperable. Zuffante assumed it was working because “they have a ca...
Post a Comment
Read more

HSC holds a sentencing enhancement is not an element under a state statute even thought it is an element under the Sixth Amendment.

By Benjamin Lowenthal -
  State v. Smith (HSC September 12, 2025). Brian Smith was indicted for murder and attempted murder arising from a shooting in Kona. Both counts alleged that he was subject to a sentencing enhancement under HRS § 706-660.1 alleging that he possessed, used, or threatened to use a firearm while committing the offense. The prosecution did not allege a state of mind for the enhancement.   Smith went to trial. The circuit court instructed the jury that if it found him guilty of either count, it must answer a special interrogatory:   Has the prosecution proved beyond a reasonable doubt that the defendant intentionally used and/or threatened to use a firearm, whether the firearm was loaded or unloaded, operable or inoperable, while engaged in the commission of the offense of Murder in the Second Degree or Manslaughter (Extreme Mental or Emotional Disturbance)?   The jury returned a guilty verdict and answered “yes” to the interrogatory. The circuit court sentenc...
Post a Comment
Read more

Police have to let you know that you’re free to go (so long as you actually are free to go).

By Benjamin Lowenthal -
  State v. Spies (HSC September 16, 2025). Jonathan Spies was stopped by the police as he stepped out of his truck in the Foodland parking lot in Waimea on the Big Island. Sierra Valderrama was in the passenger seat. The officer had him sit in the back of his pickup while backup showed up. When they did, they told Spies they had a warrant to search his person —and nothing else. They did not have a warrant to search the vehicle.   They executed the warrant and had Valderrama get out of the truck. The police found nothing on Spies. Officer Justin Gaspar asked Spies if he could search his truck. Spies did not respond with a “yes” or “no” answer. He said something to the effect of “it’s all in there” or “everything that you guys are looking for is in there.” Officer Gaspar asked him  to clarify what he meant and Spies said that it was in his wallet. Spies did not consent to a search of the truck. The police held him for another three minutes after executing the warrant. T...
Post a Comment
Read more

HSC continues to clarify when the State has to include statutory definitions in the charging document.

By Benjamin Lowenthal -
  State v. Kaakimaka (HSC August 28, 2025). The prosecution charged Koa Kaakimaka with invasion of privacy in the first degree in violation of HRS § 711-1110.9(1)(a). A person commits that offense when:   [T]he person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place[.]   Id. A “private place” is “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or substantial group thereof has access.” HRS § 711-1100.   The indictment against Kaakimaka did not include the statutory definition so he moved to dismiss it. He argued that the term “private place” could mean many different things. He also moved to suppress evidence. The circuit court...
Post a Comment
Read more