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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
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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 He was sentenced to probation but it was revoked.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
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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
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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
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A divided jury can still be unanimous (sometimes)

By B. Lowenthal -
  State v. Tran (HSC June 4, 2024) Background. In 2006, the Hawai'i Constitution was amended to get around the ruling in State v. Arceo , 84 Hawai'i 1, 928 P.2d 843 (1996):   In continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define: 1. What behavior constitutes a continuing course of conduct; and 2. What constitutes the jury unanimity that is required for a conviction.   Haw. Const. Art. I, Sec. 25. With that the Legislature passed HRS § 707-733.6. The conduct element requires proof of “three or more acts of sexual penetration or sexual contact with a minor over a period of time, while the minor is under the age of fourteen years.” HRS § 707-733.6(1)(b). The jury need not be unanimous as to which of the three:   To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the req
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Without expert testimony, prosecutors cannot say a witness looked "traumatized"

By B. Lowenthal -
  State v. Browder (HSC June 5, 2024) Background. Zeth Browder was charged with sexual assault in the first degree, sexual assault in the third degree, burglary, kidnapping, and tampering with evidence. The prosecution presented evidence that Browder sexually assaulted an elderly woman in her tent at a county park.   During her closing argument, the prosecutor—DPA Kristen Yamamoto—told the jury that the complaining witness’s testimony was credible and akin to a traumatized person:   [U]ltimately this case comes to one question. Is [the complaining witness] believable? . . . . [H]er demeanor, her candor, her lack of motive and is what she says makes sense, then the State submits that, yes, the answer to this question is that [the complaining witness] is believable. . . . . . . . She’s 80 years old. She was nervous, shaking on the witness stand. She was emotional and crying. She was scared. She told you she was scared that morning. She was scared at the hospital. She w
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