If the Court has discretion to impose the fee, it must first determine the defendant's ability to pay

  Warner v. State (HSC September 20, 2022).  Background. Luke Warner was indicted with four counts of attempted theft in the 2d degree, three counts of meth trafficking, and seven other offenses for a total of fourteen counts. He pleaded guilty to meth trafficking in the second degree and the other counts. During the colloquy between Warner and the circuit court (the Hon. Judge Karen Ahn presided), the circuit court went over the possibility of “authorized fines” but did not specify or inform Warner about court fees and other monetary assessments. The guilty plea was accepted and he was sentenced to a total of 10 years imprisonment. The circuit court did not impose a fine, but levied fees: a $1,420 crime victim compensation fee, $1,420 drug demand reduction assessment, $7,500 methamphetamine trafficking restitution and reimbursement, and a fee of up to $500 for a DNA analysis. The sentencing court made no finding that Warner could afford to pay any of these fees at the time of sentenc

A preliminary hearing is no substitute for an indictment

  State v. Obrero (HSC September 8, 2022) Background. The prosecution filed six complaints against Richard Obrero including murder in the second degree. Two days later, the prosecution presented evidence before the Grand Jury and a no bill was returned. In other words, there was no probable cause to bring the indictment. Hours later, the prosecution went ahead with the preliminary hearing on the same case with the same facts and this time a judge found probable cause in the district court. Obrero pleaded not guilty at the arraignment and years later moved to dismiss the case on the grounds that no indictment was found in violation of HRS § 801-1. The motion was denied. Obrero appealed and then moved to transfer the case to the HSC.   The statutory right to be indicted. Obrero argues that without an indictment, the prosecution violated HRS § 801-1:   No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictmen

Court plainly erred in not giving Sheffield instruction—before Sheffield was published

  State v. Ishimine (HSC August 4, 2022) Background. Lorrin Ishimine was charged with kidnapping in violation of HRS § 707-720(d)(1), two counts of felony abuse, and one count of misdemeanor abuse. The prosecution dropped all abuse counts before trial. He was tried with a single count of kidnapping.   At trial, Officer Victor Santana testified he was off duty taking a nap at his house when he heard a vehicle speeding down the street. He looked out the window and saw the vehicle pull into a two-story house across the street. He saw a man get out of the vehicle yelling and trying to get someone out of the vehicle. Officer Santana got dressed and went back to the window. This time he saw the man grabbing a woman from behind and dragging her up the stairs into the house. The woman was screaming, kicking her feet, and trying to get away. It lasted about a minute. Officer Santana called the police.   Officer Keola Wilhelm testified that he responded to the call and went to the hou

If You Can’t Pay the CVC Fee at Sentencing, the Court Can’t Impose it

  State v. Yamashita (HSC August 5, 2022) Background. Joshua Yamashita was on probation when he was prosecuted in seven separate offenses. He pleaded no contest and was sentenced to a total of twenty-six counts including unauthorized control of a propelled vehicle to theft, criminal property damage, and drug offenses. The circuit court—the Hon. Judge Rhonda Loo presiding—sentenced Yamashita to five years imprisonment and ordered $1,810 in fines, $8,767.20 in restitution, the Crime Victim Compensation fee totaling $2,075, the Internet Crimes Against Children fee totaling $2,500, and the $100 Drug Demand Reduction assessment.   Yamashita challenged the last three court fees and filed a motion to reconsider the sentence. The circuit court held an evidentiary hearing. At the hearing Yamashita testified that he was 29 years old and had a GED. He lived at the Halawa Correctional Facility and made $0.25 an hour as a plumber working 35 hours a week thereby averaging $15-$20 a month. He

By the Way, Medical Rule-Out Questions Constitute "Interrogation"

  State v. Skapinok (HSC June 3, 2022) Background. Leah Skapinok was charged with driving under the influence. One summer’s night, Officer William Meredith saw a white Toyota Tacoma speeding down King Street. He followed it onto Ward Avenue and saw it weaving before getting onto the H-1. Once on the freeway, he saw it cross the solid white line and move across three lanes without signaling. Officer Meredith pulled the truck over. Skapinok was the driver. Officer Meredith smelled booze on her and saw she had red, watery, bloodshot eyes.   Officer Meredith believed he had enough to arrest her for reckless driving, but he didn’t. He instead asked if she was willing to participate in the field sobriety tests. She was argumentative at first but gave in when Officer Meredith told her that if she did not, she would be arrested. Corporal Ernest Chang showed up and talked to Officer Meredith. Corp. Chang agreed that there was probable cause to arrest for reckless driving.   Skapinok

Even When Medical Rule-Out Questions Suppressed, the Fields Aren't Fruits

  State v. Manion (HSC June 3, 2022) Background. Daniel Manion was charged with driving under the influence of an intoxicant. He moved to suppress evidence of the field sobriety tests performed outside his vehicle in the middle of the night. A resident in Hawai'i Kai called the police after hearing a car crash. Police arrived and found Manion sitting in a crashed car. Officer Corey Morgan asked Manion if he was injured. Manion said he was not. He was just having a rough day. He also said he drank a “40” at Sandy’s and was on his way home. He said he crashed his car because he was texting. Officer Morgan smelled booze and saw that Manion had red, watery eyes. Officer Morgan believed he had probable cause at this point to arrest Manion for drunk driving.   Officer Morgan asked Manion to get out of the car. Manion complied. He asked if he was willing to submit to standard field sobriety tests. He said he would. Then Officer Morgan asked him the medical rule-out questions—questi

HSC Restates the “Custody” in Custodial Interrogation; Probable Cause to Arrest Doesn't Always Mean You’re in Custody.

  State v. Sagapolutele-Silva (HSC June 3, 2022) Background. Tiana Sagapolutele-Silva was driving on the H-1 one night with four other passengers. Officer Franchot Termeteet clocked her going 77 mph in a 45-mph zone and saw her drifting between lanes without signaling. Officer Termeteet testified at a suppression hearing that he knew he had probable cause to stop and arrest the driver for excessive speeding and that she was not free to leave. Officer Termeteet pulled her over.   He smelled booze coming from the vehicle but was uncertain if it was emanating from Sagapolutele-Silva or the passengers. He saw that Sagapolutele-Silva had red, watery, and glassy eyes and when asked to produce a license, she could not. He asked her to step out of the car. She complied. Then he asked if she would participate in the standard field sobriety tests. She would.   Officer Termeteet also testified that before taking the field sobriety tests, officers must ask eight questions to rule out th