Showing posts from 2007

For Plain/Unambig. Laws, Leave the Legislative History for Historians.

State v. Klie (HSC December 27, 2007) Background. Klie was charged with soliciting $ex in the Waikiki area in violation of HRS § 712-1207(1) in the district court. Klie pleaded no contest. The district court accepted his plea. Klie then moved for a deferred acceptance of a no-contest plea (DANC) purs. to HRS § 853-1. The court agreed with the State that the statute did not afford the court any discretion in giving a DANC and denied Klie’s motion. DAG-nabbit!! Generally, courts can grant a DANC or DAG when (1) the defendant pleads no contest or guilty and (2) when the ct. concludes either that the defendant isn’t likely to engage in further criminal conduct and the “ends of justice and welfare of society do not require that the defendant presently suffer the penalty[.]” State v. Sakamoto , 101 Hawai’i 409, 412, 70 P.3d 635, 638 (2003). HRS § 853-4 provides that offenses that are not subject to probation are an exception to the general rule. HRS § 712-1207 provides specifi

HSC not suspicious on reasonable suspicion.

State v. Spillner (HSC December 24, 2007) Background. After Spillner was pulled over for having illegally tinted windows, a police officer learned that he had no license or insurance. A week later the same police officer saw that Spillner didn’t fix the tinted windows and stopped him again. This time his girlfriend was driving. The car was still uninsured. About a week later, the same officer saw Spillner driving and stopped him a 3d time. Spillner was cited for driving w/o a license (HRS § 286-102) and being uninsured (HRS § 431:10C-104). Spillner filed a motion to suppress arguing the 3d stop was based on prior contact and that on the 3d stop there were no reasonable grounds for the stop thus it was an illegal seizure; he lost and was found guilty as charged. Booking Ongoing Criminal Activity w/in “Bookends”. A traffic stop is a seizure for constitutional purposes, and fruits of an illegal stop must be suppressed unless the State shows that the officer had a reasonable

Agency's Determination of an Agency Reviewed w/o Deference.

Olelo v. Office of Information Practices (HSC December 21, 2007) Background. Three people requested from Olelo, a community television programmer on Oahu, a list of the names and contact information of everyone eligible to vote in Olelo’s election to its Board members. This request came after the Office of Info. Practices issued an opinion letter that concluded Olelo was an “agency” as defined by the Uniform Information Practices Act (HRS Ch. 92F) and was thus subject to its disclosure requirements. Olelo refused to divulge, and the OIP demanded disclosure. Olelo filed a complaint for declaratory relief requesting that the circuit court conclude it was not an “agency.” The circuit court reviewed the request de novo and granted Olelo’s summary judgment. OIP appealed. An Agency is NOT an Appellate Court. If the legislature granted the agency the discretion to make the decision being appealed, then courts review for an abuse of that discretion. However, if no discretion is gr

HSC finds many exceptions to mootness, declines legislating from the bench.

Doe v. Doe (HSC December 13, 2007) Background. A six-year-old child’s parents divorced. Sole custody went to the mother, who lived on the Big Island. Dad lived in California. The grandparents petitioned for visitation rights of the child on the grounds that it would be in the best interests of the child if they had reasonable visitation rights. Mom challenged the petition arguing that the statute allowing grandparental visitation rights, HRS § 571-46.3 was unconstitutional on its face in light of Troxell v. Granville , 530 U.S. 57 (2000). The family court agreed with Mom and dismissed the grandparents’ petition. About five months after the grandparents appealed, Dad took custody and the child moved to California. The State filed a “Notice As To Possible Mootness” arguing that the issue might be, well, moot. The HSC ordered a show cause as to why it should not be moot. Mother did so. Mootness Was the Case. A case is moot when “events have so affected the relations betwee

ICA gets serious on serious bodily injury

State v. Maddox (ICA December 11, 2007) Background. Mickey Maddox went over to his ex-girlfriend's house and got into a fight with Dale Mota, his ex's new squeeze. Maddox stabbed Mota in the chest with a utility tool. The blade missed his heart and all vital organs. Mota was taken to the hospital where he was treated by Dr. Nelson. The wound was two-inches long and went between Mota's ribs right next to his heart. There was no need for a surgery or any indication of a severe injury such as a heart laceration, vessel cut, or collapsed lung. Mota's wound was cleaned and bandaged w/o stitches. He was released w/in 24 hours. Maddox was charged with first-degree assault (HRS § 707-710(1)). At trial, Dr. Nelson testified that Mota's wound created a substantial risk of death because it was a stab wound directly towards his heart. Dr. Nelson also testified that it was a miracle how the blade did not injure any important organs. Maddox testified at trial. He testified t

Photo Lineups and Pearl-Handled Baseball Bats

State v. Yamada (ICA December 6, 2007) Background. On Valentine’s Day two men were robbed at the Diamond Head lookout. One of the robbers clubbed a guy with a baseball bat. Five weeks later, two Japanese tourists were robbed by two men with a baseball bat at the HNL Zoo. Later that day, police arrested Yamada when he and another guy were found rifling through a parked car at UH. Yamada had a baseball bat. Yamada’s mug shot was used in a photo lineup for one of the witnesses from Valentine’s Day; the witness identified Yamada as the man who used the bat. Yamada was charged with two counts of Robbery in the First Degree (HRS § 708-840(1)(b)(i)) and one count of Assault (HRS § 707-710). Yamada later pleaded guilty robberies at the zoo and went to trial for the Valentine’s Day incident. At trial, Yamada raised an alibi. The State sought, over Yamada’s objection, the admission of his mug shot and the fact that Yamada pleaded guilty to the zoo robberies. The circuit court allowed the mug

Impeaching with what was NOT said.

State v. Plichta (HSC Nov. 30, 2007) Background. Plichta stripped down a car in a parking lot with a hatchet one morning near Sand Island. After being confronted by the owner of the car, dousing him with pepper spray, trying to flee, and spray the police, he was apprehended. He told the police that they were in big trouble because he was the President of the United States, the chief of police, and part of an international agency. Plichta’s defense counsel was preparing to go with the insanity defense and filed a motion for a three-doctor panel pursuant to HRS § 704-404. The circuit court granted the motion and three doctors examined Plichta to determine whether he was competent for trial and whether he was legally insane. Three doctors interviewed him and their reports were given to the parties and the court. At no time during the interview did Plichta talk about his belief that he was being chased by extra-terrestrial life. At trial Plichta’s lawyer argued that at the time o

HPA Likes The Cure, HSC Prefers New Order.

Coulter v. State (HSC November 30, 3007) Background. Coulter was sentenced to 10 years for two counts of a criminal offense running concurrently. The Hawaii Paroling Authority (HPA) sent Coulter proper notice of a hearing to determine the minimum term of imprisonment and Coulter submitted materials showing mitigating circumstances such as letters of support and a biography. A hearing was held in March 2003 and the HPA issued its decision soon afterwards. The HPA imposed a min. term of seven years for each count, but never specified the level of punishment and the specific criteria upon which the decision was rendered, as required by Section III of the HPA 1989 Guidelines. Coulter filed a petition under HRPP Rule 40 arguing, inter alia, that the HPA failed to follow its own guidelines. On December 31, 2003, the HPA issued a Notice and Order of Fixing Minimum Term(s). This order set the same min. term of seven years, but included the level of punishment and the criteria. None of the p

Stopping SOTP

State v. Holt (ICA November 21, 2007) Background. Duke Holt was charged with Harassment by Stalking in violation of HRS § 711-1106.5(1). The complaining witness, a 12-yr-old girl, testified at trial. She testified that one morning she was walking to school when she saw that a man, later identified as Holt, was talking to her from his car. He flirted with her. He asked if she had a boyfriend, said that he was a nice guy, and that he wanted to get to know her better. At one point, according to the CW, Holt reached out of the car and grabbed her. They arranged a meeting the next day. The CW went to her school and the police were contacted. The police went to the arranged meeting place nd saw Holt in his car. He was arrested. At trial, Holt's counsel attempted to cross-examine the CW with a written statement she gave to the police in order to show inconsistencies with her testimony on direct. The circuit court did not allow it into evidence. Holt testified in his defense and said th

HSC Gives No Gratuity for Bad Service (of Bench Warrant)

State v. Owens (HSC November 19, 2007) Background. On Feb. 20, 2001, Owens was charged with one count of Abuse of a Household/Family Member in violation of HRS § 709-906 on Oahu. He pleaded guilty and was sentenced to one year of probation. He was ordered to go to Adult Service Branch for an interview with intake services. Owens never showed up. The ASB mailed him a letter seeking his presence. The letter was returned to the sender with the words "no longer at this address" stamped on the envelope. The State filed a motion for revocation of probation and resentencing on March 27, 2001. The court issued a bench warrant on the same day. No attempts were made to serve the bench warrant until November 28, 2005, four years and eight months later, on Maui. Owens filed a motion to dismiss for the State's violation of HRPP Rule 9. The motion was denied and the ICA affirmed. HRPP Rule 9 Applies to Post-Conviction Proceedings, Including Probation Revocation. The HSC rejected

County Ordinance Among the Facially-Challenged.

State v. Beltran (HSC November 16, 2007) Background. Beltran and her friends, Keawemauhili and Lucas, were cited for Camping w/o a permit in violation of Revised Ordinances of HNL, Ord. 10-1-3(a)(2). They appeared in district court and moved to dismiss on the grounds that the ord. was unconstitutionally overbroad and vague. The motions were denied and the parties pleaded no contest w/ the right to appeal the denial of their motions. The ICA vacated on the grounds that it was unclear whether the ord. was prosecuted as a strict liability offense and remanded. The HSC then took it up. Standing Schmanding. Beltran first argued that the overbroad definition of “camping” infringed on her DP right to privacy and freedom of movement. When alleging that a statute is overbroad, the challenger must be “directly affected by the claimed overbroad aspects” unless the statute affects the freedom of expression. As her expressive conduct is not at issue, she would have no standing to challenge the

Funny Things Happening at the Nonpublic Forum

In re: Casupang (HSC November 13, 2007) Background. The HGEA, the exclusive union for government workers in Hawai'i, posted on a bulletin board in the fourth-floor office of the Department of Transportation an announcement that was anti-Lingle and urging its members to vote Democrat, esp. for Mayor Mufi Hannemann. A worker saw the announcement and was concerned. The DOT told HGEA to take down the announcement on the grounds that it was prohibited by the State Ethics Commission's "campaign restriction flier." The HGEA brought a prohibited labor practice complaint before the Hawai'i Labor Relations Board and lost. It appealed. The HGEA argued that, among other things, the gov't violated the First Amendment rights of the workers it represents when the State ordered it to take down its political materials. Undeniable State Action. The HGEA must first show that the act at issue was state action. The ban was imposed by Gov. Lingle as an employer and executed b

No Foresseability Invites an Error that's Not Plain.

VACATED AND REMANDED BY HSC! Moyle vs. Do Re Mi Karaoke (ICA Nov. 8, 2007) Background. After a long night of drinking, Moyle went to the Do Re Mi Karaoke Bar in the wee hours to drink some more. As he was leaving the back door, Moyle was beat up and robbed by some other guy. Tupuola was found criminally liable. Moyle sued Do Re Mi claiming negligent failure to provide adequate security and negligently failing to protect its patrons. At trial, Moyle tried to get police reports about the incident into evidence, but the circuit court precluded them. Moyle also challenged the jury instructions. A jury trial entered a verdict in Do Re Mi's favor. Moyle appealed. Failure to Define Foreseeability Errors Precluded by Invited-Error Doctrine. Moyle challenged two instructions that related to the foreseeability of criminal acts by a 3d party. The ICA held that this was invited-error. The invited-error doctrine prohibits a party who brings about the error at the trial level from raising

For Mandatory Min., Priors Presumed Valid Unless Challenged.

State v. Heggland (ICA Nov. 8, 2007) Discussed and Partly Overruled. Background. Heggland pleaded guilty to Promoting a Dangerous Drug in the 3d Degree, HRS § 712-1243(1), and committing Prohibited Acts relating to Drug Paraphernalia, HRS § 329-43.5. The State sought a mandatory minimum term under HRS § 706-606.5 on the grounds that Heggland committed his promoting offense while on parole from a Colorado felony conviction. Thus, he was a "repeat offender" who committed the drug offense within the "max. term of imprisonment possible after a prior felony conviction." The State offered documents showing Heggland's prior conviction. Heggland even stipulated to having committed the drug offense in Hawai'i while he was on parole for the Colorado conviction. The circuit court denied the motion, however, because the State failed to show that Heggland had been represented by counsel or waived his right to counsel at the time of his Colorado conviction. The Stat

The Triumphant Return of Extended Sentencing

2007 Haw. Session Laws (Special Session) HB No. 2 (October 31, 2007) The Legislature Strikes Back. Earlier this month, by order of the US Sup. Ct., the HSC, in State v. Maugaotega , held that the extended sentencing statutes violated the Sixth Amendment. The court found the law unconstitutional and refused to order the empanelling of a jury to sentence Miti Maugaotega on the grounds that the legislature intended to keep sentencing matters w/in the discretion of the court. Hmm. Following the heels of the Superferry-Bail-Out bill, the Legislature amended HRS §§ 706-661, -662, and -664 because the HSC "declined to exercise its inherent judicial power to order on remand that a jury be empanelled." Upping the Ante. Extended sentencing is available only when the defendant has been convicted of a felony. For murder in the 2d, the sentence is upped to life w/o parole; class A felonies are upped to life; class Bs upped to 20 years; and class Cs for 10 years. The sentencing court o

District Ct. May Compel Discovery of Laser Gun Specs

State v. Lo (HSC Oct. 30, 2007) Background. The defendant, Jack Miller, was cited for excessive speeding in violation of HRS § 291C-105(a)(1) for allegedly driving 76 mph in a 35-mph zone. The police measured the speed of Miller's car with a laser gun. Pursuant to HRPP Rule 16, Miller sought particular items relating to the laser gun: the manufacturer's operation and maintenance manuals; certification documents; police maintenance records; manufacture and acquisition dates; warranty documents; laser readings; firearm qualification test results for the officer who cited Miller; fixed distance used to calibrate the laser gun and the location where the calibration took place; and “delta distance” used to calibrate the laser gun and location. The State refused to disclose, and Miller filed a motion to compel their discovery on the grounds that these items were discoverable when the conviction is based solely on the laser gun reading. The district court ordered the disclosure of

When Priors An Element, Don't Stip w/o Colloquy

State v. Murray (HSC Oct. 29, 2007) Background. The State charged Murray with Abuse of a Household or Family Member in violation of HRS § 709-906, which requires the defendant to be charged as a class C felony when the charged offense occurs within two years of the 2d or subsequent conviction. At trial, the defense counsel stipulated to Murray's prior abuse convictions. The stipulation was read into evidence to the jury w/o a limiting instruction. The jury found Murray guilty as charged. The ICA affirmed. Prior Convictions are “Elements” to the Offense as a Felony. Because HRS § 709-906(7) mandates the State to charge as class C felony based on prior convictions of the same statute made w/in two years, (first-time convictions under this statute are misdemeanors), the HSC held that the prior convictions were essential elements that must be proven by the State beyond a reasonable doubt. See HRS § 702-205; State v. Aiwohi , 109 Hawai'i 115, 123 P.3d 1210 (2005) (essential el

Confronting the Confrontation Clause

State v. Fields (HSC Oct. 11, 2007) Background. Reginald Fields lived with his girlfriend, Staggs, on Kauai. One night their neighbor and landlord heard an argument between Fields, his friend, Richards, and Staggs. The landlord also heard slapping sounds and a hard thud. The landlord testified, without objection, that she heard someone yell, "Reggie, get off her." The landlord called the police. Two officers went to the house and found Staggs all alone. She had scratches on her face and shoulder and her clothes were torn. Staggs told the police that the other night, her mother came with a truck full of men and beat up Fields. This upset Fields and he took it out her by punching her in the face. Fields was charged with abuse of a family or household member in violation of HRS § 709-906(1). At a bench trial Staggs testified. She did not recall the statements she gave to the police. On cross-examination, Staggs admitted that she had been d