Showing posts from November, 2007

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