Showing posts from January, 2008

Hi-Tech Hearsay and Prosecutorial Misconduct that's NOT Harmless

State v. Espiritu (HSC January 28, 2008) Background. Espiritu and the Complaintant dated for a while, broke up, and still kept in touch. The Complaintant received four alarming text messages from Espiritu’s cel phone. At some point, the Complaintant met a guy at the Fish and Game Bar. Shortly after going back to her place and having $ex, Espiritu showed up at the house. A struggle ensued, Espiritu reached for a gun and shot the Complaintant. She lived. After the incident, investigating police officers copied the text messages to notes which appeared in their reports. Espiritu was charged with attempted murder in the 2d; carrying or using a firearm; and place to keep a firearm. The jury found him guilty as charged. Espiritu was sentenced to life imprisonment. OMG! Txt mssges r so hrsy! At trial, the State asked the Complaintant if she could recall the content of the text messages. She had a vague recollection of some, but not all, and examined the police reports in order to refresh

HSC rules that its Rule is Plain and Unambiguous.

Kamaka v. Goodsill, Anderson, Quinn & Stifel (HSC Jan. 24, 2008) Background. Kamaka was an attorney at Goodsill, a law firm in HNL, focusing on employment law. The firm suspected Kamaka's honesty when it discovered that she had not completed the work she claimed to have finished. Soon afterwards, another attorney at the firm believed that she had regularly made entries on billing time sheets for incomplete work, and recommended termination. Kamaka's annual report was not favorable so the firm put her on probation pending further investigation. The firm also informed Kamaka that if investigation showed that "continued deficiencies" between the billing and actual work done, she would be fired. Kamaka was eventually terminated, and the firm referred her to the Office of Disciplinary Counsel. The ODC dismissed the claim based on insufficient evidence. Kamaka sued Goodsill alleging several counts. Kamaka lost every claim one except for a jury awarding her f

Contesting Contested Case on grounds that it's not a Contested Case.

E & J Lounge Operating Co. v. City and County of HNL (ICA December 24, 2007) Overruled by HSC. Background. E & J Lounge applied for a liquor license w/ the HNL Liquor Commission. After holding a public hearing where neighbors of the lounge opposed the granting of a license, the LC denied the application. E & J Lounge appealed to the circuit ct. on the grounds that the public hearing was a “contested case” and that the other requirements of the Hawaii Administrative Procedures Act (HRS Ch. 91). The circuit court agreed and reversed the denial based on violations in HRS Ch. 91. Specific Agency Statutes v. the HAPA. HRS Ch. 281 regulates the proceedings of the liquor commission and requires the commission to hold a public hearing to determine the merits of the application for a license. The public hearing comes with procedural requirements like notice to neighbors w/in a proscribed time. The more rigorous procedural requirements under HRS Ch. 91, on the other hand, apply

No Jury Instructions are Perfect, Even Less are Reversible.

Whitaker v. State (ICA December 31, 2007) Background. Whitaker was indicted for Insurance Fraud (HRS § 431:10C-307.7(a)(1) and (b)(2)) and Attempted Theft in the 2d (HRS § 708-831(1)(b) and HRS § 705-500). According to Whitaker, he called AIG, his insurance carrier, to report that vandals and damaged his car and make a claim. AIG instructed him to call the police first for a report. Whitaker drove the car to the station in Wahiawa, where an officer inspected the damages and reported scratches on the sides, hood, and trunk. He then drove to HNL to AIG for an inspection. Whitaker claimed extensive damage. AIG found it suspicious that there were fragile paint markings on the car after it had been driven from Wahiawa to HNL. AIG suspected that Whitaker was claiming that pre-existing damage was part of the vandalism. Whitaker testified at trial that he had told AIG about the pre-existing damages. Whitaker was found guilty as charged. No Error for Denying Unanimity Instruction. W

ICA: Sunshinier Days Ahead for City Council.

Right to Know Committee v. City and County of HNL (ICA December 28, 2007) Background. Members of the HNL City Council introduced a resolution seeking to reorganize the Council’s standing committees. The resolution was adopted at a special meeting. Journalists reported that the council members had already discussed the resolution before the meeting was held. The Office of Information Practices (OIP) later questioned the validity of the resolution based on the Hawai’i Sunshine Law (HRS Ch. 92) because Council members had one-on-one chats about the resolution beforehand. Council members countered the OIP with memoranda of their own. Months later the Council changed the Council Rules to allow the Chair to appoint all committees w/o having to hold a special meeting. Pursuant to these new powers, Donovan Dela Cruz, the Chair at the time, appointed the same members from the older resolution. Various non-profit organizations filed a complaint alleging that the Council violated the Sunshine