Showing posts from September, 2008

Notice Requisites not an Unconstitutional Impediment

State v. Pond (HSC September 29, 2008) Background. Pond was charged with abuse of family or household member (HRS § 709-906) and interference with reporting an emergency or crime (HRS § 710-1010.5). Just before trial, Pond asked for a continuance so that he could give reasonable notice to the State pursuant to HRE Rule 404(b). Pond wanted to present evidence that Russell "smacked" Pond about two weeks before the alleged abuse. Pond did not provide notice earlier because he did not have the actual time of the "smack" until the morning of trial. The circuit court denied the continuance and denied the admission of the evidence because the notice was not "reasonable." At trial, Miae Russell testified that Pond, her boyfriend, came home drunk one night and attacked her. Russell testified that she tried to call the police for help, but Pond grabbed the phone and threw it against the wall. She admitted that she hit him back, but explained that it was in self

ICA Demands Post-Trial (and Perhaps Post-Conviction) Examination of DNA in "Unusual Circumstances"

State v. Pavich (ICA September 16, 2008) Background. Dr. Bird was found dead in his Kihei, Maui apartment. Blood was smeared on the walls, soaked on a pillow near his head, and on a bunch of napkins. The cause of death was "manual strangulation." Pavich was Avilla in her Kihei apartment along with Estencion, Granados, and Abraham. Pavich was charged with burglary in the first degree, kidnapping, robbery in the first degree, murder in the second degree, and was separately charged with possession of methamphetamine and possession with the intent to use drug paraphernalia. All seven counts were tried together. The State sent to a private laboratory, Genetic Technologies, the bloody napkins for a DNA analysis. Pavich's hired another laboratory for an independent DNA analysis with Forensic Science. Genetic Technologies reported that the blood on the napkins could belong to Bird, Pavich, or Avilla. During jury selection, the State sent Pavich a supplemental report

Parental Discipline not an Affirmative Defense and Measured by "Reasonableness"

State v. Roman (HSC September 11, 2008) Background. Roman lived with his girlfriend and her 17-year-old son. On Mother's Day Roman was making tacos for dinner and asked the boy to get up off the futon and grate some cheese. Roman told him that he was not doing it right and told him to back off. Roman left the house and when he came back he saw that the boy hadn't moved from his spot on the floor. Roman testified that he "kicked him in his okole." At that point, the boy stood up and stared at him with clenched fists. Roman asked him some questions, but the boy was nonresponsive. Roman slapped him a few times. The mother tried to intervene, but she was hit by Roman. She called the police. After a bench trial, the family court concluded that the parental-discipline defense did not apply. The ICA disagreed and found the family court in error, but that the error was harmless beyond a reasonable doubt. Judge Nakamura dissented. Once Raised, the Burden to Disprove the Pa

Unnecessary, but not Necessarily Erroneous Instructions

Moyle v. Do Re Mi Karaoke (HSC September 4, 2008) Background. After a long night of drinking, Moyle went to Do Re Mi Karaoke and drank some more. At Do Re Mi, Moyle ran into Simi Tupuola, who beat him up outside after Do Re Mi closed. Moyle sued Do Re Mi for negligence. Two years into the litigation, Do Re Mi attempted to bring Tupuola into the lawsuit, but the circuit court denied its motion. A jury concluded that Moyle was 5 % liable, Tupuola 95%, and Do Re Mi and the various owners were not liable. The ICA affirmed . Moyle appealed. The Foreseeability Instructions were Prejudicially Misleading. The HSC first held that the jury instructions on foreseeability so prejudicially misleading that it arose to reversible error. A landowner generally does not have a duty to protect others from the criminal acts of a third party. Doe v. Grosvenor Properties (Hawaii) Ltd. , 73 Haw. 158, 162, 829 P.2d 512, 515 (1992). However, when the landowner and the injured party have a "

When it Comes to Damages, Jurors rule.

Kato v. Funari (HSC August 25, 2008) Background. Kato was in a car accident with Funari. Kato sued Funari claiming negligence. After a jury trial, the circuit court granted Kato's motion for directed verdict on the issue of fault. Without objection, the circuit court instructed the jury that any damages awarded were legally caused by Funari's negligence. On the special verdict form there were four questions. The first asked if Funari's negligence legally caused Kato's injuries. The jury answered yes. The second asked for Kato's "total damages." The jury totaled $59,536.55. The third asked if there were any injuries related to a pre-existing condition. Yes, answered the jury. The fourth asked that, if so, what percentage of Kato's injuries came from the pre-existing condition. The jury stated "90%." The circuit court reduced $59,536.55 by 90%. Kato appealed. Juries are Presumed to Follow Instructions. Determining the proper amount of dam