Showing posts from August, 2010

An Unprepared Prosecutor does not Warrant Dismissal with Prejudice

State v. Correa (ICA August 27, 2010) Background. Kyle Correa was charged with abuse of a family or household member. HRS § 709-906. After a few continuances, the family court set trial for April 13, 2009. This was the last continuance absent something "extraordinary." Shortly before trial, Correa filed a motion to continue. The motion was denied. Prior to trial, the family court asked the prosecutor if he was prepared. The prosecutor answered in the affirmative. However, the family court asked if the prosecutor spoke with the Complaintant. The prosecutor did not and asked for a continuance. The request was denied. The family court took a brief recess. After the recess, the family court asked again. The prosecutor said he just spoke with her and was ready to proceed for trial since the continuance was denied. The family court again said that the prosecutor was not prepared and dismissed the case with prejudice. The Family Court Abused its Di

Intersecting Hearsay with the Confrontation Clause

State v. Delos Santos (HSC August 19, 2010) Background. Kenneth Delos Santos was charged with abuse of a family or household member. HRS § 709-906. The prosecution alleged that Delos Santos slapped his girlfriend's face and stomped on her thigh in their Waikiki apartment. Officer Jason Kubo testified that he responded to a domestic disturbance in Waikiki. A hearing was held to determine the admissibility of a statement reported from Officer Kubo. At the hearing, Officer Kubo testified that upon arriving to the scene, he spoke to the girlfriend. Officer Kubo testified that girlfriend said, "my boyfriend beat me up." She also said that she argued with Delos Santos, Delos Santo hit her in the jaw hard enough to make her fall to the ground, and that when she was on the ground Delos Santos stomped on her thigh several times causing pain. The family court concluded that the entire statement was an excited utterance and, thus, admissible. Officer Kubo repe

Double Jeopardy not Offended in Retrial of Single Count of Multiple-act and Alternative-Means Offense

State v. Kalaola (HSC August 19, 2010) Background. Jason Keliikaoikaika Kalaola was charged with a single count for failing to disperse (HRS § 711-1102). At trial, the prosecution called police officers who responded to a disturbance at the Aloha Tower Marketplace, a mall. Officer Keani Alapa testified that he saw approximately 50 to 75 people fighting on the 2d floor of the mall. Officer Alapa testified that he saw Kalaola challenging people to fight and calling people out. Kalaola was among a group of people that Officer Alapa ordered to leave. They did not leave at first, but eventually they started going downstairs, where new fights started up again. Sergeant Albert Lee testified that he saw people streaming out onto the first floor and parking lot. Sergeant Lee told Kalaola to leave the area at least ten times. Kalaola was yelling and cussing, and Sergeant Lee told him to leave at least ten more times. He saw more fights in the parking lot and Sergeant Lee t

HSC: Evidence of prior Sexual Relations Relevant to show Opportunity to Engage in the Charged Conduct in Sex Assault Trial

State v. Behrendt (HSC August 19, 2010) Background. Robert Behrendt was charged with three counts of sexual assault in the first degree and one count of kidnapping. The sex assault charges stem from three incidents of alleged sexual contact with Behrendt and SI, a minor under the age of 16. SI grew up in Kona and moved to live with her sister, LI, and LI's husband, Behrendt, in South Dakota, when she was 11. The circuit court allowed SI and LI to testify about instances of sexual contact between SI and Behrendt that allegedly took place in South Dakota and Washington State. The circuit court allowed this evidence as HRE Rule 404(b) evidence establishing a motive, opportunity, and plan. At the end of trial, the circuit court provided a limiting instruction for the evidence of sexual contact on the mainland. The circuit court also provided instructions for sexual assault in the third degree as a lesser-included offense. Behrendt did not object to its inclusion, but

Agency's Approval of Developer's plan to Remove Skeletal Remains Subject to Judicial Review

Kaleikini v. Theilen (HSC August 18, 2010) Background. General Growth Properties (GGP) discovered remains of ancient Hawaiians, or iwi, on its property near Ward Center in Honolulu. GGP discovered the iwi as it was constructing the Ward Village Shops. A hearing was held before the Oahu Island Burial Council. At the hearing, GGP sought permission to remove the iwi into an area that would be safe. GGP also maintained that there was no way to alter the current construction plan. Keleikini testified at the hearing. She opposed GGP's plan and testified that she is a "cultural descendant" of the iwi and that Native Hawaiian cultural practices require undisturbed treatment of the iwi. Kaleikini argued that GGP should have been more careful in their construction plans. The burial council approved of GGP's plan. Kaleikini wrote a letter to the Department of Land and Natural Resources (DLNR) to review the burial council's decision at a contested case

Right Charge, Wrong Evidence

State v. Hitchcock (HSC July 30, 2010) Background. Sean Hitchcock was orally charged with illegal camping in violation of Revised Ordinances of Honolulu § 10-1.2(a)(13): Mr. Hitchcock, on January 14, 2009, within the limits of a public park, you did intentionally, knowingly, or recklessly camp in any area not designated as a campground thereby committing the offense of illegal camping in violation of Section 10-1.2(a)(13) of the [ROH]. Hitchcock did not challenge the sufficiency of the charge. At trial, Officer Dennis Carino testified that on that night he was at Kea'au Beach Park out near Waianae where he saw Hitchcock going in and out of a tent within the beach park. Hitchcock told Officer Carino that it was his tent. Officer Carino also testified that there were signs all over the park stating "no camping." Officer Carino could not remember if Hitchcock had a permit, but he explained that there are certain nights--Wednesdays and Thursdays--where no one i

Bullet in Brassiere is no De Minimis Matter

State v. Rapozo (HSC July 30, 2010) Background. Tanya Rapozo was stopped by the police for driving erratically on Ala Wai Boulevard at around 1:15 a.m. She was arrested and a search at the station revealed that she had a .38 caliber bullet tucked into her brassiere. At the time of the search, Rapozo was a convicted felon. Her crimes included drug offenses and theft. Rapozo was charged with prohibited ownership or possession of any firearm or ammunition. HRS § 134-7(b) and (h). Rapozo filed a motion to dismiss on the grounds that charge was a de minimis infraction. Her only evidence was a declaration that stated she was going to convert the bullet into a charm bracelet. The circuit court granted the motion. The ICA vacated. Analyzing De Minimis Infractions Requires Comparison of the Statutes. The trial court may dismiss an action as a de minimis infraction when, "having regard to the nature of the conduct alleged and the nature of the attendant circumstan