Showing posts from March, 2012

A Rejected Offer (After a full and Fair Trial) may be Ineffective Assistance of Counsel

Lafler v. Cooper (SCOTUS March 21, 2012) Note. This is the companion case to Missouri v. Frye . Background. Anthony Cooper fired a gun at Kali Mundy's head. He missed and Mundy fled. Cooper chased Mundy and fired at her some more. She was hit in her buttock, hip, and stomach, but survived. Cooper was charged with assault with the intent to murder, possession of a firearm in the commission of a felony, and a misdemeanor for possession of marijuana. Twice the prosecution offered to dismiss two charges and recommend at sentencing 51 to 85 months for the other two in exchange for a guilty plea. Cooper admitted guilt to the court and appeared to be ready to take the deal. But his attorney persuaded him to reject the offer after opining that they would be unable to prove murderous intent because Mundy was shot below the waist. Cooper then rejected the offers. On the first day of trial, the prosecution made a third offer on much favorable terms; again it was rejected. Cooper was fou

Failure to Inform Defendant of Formal Plea Offer May be Ineffective Assistance of Counsel

Missouri v. Frye (SCOTUS March 21, 2012) Background. Galin Frye was charged with driving with a revoked license. This was his third offense so it was a felony with a potential sentence for four years prison. The prosecutor sent to Frye's counsel a written plea offer. The prosecutor gave Frye a choice: if he pleaded guilty to the felony, the prosecution would recommend a three-year sentence and 10-days jail, but would not recommend probation. The other option was that the prosecutor would reduce the charge to a misdemeanor and a 90-day jail sentence. Frye's attorney did not inform him about the plea offers and the offers expired. Just before the preliminary hearing, Frye was arrested again for driving with a revoked license. He pleaded guilty without an agreement. The prosecutor recommended a 3-year sentence, made no recommendation for probation, and 10-days jail. The judge sentenced Frye to prison for three years. Frye filed for post-conviction relief alleging ineffective a

Unanimity Instruction Required when Jury not Informed of Which Acts Correspond to Which Counts

State v. Pecpec (HSC March 20, 2012) Background. Orlando Pecpec was charged with 25 counts of violation of a protective order. HRS § 586-11(a)(1)(A). The language for all counts were identical except for the date of the alleged offense: On or about [date], in the City and County of Honolulu, State of Hawaii, [Pecpec] did intentionally or knowingly violate the Order for Protection issued in FC-DA No. 08-1-1887, filed on the 15th day of September, 2008 . . . thereby committing the offense of Violation of an Order for Protection. Counts 1-6 allegedly occurred on October 19, 2009; count 7 on Oct. 22; counts 8-15 and 18-22 on November 6, 2009. Counts 16 and 22-25 allegedly took place on November 7, 2009; and count 17 on November 8. At trial, the complainant, Pecpec's ex-wife, testified that they were married for ten years and had five children together. On September 15, 2008, she got a protective order against Pecpec. The order expires in 2013. The order prohibited Pecpec fro

Juror Misconduct Should have been a Mistrial--not Switching the Juror

State v. Bailey (HSC March 1, 2012) Background. Peter Bailey was indicted with four counts of sexual assault in the first degree. HRS § 707-730(1)(b). The circuit court granted Bailey's motion in limine to exclude any evidence of prior criminal convictions at trial. Jury selection lasted several days. After the jury had been selected, however, Bailey moved for a mistrial on the grounds that the courtroom doors had been locked. The circuit court denied the motion and proceeded to trial. The Trial. The minor complainant testified at trial. She testified that she knew Bailey through the singing activities at their church. One night, Bailey called her and asked to meet him at the church to practice singing. She got permission from her mother and Bailey picked her up and took her to the church. She testified that Bailey approached her from behind and ordered to engage in various sexual acts. She took off her clothes and did so. Her uncle walked in on them and she put on her clot

Parent's Constitutional Right to Spank Kids a Defense in TRO Hearing

Hamilton v. Lethem (HSC February 2, 2012) Background. Lily Hamilton filed an ex parte petition for a temporary restraining order on behalf of her daughter, Amber. The TRO was filed against Christy Lethem, the father, and prohibited any contact with Amber. The TRO was granted. At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said that he was going to pull her out of school and that her younger sister was better than her. Lethem testified at the hearing. He admitted that he had had a strained relationship with Hamilton a

Glaring Judge may be Angry, but not Biased

State v. Higa (ICA January 31, 2012) Background. Matthew Higa was indicted for second-degree murder (HRS § 707-701.5). Higa made headlines when he was arrested under suspicion of throwing the infant, Cyrus Belt, off an overpass in Makiki. Initial Problems with Representation. Soon after being indicted, Higa retained an attorney, Randall Oyama. Higa signed a power of attorney that allowed his father, Shelton, to pay the retainer from the proceeds of a structured settlement in a different case. Months later, Oyama intimated at a pretrial conference that he may have to withdraw because he was not getting paid. At a later conference, however, Oyama said that the matter regarding payment was resolved. At first, the circuit court granted Oyama's motion to appoint a three-member panel to evaluate Higa's mental competence, but the order was set aside on the grounds that it was inadvertently filed. At the same time, Higa signed a new power of attorney authorizing Oyama to directl