Showing posts from November, 2019

The Defendant Always Gets the Last Word Before Sentence is Imposed

State v. Carlton (HSC November 25, 2019) Background. Brok Carlton was charged with kidnapping, robbery in the first degree, assault in the second degree, and unauthorized control of a propelled vehicle. He went to trial and lost. The Honorable Judge Rhonda Loo of the circuit court sentenced him to 50 years imprisonment. Carlton appealed to the ICA. The ICA vacated the judgment on the grounds that the jury was not properly instructed on the law of merger for the kidnapping, robbery, and assault charges. The ICA affirmed the UCPV count, but remanded the case back to the circuit court and ordered the prosecution to either retry Carlton on the other three counts or dismiss two of the three and have the circuit court reinstate the conviction and resentence of Carlton. The judgment on appeal was entered on June 27, 2016. The prosecution took no action until a hearing was held on January 11, 2017. At that hearing the prosecutor informed the court for the first time that it was going t

HSC Clarifies when Counsel Opens the Door and Re-emphasizes the Need for Merger Instructions

State v. Lavoie (HSC November 22, 2019) Background. Marlin Lavoie was charged with murder in the second degree, carrying or using a firearm in the commission of a separate felony, being a felon in possession of a firearm or ammunition, and place to keep loaded firearms. The charges stem from the killing of Lavoie’s girlfriend and the mother of his four children, Malia Kahalewai on Molokai. Lavoie moved prior to trial to preclude prior bad acts in which Lavoie injured or threatened to hurt Kahalewai. Judge Joseph E. Cardoza of the circuit court granted the motion; the prosecutor noted that “should the door be opened” it would ask to revisit the pretrial ruling. The Trial. Nicole Aea, a friend of Kahalewai testified that Kahalewai was living with Lavoie and their children in the remote Honouliwai Valley. She had been staying with her and her other friends for a few days. On the night of the shooting, Aea was with Kahelwai and her friends when Lavoie came over to the apartment. L

Counsel can Urge Jury to Walk in Defendant’s Shoes (for Purposes of Choice-of-Evils Defense)

State v. Kauhane (HSC November 12, 2019) Background. Fifteen to twenty protestors objected to the construction of a large telescope at the summit of Haleakala on Maui by standing shoulder to shoulder on the roadway in 2015. The protestors were blocking the roadway to prevent a convoy of construction vehicles and equipment heading to the summit. When the initial group of protestors were cleared, seven sat in the middle of the roadway chanting and praying. Keith Kauhane was among the Haleakala seven arrested. Kauhane was served a criminal complaint alleging the offense of Obstructing in violation of HRS § 711-1105(1)(a). Here’s the language of the charge: That on or about the 20 th day of August, 2015, in the County of Maui, State of Hawaii, KEITH KAUHANE, whether alone or with others and having no legal privilege to do so, did knowingly or recklessly persist to obstruct any highway or public passage, after a warning by a law enforcement officer to move to prevent or to ceas

When are the Police Allowed to Lie to a Suspect to Induce a Confession?

State v. Matsumoto (HSC October 29, 2019) Background. Keith Matsumoto, a wrestling coach, was arrested under suspicion of sexual assault that allegedly occurred at a wrestling tournament. He was indicted with sexual assault in the third degree. Matsumoto moved to suppress evidence statements obtained during the police investigation. At the hearing, Matsumoto testified he was arrested and taken to the main station in Honolulu and remained in custody. Eight hours later he was taken to an interview room. He made a statement to the police and then was told that he would take a polygraph examination the next day. The next morning Matsumoto was taken to the polygraph room at the police station. Another detective, Det. Allan Kuaana gave Matsumoto a polygraph form, strapped him up to the machine with electrodes, and asked him a series of questions to calibrate the polygraph. For example, Det. Kuaana told Matsumoto to say that $20 bill in his hand was $5. He interviewed Matsumoto a