Showing posts from June, 2020

Emotional Impact of the Investigation is not Relevant to the Offense Itself

State v. Lora (HSC June 16, 2020) Background. Kevin Lora was charged with one count of sexual assault in the first degree and one count of sexual assault in the third degree. At trial the complainant testified that she was vacationing in Hawai'i with her sister and her friend, Haley Harlow. They stayed in Waikiki. On a Saturday night they went to dinner at Top of Waikiki. On the way, they met a man named “Rob.” The complainant’s back and legs were sore from the day before when they hiked Koko Head. The complainant testified she drank a glass of wine and a rum drink. They tried to get into a nightclub, but were turned away because they were not wearing the proper clothes. Rob went into the nightclub, and the three women decided to go to a different club called “Playbar.” Something awkward happened on the way and the complainant went back to her hotel room alone. She changed into a skirt and received texts from her girlfriends to go to Playbar. She also got a text from Rob. She an

The Right to Present a Complete Defense Requires Telling it in your own Words

State v. Williams (HSC June 15, 2020) Background. Joshua Williams was charged with the attempted murder of David Quindt, Jr. Before trial, Williams filed notice pursuant to HRE Rule 404(b) of prior bad acts. Williams intended to present evidence that Quindt told him about his violent past in an effort to explain why Williams feared for his life. Quindt would boast about doing time for murder in California, doing “hard time,” that he knows how to fight because of the time he spent in jail, he knows “gang-bangers” and gang members, he has experience with violence due to being in jail, he “got away with murder” by beating the charge, and that he did the crime, but still “got off on a technicality.” The prosecution opposed the evidence in a motion in limine. The circuit court presided by the Hon. Judge Karen Ahn, granted the motion in part and allowed Williams to testify about Quindt’s murder conviction and how he had to learn to fight to survive in jail. The circuit court ordered Willi

Officer’s False Testimony Prompts New Trial Even Though it did not Pertain to the Defendant’s Guilt

State v. Stone (HSC June 15, 2020) Background. Kentaru Stone was charged with promoting a dangerous drug in the third degree. The prosecution provided five Honolulu Police Department reports to the defense in discovery. The lead officer in the police investigation was HPD Officer Douglas Korenic II. The police department also has a “found property policy.” Property recovered after an arrest that does not belong to the arrestee is itemized and listed a “found property” for others to claim. The only found property report here was an iPhone. In the prosecution’s opening statement, the prosecutor said that Officer Korenic approached a man at a picnic table at Ala Moana Beach Park at 3:45 in the morning. He talked to the man “when all of a sudden the defendant makes a arm gesture. He uses his arm and he flicks away a small baggie, which Officer Korenic . . . recognizes this substance to possibly be crystal methamphetamine.” The defense posed an alternative theory. Counsel in her open

Testifying Police Officers Can be Confronted with Instances of Untruthfulness in Older Cases

State v. Su (HSC June 23, 2020) Background. Samuel Joo Su was charged with operating a vehicle while under the influence of an intoxicant. HPD Officer Jared Spiker was the key witness for the prosecution at trial. Prior to trial Su filed a notice of intent to present impeachment evidence against Officer Spiker. Su wanted to use extrinsic evidence that in three other cases, Officer Spiker submitted false evidence. The first case involved a hearing in the Administrative Driver’s License Revocation Office (ADLRO). Su included a transcript showing that Officer Spiker admitted to submitting statements that he knew were not true. In the second case, Su requested judicial notice of the records and files in another OUI case. There, Su wanted to use testimony from Officer Spiker about how the defendant was driving on the wrong side of the road, but in light of other evidence, the district court in that case found that Officer Spiker’s testimony made no “physical sense” and acquitted the

Street Performers Aren't Responsible for the Crowd

State v. Zowail (HSC June 15, 2020) Background. Mohammad Zowail was charged with engaging in a business on a public sidewalk in violation of Revised Ordinances of Honolulu (ROH) § 29-5.1. A trial, the prosecution presented evidence from the police. Plainclothes officers were partrolling on foot in Waikiki. At around 7:00 p.m. on a night in November 2017, the officers saw Zowail for five to ten minutes conducting an “art performance.” He was spray painting on a canvas and explaining to a crowd that had gathered what he was doing. He was not selling the artwork, but offered to sell paintings for $75. Zowail testified. He said he was 23 years old and getting a psychology degree. He was hoping to earn a Ph.D. he testified that he has a “passion for art and this is a new generation of art. I was showing people what I do. . . . It’s basically an art show done within like ten minutes, all with spray paint.” He said he was exercising his First amendment right to perform on the public sidewa

HSC Rethinks What it Means to Conduct Police Interrogation

State v. Baker (HSC June 18, 2020) Background. Mustafa Baker was indicted with two counts of sexual assault in the first degree and one count of sexual assault in the third degree. Prior to trial, the prosecution filed a motion to determine the voluntariness of Baker’s statement to the police. At the hearing, the prosecution called Det. Brian Tokita. Det. Tokita testified that he met with Baker while Baker was in custody. He went over his constitutional rights using a form. According to Det. Tokita, Baker said that he understood his rights and signed the form showing that he would waive them and speak to the police. The prosecution then presented evidence of an audio recording of Det. Tokita’s interrogation. The recording starts with Det. Tokita asking basic introductory questions: Baker’s date of birth, level of education, age, and place of employment. Baker was 23 and worked at, of all places, a bakery. He also said he never finished the eighth grade. He did not know his addre

Preserving an Issue may Require Motions in Limine and an Objection at Trial

State v. Engelby (HSC June 12, 2020) Background. Jason Engelby charged with two counts of sexual assault in the first degree on December 1, 2011 and December 4, 2012. The complainant was the daughter of a close friend. The parties filed motions in limine prior to trial to determine if the proffered expert, Dr. Alexander Bivens, was qualified to testify as an expert and, if qualified, the scope of his expert testimony. The prosecution wanted him qualified as an expert “on the dynamics of child sexual assault” and claimed that Dr. Bivens would testify about those dynamics and patterns of behavior exhibited by child victims, including delayed reporting and tunnel memory. Engelby objected on the grounds that the proffered testimony was irrelevant, unduly prejudicial, improperly bolstered the prosecution witnesses, usurped the jury’s function, and improperly profiled Engelby as a child molester. Engelby further argued that expert testimony was unnecessary to explain the phenomenon of “de

De Minimis Motions Require Examining Quantity of Drugs and Additional Circumstances

State v. Enos (HSC May 27, 2020) Background. Homeless people frequent an area under the H-1 freeway near the intersection of Waialae and Kealaolu Avenue in Honolulu. The area belongs to the State of Hawai'i and there are signs posted nearby stating “Keep out,” “Government Property” and “Trespassers with be Prosecuted.” One night at around 11 p.m., Officer Albert Moniz was patrolling the area on foot and saw Frank Enos behind a cardboard box sleeping. Officer Moniz saw that next to Enose was a “neoprene pouch with a clear glass pipe” commonly used for smoking crystal methamphetamine. Officer Moniz ordered Enos to stand up and hand over the pipe. Enos said he didn’t know what he was talking about. Officer Moniz arrested him for criminal trespass onto state lands in violation of HRS § 708-814.7. Enos told the officer, “I know, but I have nowhere else to go.” Officer Moniz seized the open pouch and pipe. Enos maintained that the pipe was not his and that he was watching the area f

Canine Sniffs, Speculative Cops, and Keeping the Door Closed

State v. Inimaka (HSC June 9, 2020) Background. Larry Inimaka, Liane Henderson, and Cheri Numazawa were charged with drug offenses. Inimaka filed a motion to suppress the evidence seized by the police from his truck. At the hearing, the police testified that at around 2:30 in the morning, they received from dispatch a 911 call from Numazawa alleging that Ikimaka struck her, took her purse, and left in a gold Chevy truck. The officers stopped the truck and asked Ikimaka and Henderson to get out of the truck. It had been raining “off and on.” After 30 minutes the officers found Numazawa at a nearby beach. She just wanted her purse back and did not want to press charges. The officers, however, determined that they had probable cause to search the truck. Numazawa had a drug history, but the main reason to search was based on the theft. The truck was seized as evidence and the police officers told Ikimaka and Henderson they were free to go. Ikimaka stayed and another officer read him

HSC Applies Rule of Lenity to Order for Protection

State v. Bright (HSC June 3, 2020) Background. Justin Bright was the respondent in a petition for an order for protection in the family court. He agreed to the order that prohibited him from having contact with the petitioner. The order specifically laid out what to do when he happened to come across the petitioner in public: R espondent is prohibited from coming or passing within 100 yards of any place of employment or where the petitioner lives and within 100 feet of each other at neutral locations. In the event the parties happen to come upon each other at a neutral location, the subsequent arriving party shall leave immediately or stay at least 100 feet from the other. When the parties happen to come upon each other at the same time at a neutral location, the Respondent shall leave immediately or stay at least 100 feet from the Petitioner. Do not violate this order even if the Petitioner invites you to be at the place of employment or where the other lives. The order did not