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Showing posts from 2021

Two Notices of Appeal, Lower Court Erred in Fixing Illegal Sentence, and other Oddities

State v. Smith (ICA March 9, 2021) Background. Scott Smith was convicted of assault, terroristic threatening, sexual assault, and kidnapping. The circuit court—Hon. Judge Shackley Raffetto—sentenced him to 45 years of imprisonment in 2002. He appealed and the ICA affirmed. Smith filed a petition to set aside the conviction pursuant to HRPP Rule 40 asserting various constitutional grounds. The petition was denied. Smith appealed that and it was affirmed. In 2015, Smith filed a motion to recalculate the terms of imprisonment pursuant to HRS § 706-668.5(3). The motion was denied without prejudice because of the pending cases on appeal.   Smith filed a second Rule 40 petition in 2017 asserting more grounds to set aside the conviction. The petition was denied without a hearing and he appealed again. The ICA agreed on a single point: that the trial court erred in failing to instruct the jury on merger of kidnapping and assault. It remanded the case directing the prosecution to either

Credit for Time Served Includes the Time Spent with DOH in an Institution

  State v. Torres (ICA April 8, 2021) Background. Richard Torres was charged by way of a felony information with promoting a dangerous drug in the third degree and a park violation. The warrant was served on him and bail was set at $11,000. He could not afford to bail out and remained in custody at the Oahu Community Correctional Center. Torres’s counsel moved for an examination to determine his fitness to proceed in the case pursuant to HRS Chapter 704. The circuit court—with the Hon. Judge Paul B. K. Wong presiding—granted the motion. More than three months the circuit court entered an order suspending proceedings and declared Torres unfit to proceed. The order committed Torres to the custody of the Director of Health and placed him at the Hawai'i State Hospital or other appropriate institution. Torres was also expressly ordered that he “shall not be authorized to leave the institution” without a prior court order. Nearly a year went by before he was found fit to proceed to tr

Trial Court must Instruct Jury on Statutory Definitions of Offense

  State v. Lajala (ICA March 30, 2021) Background. Malia Lajala was indicted with, among other things, the offense of hindering prosecution in the first degree. HRS § 710-1029(1). Her trial lasted more than a month. At the end of the trial, the prosecution proposed instructions on the elements of the offense, but did not define the words “rendered assistance,” one of the statutory terms in offense. One of Lajala’s co-defendants provided instructions that included the statutory definition of the term. Lajala joined in the request to have the instruction, but over the defense’s objection, the circuit court, with the Hon. Judge Robert Kim presiding, refused to provide it to the jury. Lajala was found guilty. Her motion for new trial raising the issue was denied. She was later convicted and sentenced. She appealed to the ICA. The record on appeal did not include the trial transcripts.   Getting the Right Instructions is on the Court, not the Parties. “In a jury trial, it is the cour

HRE Governs Motions in Limine about Evidence, No Explanation Required

  State v. Marroquin (HSC March 17, 2021) Background. Benito Marroquin III was charged with assault. He claimed self-defense and filed motions in limine seeking admission of statements made by eyewitnesses to the police. These statements were evidence that Marroquin punched the complainant because the complainant was choking him. Marroquin argued that the statement to the police was a statement of recent perception and, therefore, an exception to the hearsay rule pursuant to HRE Rule 804(b)(8). Marroquin also proffered in another motion in limine evidence from a defense investigator who interviewed another co-worker. This co-worker told the investigator that the complainant announced he “wasn’t going to take that from a punk like [Marroquin].” Marroquin also argued this statement was admissible pursuant to HRE Rule 804(b)(8). The circuit court, with the Hon. Judge Ronald Ibarra presiding, denied both motions. On the proffered evidence from the police officer, the circuit court state

Judges Cannot Resort to Coercion to Settle the Case

  W.W. v. D.S. (HSC March 12, 2021) Background. In a bench trial before the family court, with the Hon. Judge Douglas Sameshima presiding, between Mother and Father, a heavily contest issue centered around custody and visitation rights for the parents. Father wanted overnight visits with his son. At trial, Father called the court-appointed custody evaluator as an expert witness. Court was adjourned for the lunch recess. When the parties returned in the afternoon, they told the family court they reached an agreement. Mother’s counsel recited the terms of the agreement with Father’s counsel and evaluator chiming in on certain points. The family court agreed and asked to reduce the terms to writing. Mother submitted written terms and Father filed a written objection. The family court adopted the agreement without acknowledging the objection. Counsel for the parties did not sign it.   Father filed a motion for reconsideration and argued that the terms did not reflect what was on the

Parent's Right to Counsel Triggered when DHS Files for Family Supervision

  In re: L.I. & H.D.K. (HSC March 11, 2021) Background. The Department of Human Service intervened between Mother and her child after Mother admitted to having a substance abuse problem during an interview with DHS. On June 13, 2014, DHS filed a petition for “Family Supervision.” Mother consented to the plan and agreed to a service plan requiring her to participate in a substance abuse assessment and recommended treatment, receive counseling, be responsible for her child, and cooperate with DHS. At a status hearing, the family court, with the Hon. Judge Keith E. Tanaka presiding, reviewed a DHS report detailing Mother’s inability to “manage her life” and care for her child. The family court revoked supervision and placed Mother’s child in foster care. The family court also ordered another service plan in which Mother agreed to participate in a psychological evaluation, substance abuse assessment and recommended treatment including submitting to random urine analysis, and monthly

Judicial Notice of Math and Other "Generally Known Facts"

  State v. Kwong (HSC March 4, 2021) Background. Maggie Kwong was charged with operating a vehicle under the influence of an intoxicant. At her trial, Honolulu Police Department Officer Josh Wong testified that at around 3:30 a.m. he was traveling on Kapiolani Boulevard about 30 feet from the intersection with Isenberg street when Kwong abruptly cut him off by moving her vehicle from the right lane to the middle land and then into the far-left lane all without using her signal. According to Officer Wong, Kwong moved between his vehicle and a pick up truck that was turning left onto Isenberg Street. Officer Wong testified that he slammed on his breaks to avoid colliding into the back of Kwong’s vehicle and that “whatever was on my seat that wasn’t fastened, all the stuff went onto the floorboard.” He pulled Kwong over, got her out of the car, subjected her to field sobriety maneuvers, and determined that she failed those maneuvers.   On cross-examination, Officer Wong committed h

Trial Court’s Refusal to Instruct Jury on Negligence was not Erroneous in Assault Trial

  State v. Valoroso (ICA February 26, 2021) Background. Randal Valoroso was charged with assault in the first degree; that is, intentionally or knowingly causing serious bodily injury. At trial, the prosecution called Christopher Gray, who testified that Valoroso parked his parked his pickup truck and trailer about ten feet away from his the door to his house in Makawao on Maui. Gray was staying with his mother, Tracy Taylor, at the time. He told Valoroso he needed to move the truck. Valoroso challenged him. Gray started arguing with Valoroso and Taylor tried to intervene. Gray testified that Valoroso shoved Taylor, who slid down to the ground, and Valoroso jabbed a metal object into Taylor’s leg. Taylor also testified about the altercation with Gray and Valoroso and Valoroso pushing her back into the house, falling down, and getting injured.   The defense called the one of the officers who came to the scene and testified about inconsistent statements with Gray and Taylor. The d