Hawai'i Legal News

  State v. Smith (HSC September 12, 2025). Brian Smith was indicted for murder and attempted murder arising from a shooting in Kona. Both counts alleged that he was subject to a sentencing enhancement under HRS § 706-660.1 alleging that he possessed, used, or threatened to use a firearm while committing the offense. The prosecution did not allege a state of mind for the enhancement.   Smith went to trial. The circuit court instructed the jury that if it found him guilty of either count, it must answer a special interrogatory:   Has the prosecution proved beyond a reasonable doubt that the defendant intentionally used and/or threatened to use a firearm, whether the firearm was loaded or unloaded, operable or inoperable, while engaged in the commission of the offense of Murder in the Second Degree or Manslaughter (Extreme Mental or Emotional Disturbance)?   The jury returned a guilty verdict and answered “yes” to the interrogatory. The circuit court sentenc...

  State v. Lafoga (HSC March 15, 2023) Background. Brandon Lafoga and Ranier Ines were indicted. Lafoga was charged with attempted murder in the second degree, conspiracy to commit murder in the second degree, carrying or use of a firearm while in the commission of a separate felony, kidnapping, and prohibited ownership of a firearm and ammunition. Ines was charged as an accomplice to attempted murder in the second degree, conspiracy to commit murder, and robbery in the first degree.   The circuit court—with the Hon. Judge Paul Wong presiding—ruled that the jury would be “innominate.” That is, everyone would refer to the prospective jurors by number, and not by name. the parties would conceal the jurors’ identifying information like their name, phone number, and address. The court alone had that information. Both the prosecution and defense counsel objected. The judge explained that in the past he encountered anxious jurors who would be too afraid to serve. The court co...

  State v. Perry (HSC March 8, 2023) Background. In 2002, Jason Perry was indicted with two counts of murder in the second degree. HRS § 707-701.5 (1993). At his trial in 2003, a co-defendant testified against him. Perry took the stand and testified too. Their testimony centered around count 2 and the shooting of the possible witness to the killing of the decedent in count 1. The co-defendant testified that Perry shot the witness. Perry said it was the co-defendant.   The jury returned a guilty verdict for count 1 and answered a special interrogatory establishing that Perry was both a principal and accomplice in the murder. In count 2, the jury found Perry guilty as an accomplice only. The circuit court—with the Hon. Judge Karen S. Ahn presiding—gave another special interrogatory about whether the prosecution proved that Perry was carrying or using a semi-automatic weapon at the time of the killing in count 2. The jury answered that he had. This fact is needed to impose...

Flubacher v. State (HSC March 21, 2018) Background. Robert Flubacher pleaded guilty to multiple felony offenses in three separate cases. The prosecution filed a motion for extended terms of imprisonment prior to sentencing. The circuit court granted the motion and sentenced Flubacher to life imprisonment with the possibility of parole and other terms of imprisonment. He did not appeal. Judgment became final on October 13, 2003. Two years later he filed a petition pursuant to HRPP Rule 40 collaterally attacking the sentence and that was denied. In 2014 he filed a second petition alleging an unconstitutional sentence pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000). The circuit court denied the petition. The ICA affirmed. Flubacher petitioned for certiorari. The Long, Slow Death of Extrinsic and Intrinsic Factors in Hawaii. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonab...

State v. Auld (HSC November 24, 2015) Background. Jayson Auld was convicted of one count of robbery in the second degree. After the verdict but before sentencing the prosecution moved to impose mandatory minimum terms of imprisonment based on a prior conviction. This was the first official notice of the State’s intention to seek the mandatory minimum. It was never pleaded in the indictment, presented to the grand jury, and presented after the verdict before the petit jury. The circuit court granted the motion and sentenced Auld to prison for a period of ten years with a mandatory minimum of 6 years and 8 months. He appealed. On appeal, Auld argued that the imposition of the mandatory minimum was in violation of his right to have each and every element proven before a jury beyond a reasonable doubt. The ICA affirmed. The HSC accepted his petition for writ of certiorari. The Wild, Weird World of Sentencing Laws. Defendants have the constitutional right to have each and every el...

State v. Hussein (HSC April 21, 2010) Background. Hussein pleaded guilty to 39 offenses. This included 8 counts of identity theft in the 2d degree, class B felonies, 4 counts of identity theft in the 3d degree (class Cs), 15 counts of forgery in the 2d degree (class Cs), 1 count of fraudulent use of credit card (a class C), and 7 counts of theft in the 2d degree (class C). Hussein was already serving a ten-year sentence (one ten-year term and two five-year terms concurrently). The State moved for the instance offenses to run consecutively with the one she was already serving. The circuit court granted the motion. Hussein appealed on the grounds that the sentence was unlawful and that her counsel was ineffective for not presenting mitigating factors at sentencing and for failing to file a motion to reduce the sentence. The ICA affirmed. No "Clear Evidence" that the Sentencing Court Failed to Consider General Sentencing Factors. The sentencing court has wid...

State v. Mundon (HSC November 13, 2009) Background. Mundon was charged with several counts of sex assault in various degrees, kidnapping, terroristic threatening, and assault. Mundon requested to represent himself at trial and requested appointed standby counsel. The circuit court granted those requests. At trial, the complainant that she encountered Mundon one night at Kapa'a Beach. She testified that she was looking for a cheap hotel room. Mundon allowed her to sleep in the back of his truck. As she slept, Mundon began to putting his hands under her underwear and feeling her outer labia. She also testified that he started to kiss and touch her breasts approximately ten to fifteen times. When she tried to get away, Mundon produced a knife and threatened to kill her if she tried to get away. A struggle ensued on the beach and eventually she got away. Testimony from police officers corroborated the complainant's version. Mundon testified and his version of events...