Hawai'i Legal News

Background. Ubaldo Cruz was on trial for allegedly committing multiple sexual assaults on his neighbor’s daughter. At trial, Cruz objected to the admission of cell phone records over a three-month period. The circuit court denied the request, but ruled that a failure to call the custodian of records to testify at trial was a violation of Cruz’s constitutional right to confront witnesses. The next day, the prosecution sought to introduce the records with a certified copy of a declaration from the custodian of records on the grounds that they met the business records exception to the hearsay rule. The prosecutor argued that business records “are specifically excluded under Crawford.” The circuit court admitted the records, Cruz was found guilty. Cruz appealed. The Confrontation Clause and Documents. The Confrontation Clause prohibits the use of “testimonial” statements at trial when the declarant is not present and there was no meaningful opportunity to testify. Crawford v. Washing...

State v. Nofoa (HSC April 14, 2015) Background. Toi Nofoa was charged with one count of kidnapping and one count of terroristc threatening in the second degree. In September 2008, Nofoa was held by a judicial determination of probable cause. Attached to the JDPC was an affidavit from an HPD officer that containing hearsay statements from the CW, Nofoa’s girlfriend. Nofoa had a preliminary hearing. At the preliminary hearing, the CW testified that she was in a relationship with Nofoa for about two and half years, and she ended it. She testified that about a month after the breakup, Nofoa called and asked if she was “seeing another guy.” She said it was none of his business. That night Nofoa approached her as she was walking back to her car. The CW said that he wanted to talk to her and she started walking with him. She said he started to get aggressive and then pulled her. As she tried to walk away, he put her in a chokehold, said that he had a gun, and told her to get into the ...

State v. Bowman (ICA February 27, 2015) OVERRULED  Background. Max Bowman was charged with spilling on the highway in violation of HRS § 291C-131. Bowman, a farmer, was driving a truck full of cabbage from his field in Honokaa to Paauilo on the Big Island. He was driving a green flatbed pickup truck with cabbage in the bed. It was not covered. He drove on Route 19—the Hawaii Belt Road—when Officer Romeo Fuiava passed him in the opposite lane. Officer Fuiava kept heading in his direction and saw either cabbage or lettuce in the back of Bowman’s truck. About a half a mile down the road, Fuiava saw lettuce leaves on the road. Fuiava turned around and caught up to Bowman at “Earl’s store.” Bowman was given a citation. At the trial, the prosecutor orally arraigned Bowman like this: On or about the 28th day of August, 2013, in Hamakua, State and County of Hawaii, Max Bowman was the operator of a motor vehicle being moved on a highway, which vehicle was not so constructed, ...

State v. Turping (ICA February 25, 2015) Background. Lori Turping was arrested for operating a motor vehicle while under the influence of an intoxicant. HRS § 291E-61. Specifically she was charged with operating a vehicle while “under the influence of alcohol.” The complaint did not include the statutory definition of the term “alcohol,” which is defined in HRS § 291E-1. Turping moved to dismiss the complaint on the grounds that the complaint failed to include the statutory definition of the term. The motion was denied, the district court found her guilty, and she appealed. Defining “Alcohol”: an Element or a Defense? The term “alcohol” means “the product of distillation of any fermented liquid, regardless of whether rectified, whatever may be the origin thereof, and includes ethyl alcohol, lower aliphatic alcohol, and phenol as well as synthetic ethyl alcohol, but not denatured or other alcohol that is considered not potable under the customs laws of the United States.” HRS §...

Nichols v. State (ICA December 24, 2014) Background. Nicholas Nichols was charged with various felonies in two separate cases. One case involved a home invasion and a shooting. The other case arose out of an assault in Kalakaua District Park. Nichols entered a plea agreement. He pleaded guilty to two felony counts in the assault and fifteen felonies in the home-invasion case. The parties agreed that for each count, he would be sentenced to prison and that he would serve some offenses concurrently. The parties, however, were free to argue that some should run consecutively. The prosecution also agreed not to seek extended terms of imprisonment. In the assault case, the circuit court sentenced Nichols to ten years concurrently in the assault case. In the home-invasion case, Nichols was sentenced to prison on those with a five-year mandatory minimum on seven of the counts. All would run concurrently to each other and total twenty years. In the end, though, the circuit court imposed th...

State v. Monteil (HSC December 23, 2014) Background. James Monteil was charged with one count of prostitution. HRS § 712-1200(1). He pleaded not guilty. At the start of the bench trial, the district court judge engaged in a colloquy about his rights. The court asked Monteil if he understood that no one could force him to testify, that no one could force him to present evidence, that the State had to prove its case beyond a reasonable doubt, that if he did wish to testify, he’d have to testify under oath and be subjected to cross-examination by the prosecutor, and that he could wait to decide to testify until after the State finished presenting its case. Monteil said he understood these rights. The trial court did not inform Monteil that if he did not testify, his silence could not be used against him in deciding the case. At trial, HPD Sgt. Chad Taniyama testified that he posted an ad on “backpage.com” entitled “ExOtIC BeAuTy AwAiTs You ToDaY.” Here’s the ad: Hey fellas my ...

State v. David (ICA December 15, 2014) Background. Peter David was charged with second-degree murder of Santhony Albert and second-degree assault with a dangerous instrument of Torokas Kikku. During the opening statement, the prosecutor, Darrell Wong, told the jury that the three of them were at Kikku’s apartment in Waipahu. David and Albert were drinking and wrestling. At some point, David’s cousins point out that David had a cut on his nose. The prosecutor told the jury that at that point, David said “[n]obody does this to me, make me look like this, beat me up.” After the opening statement, David’s counsel, Edward Aquino, objected that that statement was not made part of the discovery. The prosecutor responded that his understanding of discovery rules required only disclosure of written or recorded statements by the defendant. The circuit court—without correcting the prosecutor’s understanding of the rules—ruled that it was not going to preclude the statement, but give David...