Opinion [pdf]

Concurring opinion of Moon, C.J. [pdf].  Concurring opinion of Acoba, J. [pdf]

Opinion [pdf]

Opinion [pdf]

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case requires us to determine whether a police officer's request to a defendant for consent to search a bag constituted interrogation.  We must also decide whether the defendant, who denied ownership of the bag in response to the officer's request, abandoned the bag and thus relinquished any reasonable expectation of privacy in it.

. . . .

We affirm in part and vacate in part, and remand for further proceedings.  First, we conclude that Sergeant Cricchio's request that Rippe sign a consent form did not constitute interrogation, because the request was not reasonably likely to elicit an incriminating response.  Rippe's disclaimer of ownership of the bag is therefore admissible, although Rippe's responses to Cricchio's follow-up questions were properly suppressed because those questions did constitute interrogation.

Second, considering Rippe's disclaimer of ownership of the bag in light of the surrounding circumstances, we conclude that Rippe abandoned the bag. . . . Finally, we conclude that Rippe's statements to police on the day after his arrest were not fruit of the poisonous tree, subject however to the circuit court's determination of the lawfulness of the search of the BMW and seizure of the bag.

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

This consolidated appeal arises from two cases in the Family Court of the First Circuit (family court) that culminated on August 14, 2006 with orders (August 14, 2006 Orders) that (1) divested Father-Appellant (Father) of his parental and custodial rights in J.A. and L.A. (collectively, Sons), his biological sons with Mother-Appellant (Mother), and awarded permanent custody over Sons to the Director of the Department of Human Services, State of Hawaii (DHS); and (2) divested Mother of her parental and custodial rights in Sons, as well as N.A., M.A. (1), and M.A.(2) (collectively, Triplets), her three daughters with a man who died in August 2002 (Deceased Husband), and awarded permanent custody over Sons and Triplets (collectively, Children) to DHS.

We affirm the August 14, 2006 Orders as to Mother.  However, we hold that Father was denied his right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution, when he was not provided with appointed counsel until sixteen days prior to the trial on DHS's motion for permanent custody.  Accordingly, we vacate the August 14, 2006 Orders as to Father and remand for further proceedings consistent with this opinion. [footnotes omitted]

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Appellant-Appellee/Cross-Appellee E & J Lounge Operating Company, Inc., a Hawai'i corporation (Petitioner), seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on January 8, 2008, pursuant to its December 24, 2007 published opinion vacating the April 20, 2006 (1) Findings of Fact (FOF), Conclusions of Law (COL) and Decision and Order and (2) the Judgment of the Circuit Court of the First Circuit (the court), and remanding the case to the court to determine Petitioner's appeal on the merits.  See E & J Lounge Operating Co. v. Liquor Comm'n, City & County of Honolulu, 116 Hawai'1 428, 556, 174 P.3d 367, 395 (App. 2007). 

We hold that (1) public hearings on liquor license applications held by the liquor commission are contested case hearings such that Hawai'i Revised Statutes (HRS) § 91-11 (1993) requires any commissioner who is not present at any stage of the public hearing to become familiar with the record before voting on a liquor license application, unless the application is automatically rejected pursuant to HRS § 281-59(a) (2007), (2) Respondent/Appellee-Appellant/Cross-Appellee Liquor Commission of the City & County of Honolulu (the Commission) did not comply with HRS § 91-11 in this case, (3) HRS § 91-13.5 (Supp. 2004) does not require automatic approval of Petitioner's liquor license application, and (4) the court's finding, that it is unclear from the present state of the record whether the Commission complied with the notice requirements of HRS § 281-57 (Supp. 2006), because it was not challenged on secondary appeal to the ICA or this court, is affirmed. 

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Andrew K. Kamanao (Petitioner) seeks review of the judgment of the Intermediate Court of Appeals (the ICA) filed on January 3, 2008, pursuant to its December 13, 2007 Summary Disposition Order (SDO) affirming the October 16, 2006 amended judgment of the first circuit court (the court) convicting Petitioner of two counts of rape in the first degree, Hawai‘i Revised (HRS) § 707-730(1)(a)(i) (1985) (Counts VI and IX); and one count of sodomy in the first degree, HRS § 707-733(1)(a)(i) (1985) (Count XI). The appeal to the ICA was from the court's sentence of Petitioner to twenty years of imprisonment for each count, with a mandatory minimum term of five years on each count as a repeat offender, with the terms of imprisonment for Counts IX and XI to run concurrently with each other and consecutively to Count VI, with credit for time served.

We hold that the ICA did not gravely err in affirming the court's judgment because in Petitioner's case (1) under HRS § 706-606.5 (1985),mandatory minimum sentences must be imposed under specified conditions; (2) pursuant to HRS § 706-606.5, the court may run mandatory minimum sentences consecutively for multiple offenses; (3) mandatory minimum sentences imposed on repeat offenders pursuant to HRS § 706-606.5 are part of indeterminate maximum sentences; (4) HRS § 706-668 (Special Pamphlet 1975) requires that multiple sentences imposed by the court shall be served concurrently; (5) HRS § 706-606.5 does not conflict with HRS § 706-668 because the language of the latter may be construed as prohibiting consecutive term sentencing where multiple sentences of imprisonment are imposed at the same time, except that in certain situations such as those contemplated by the repeat offender provisions of HRS § 706-606.5, consecutive term sentencing is permitted; (6) assuming arguendo a conflict between HRS § 706-606.5 and HRS § 706-668 exists, repeat offenders must be sentenced in accordance with HRS § 706-606.5 because a specific statute controls over a general statute concerning a common matter; and (7) inasmuch as Petitioner was sentenced under HRS § 706-606.5 within the parameters described above, Petitioner's consecutive indeterminate maximum sentences do not constitute a violation of the due process and ex post facto provisions of the federal and Hawai‘i constitutions. [footnotes omitted]

Dissenting opinion by Moon, C.J. [pdf]. Dissenting opinion by Levinson, J. [pdf]

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Petitioner-Appellant Frank O. Loher (Loher), aka Frank Loher, appeals the Order Denying Petition for Post-Conviction Relief, filed on March 16, 2006 in the Circuit Court of the First Circuit (Circuit Court).  The Circuit Court denied without a hearing Loher's Petition to Vacate, Set Aside, or Correct Judgment or to Release Prisoner from Custody, pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure (HRPP), filed on October 18, 2005 (Rule 40 Petition).  Loher raises numerous points of error.

. . . .

The Circuit Court's Order Denying Petition for Post-Conviction Relief, filed on March 16, 2006, is affirmed in part and vacated in part. This case is remanded for a HRPP Rule 40 hearing consistent with this opinion.  [footnote omitted]

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Nathan T.K. Aipa (Aipa) appeals from an order denying Aipa's motion for summary judgment, or in the alternative, to compel arbitration (Order), regarding claims brought by him by Plaintiff-Appellee Henry Haalilio Peters (Peters) for alleged breaches of attorney-client confidentiality in conjunction with certain grand jury testimony given by Aipa.  The Order was filed on December 7, 2005, in the Circuit Court of the First Circuit (Circuit Court).

Aipa argues the Circuit Court erred when it denied his motion seeking either summary judgment in his favor or, in the alternative, to compel arbitration because Peters allegedly released Aipa from liability and agreed to arbitrate disputes regarding the release when Peters entered into a broad settlement agreement with, inter alia, the Attorney General of Hawai'i (AG), Kamehameha Schools Bishop Estate (KSBE), KSBE's interim trusteees, and Peters's (former) co-trustees for KSBE.

. . . .

For the reasons set forth above, we vacate the Circuit Court's Order as to the denial of Aipa's request to compel arbitration, dismiss this appeal, without prejudice, as to the denial of summary judgment, and remand this case to the Circuit Court for further proceedings consistent with this Opinion. [footnote omitted]

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On February 11, 2008, the plaintiff-appellants/cross-appellees-petitioners Bang Ja Guajardo (Mrs. Guajardo) and Richard Guajardo (Mr. Guajardo) (collectively, the Guajardos) filed an application for a writ of certiorari, urging this court to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in Guajardo v. AIG Hawaii Insurance Co., No. 27893 (Hawai'i Ct. App. Oct. 25, 2007).  They argue that the ICA gravely erred in concluding (1) that the defendant-appellee/cross-appellant-respondent AIG Hawaii Insurance Company, Inc. (AIG) did not definitely deny the Guajardos' request for consent to their settlement with the third-party tortfeasor, Gary Senaga (Senaga), who injured Mrs. Guajardo, (2) that the first circuit court, the Honorable Bert J. Ayabe presiding, correctly ruled that AIG did not misrepresent the terms of its insurance policy to them in response to their claim for underinsured motorist (UIM) benefits, (3) that, even if AIG misrepresented the terms of the policy, the misrepresentation did not prejudice the Guajardos, (4) that AIG was not subject to a duty to conduct an independent investigation into Senaga's assets, (5) that the circuit court correctly granted summary judgment in favor of AIG, because the ICA misstated the standard of review of summary judgments and because the reasonableness of AIG's handling of the Guajardos' claim remains a genuine issue of material fact, and (6) that the circuit court correctly declined to grant the Guajardos' request to conduct further discovery pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 56(f).

We hold that the ICA erred in affirming the circuit court's grant of partial summary judgment in AIG's favor and against the Guajardos with respect to the Guajardos' bad faith claim and in concluding, as a matter of law, that any unreasonable interpretation of the Guajardos' policy by AIG did not prejudice them.  Accordingly, we vacate the circuit court's judgment and remand this case to the circuit court for further proceedings consistent with this opinion. [footnote omitted].

Concurring opinion by Acoba, J. [pdf]

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

This appeal arises out of a divorce proceeding in the Family Court of the First Circuit (family court) between Defendant-Appellant Jane Doe (Defendant or Mother) and Plaintiff-Appellee John Doe (Plaintiff or Father) and custody issues involving the daughter (Daughter) of Mother and Father.  Mother appeal from the following two orders:

. . . .

On appeal, Mother argues that the family court erred by denying her Motion for Partial Reconsideration and, therefore, the family court's FOFs 51 and 52 are erroneous and its COLs 28 and 29 are wrong for the following reasons:

. . . .

The [Orders] are reversed with respect to the family court's findings and conclusions that Mother acted as a team parent and the family court's restrictions on Mother's access to the record in the instant case.  We affirm the two orders in all other respects.   [footnote omitted]

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Better Hearing of Hawai‘i, LLC (Better Hearing), appeals from the Judgment of the District Court of the Fifth Circuit (District Court), in favor of Plaintiff-Appellee Mervyn Rapozo (Rapozo) and against Better Hearing, entered on November 11, 2005.

In February of 2004, Rapozo purchased hearing aids from Better Hearing which he alleged did not work properly. Approximately seven months after they were purchased, Rapozo attempted to return the hearing aids, requesting a full refund. Better Hearing refused to refund the purchase price.

On July 13, 2005, Rapozo filed a Complaint alleging that: (1) the hearing aids came with a one-year guarantee; (2) Rapozo returned the hearing aids for repair at least five times within the one-year period; (3) the hearing aids were out of service for over thirty days; (4) Better Hearing failed to comply with Hawaii Revised Statutes (HRS) § 481K-3 (Supp. 2007) (2) when it failed to accept the return of the hearing aids and make a refund; and (5) therefore, pursuant to HRS § 481K-5 (Supp. 2007), Rapoza was entitled to recover twice the amount of his pecuniary loss, costs, disbursements, and reasonable attorney's fees. After a one-day bench trial, judgment was entered in favor of Rapozo and against Better Hearing in the amount of $8,610.66, together with costs and reasonable attorney's fees. On appeal, Better Hearing contends, on several grounds, that Rapozo was not entitled to a refund under Hawai‘i's Assistive Technology Warranty Act, HRS Chapter 481K (Supp. 2007). For the reasons set forth below, we agree.  [footnote omitted]

Opinion [pdf]

OPINION OF THE COURT BY NAKAMURA, J.

Defendant-Appellant Mariann U. Vierra (Vierra) was sentenced as a persistent repeat offender of the offense of driving without a license (DWOL). Under HRS § 286-136(b) (Supp. 1996), "[a]ny person who is convicted" of DWOL is subject to an enhanced penalty "if the person has two or more prior convictions for the same offense in the preceding five[-]year period." This appeal turns on how to measure "the preceding five[-]year period" referred to in the statute. The pivotal question is: Should the statute be interpreted as measuring the preceding five-year period from the date the defendant committed the current DWOL offense or the date the defendant is sentenced on the current DWOL offense? We interpret the statute as measuring the five-year period based on the date the defendant committed the current DWOL offense. We therefore reject Vierra's argument that she did not have two or more prior DWOL convictions, and we affirm her sentences. [emphasis original]

Dissenting opinion by Foley, J. [pdf]

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendants-Appellants, Third-Party Plaintiffs-Appellants, Cross-Appellees, Pearl Pruett, Ikaika Pruett, and Meredith Pruett (collectively, "the Pruetts"), appeal from the Circuit Court of the First Circuit's ("circuit court's") October 18, 2004 final judgment partially in favor of Plaintiff-Appellee, Cross-Appellee, Allstate Insurance Company ("Allstate"). On appeal, the Pruetts assert that the circuit court erred when it determined that Allstate was not obligated to defend or indemnify Pearl and Ikaika Pruett under Allstate's homeowner's insurance policy naming Pearl Pruett as the named insured.

Both Allstate and Third-Party Defendant-Appellee, Cross-Appellant, AIG Hawaii Insurance Company ("AIG") (collectively, "the Insurers"), appeal from the circuit court's October 18, 2004 final judgment partially in favor of the Pruetts. On appeal, the Insurers present the following points of error: (1) the circuit court erred when it held that the Pruetts were entitled to coverage under the Insurers' automobile insurance policies; (2) the circuit court erred when it determined that the phrase "any person" as used in the automobile insurance policies was ambiguous; and (3) the circuit court erred when it determined that the Pruetts were entitled to recover costs and attorney's fees against the Insurers.

For the following reasons, we hold that the circuit court: (1) did not err when it determined that liability coverage was afforded to Meredith Pruett and Ikaika Pruett pursuant to the terms of AIG's automobile insurance policy, inasmuch as the manner in which the term "any person" was used in AIG's policy was ambiguous; (2) did not err when it determined that Personal Injury Protection ("PIP") coverage was afforded to Ikaika Pruett pursuant to the terms of Allstate's automobile insurance policy, inasmuch as the manner in which the term "any person" was used in Allstate's policy was ambiguous; (3) erred when it determined that Pearl Pruett and Ikaika Pruett were afforded liability coverage under Allstate's automobile insurance policy because any claim arising from the automobile accident would not arise out of the use of an "insured auto"; (4) abused its discretion in awarding costs and attorney's fees to the Pruetts because the circuit court did not order the Insurers to "pay benefits"; and (5) did not err when it determined that the Pruetts were excluded from coverage under the terms of Allstate's homeowner's insurance policy. Accordingly, we affirm in part and reverse in part the circuit court's October 18, 2004 final judgment. [footnote omitted]

Concurring and dissenting opinion by Acoba, J. [pdf]

OPINION OF THE COURT BY MOON, C.J.

On February 8, 2008, this court accepted a timely application for a writ of certiorari, filed by petitioner/defendant-appellant Anthony Kalani Akau on January 8, 2008, requesting this court review the Intermediate Court of Appeals' (ICA) October 11, 2007 judgment on appeal, entered pursuant to its September 21, 2007 summary disposition order (SDO).  Therein, the ICA affirmed the Circuit Court of the First Circuit's October 15, 2004 judgment, convicting Akau of, and sentencing him for, -- pursuant to his conditional guilty plea --  three counts of promotion a dangerous drug in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1242 (1993 & Supp. 2003).  Oral argument was held on March 6, 2008.

. . . .

As discussed more fully infra, we hold that the ICA erred in affirming the circuit court's denial of Akau's motion to dismiss.  Accordingly, we reverse the ICA's October 11, 2007 judgment on appeal and the circuit court's October 15, 2004 judgment of conviction in the drug buy case. [footnotes omitted]

OPINION OF THE COURT BY DUFFY, J.

Petitioner/Defendant-Appellant David H. Bayly seeks review of the October 11, 2007 judgment of the Intermediate Court of Appeals (ICA), which affirmed the district court of the second circuit's March 31, 2006 final judgment adjudging Bayly guilty of inattention to driving in violation of Hawai'i Revised Statutes (HRS) § 291-12 (Supp. 2006).  We accepted Bayly's application for a writ of certiorari and oral argument was held on April 17, 2008.

Bayly asserts that the ICA gravely erred in affirming his conviction because there was insufficient evidence to prove that he operated a vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property.

Based on the following, we reverse the ICA's judgment.  [footnote omitted]