Hawaii Appellate Opinions

STATE OF HAWAI'I v. JESS

No. 28483 (March 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On October 6, 2004, the defendant-appellee Brian Jess filed a 28 U.S.C. § 2254 (1996) petition for a writ of habeas corpus in the United States District Court for the District of Hawai'i.  In his petition, Jess alleged that the extended term sentence that the circuit court of the first circuit, the Honorable Victoria S. Marks presiding, imposed upon him on May 7, 2001, pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661  (Supp. 1999), 706-662(1), 706-662(4)(a) (Supp. 1996), and 706-664 (1993) was, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, in violation of his right to a jury trial as provided by the sixth amendment to the United States Constitution.  See Jess v. Peyton, No. Civ. 04-00601 JMS/BMK, 2007 WL 1041737, at *1-*2 (D. Haw. April 18, 2006) (Jess II). On April 18, 2006, the United States District Court granted Jess' petition, concluding that the finding made by the circuit court, i.e., that an extended term was necessary for the protection of the public [hereinafter, "the necessity finding"], violated his sixth amendment right to a trial by jury as articulated in  Apprendi.  Id. at *4.  The district court ordered the circuit court to resentence Jess in a manner consistent with that conclusion.  Id. at *6.  The reserved question before this court stems, ultimately, from that order, and reads as follows:

May the trial court, as part of a sentencing proceeding brought pursuant to Section 706-662(1) & (4), H.R.S., empanel a jury to make a factual finding to determine whether the prosecution has proven beyond a reasonable doubt that the defendant's commitment for an extended term of incarceration is necessary for the protection of the public?

The issue raised by the reserved question was addressed in part in our recent decision in State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), [hereinafter "Maugaotega II"].  Based upon Magaotega II and the analysis infra, we answer the reserved question as follows:

Although the two-count complaint filed by the prosecution on March 2, 2000 against the defendant-appellee Brian Jess did not charge the "aggravated crimes" described in HRS § 706-662, see Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 864 (2007), the circuit court nevertheless has authority to impose extended terms of imprisonment upon Jess pursuant to the provisions  of HRS § 706-662, because our decision to require the allegation of aggravating extrinsic facts in a charging instrument applies prospectively only.  Furthermore, insofar as the circuit court possesses the inherent judicial authority "to provide process where none exists," State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 711012 (1982), and the legislature, by amending Hawaii's extended term sentencing laws to include jury fact-finding, has clearly expressed its approval of a jury system for making the required findings in order to bring the extended sentencing procedures into compliance with Cunningham, the circuit court would act within its discretion if, pursuant to HRS §§ 706-662(1) and 706-662(4) (Supp. 1996), it empaneled a jury to make a factual finding as to whether the prosecution has proved beyond a reasonable doubt that a defendant's commitment for an extended term or terms of imprisonment is necessary for the protection of the public.  Finally, in light of the plain language of Act 1, see supra notes 306, and the remedial nature of its amendments, the circuit court can also empanel a jury to make the same factual finding with respect to a defendant pursuant to HRS §§ 706-662, as amended by Act. 1.

[footnotes omitted]

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

PEROUTKA v. CRONIN

No. 27233 (March 27, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Appellants Michael A. Peroutka, Chuck Baldwin ("Peroutka/Baldwin"), David P. Porter ("Porter"), and Ralph Nader, Peter Miguel Camejo ("Nader/Camejo"), and Robert H. Stiver ("Stiver") (collectively, "Appellants"), appeal from the first circuit court's April 5, 2005 final judgments in favor of Appellee, Kevin B. Cronin ("Chief Election Officer").  The instant case is a consolidated secondary appeal from the circuit court's April 5, 2005 judgments affirming the decisions of the Chief Elections Officer.  On appeal, Appellants present the following points of error: (1) the circuit court erred in determining that the procedures used in verifying signatures on Appellants nomination petitions are not unconstitutional; (2) the circuit court erred in determining that the review of Appellants' petitions by the Chief Elections Officer was not arbitrary or capricious; and (3) the circuit court erred in determining that Appellants were provided a fair administrative hearing.  For the reasons that follow, we affirm the circuit court's April 4, 2005 final judgments. [footnote omitted]

KAHO'OHANOHANO v. DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAII

No. 28324 (March 20, 2008)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Following a sixteen-day bench trial, defendants-appellants Department of Human Services (DHS) and State of Hawai'i (State) [hereinafter, collectively, DHS or the State] appeal from the Circuit Court of the Second Circuit's January 22, 2007 second amended judgment, entered in favor of plaintiff-appellees George Kaho'ohanohano (George), as next friend of his minor granddaughter, Dasia Marie Morales-Kaho'ohanohano (Minor), and Jarrett K. Kaho'ohanohano (Jarrett), individually as Minor's natural father, [hereinafter, collectively, the Kaho'ohanhanos] in this negligence action, awarding them $243,071.39 in special damages, $800,000.00 in general damages, and $77,369.80 in costs, for a total of $1,120,441.10.  Upon application by the Kaho'ohanohanos, the case was transferred to this court, pursuant to Hawai'i Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2007) (governing transfer upon the ground that the case involves "question of first impression or a novel legal question"), on November 15, 2007.  Oral argument was held on February 21, 2008.

Briefly stated, two-and-a-half year old Minor suffered a fracture of the left femur on February 14, 2001 and life-threatening abdominal injuries two months later on April 16, 2001.  Both injuries allegedly occurred while Minor was in the care and physical custody of her natural mother, defendant Denise Morales (Denise), and Denise's then-boyfriend, defendant Daryl Ramos (Daryl).  Denise and Jarrett shared joint physical custody of Minor, who stayed with each parent on a rotating weekly basis.  Although the first injury was reported to DHS as a suspected child abuse case, DHS allowed Denise to continue her joint custody arrangement with Jarrett while DHS investigated the circumstances of Minor's injury.  DHS had yet to complete its investigation when the second injury occurred, which was determined to have resulted from child abuse.  Ultimately, Jarrett obtained sole legal and physical custody of Minor.

. . .

After a lengthy bench trial, the trial court found in favor of the Kaho'ohanohanos . . . The trial court also found DHS liable for damages resulting from the negligent infliction of emotional distress (NIED). 

. . . .

For the reasons more fully discussed infra, we affirm the trial court's January 22, 2007 second amended judgment.  [footnotes omitted]

Concurring opinion by Levinson, J. [pdf]; concurring opinion by Acoba, J. [pdf]

STATE OF HAWAI'I v. MAINAAUPO

No. 27764 (March 5, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On December 7, 2007, the defendant-appellant-petitioner Mark K. Lopez filed an application for a writ of certiorari, urging us to review the memorandum opinion (mem. op.) of the Intermediate Court of Appeals (ICA) in State v. Lopez, No. 27969 [hereinafter, "ICA's Lopez mem. op."], and, on December 11, 2007, the defendant-appellant-petitioner William Mainaaupo, Jr., filed an application for a writ of certiorari, asking us to review the ICA's memorandum opinion in State v. Mainaaupo, No. 27764 [hereinafter, "ICA's Mainaaupo mem. op."].  Although these cases are factually unrelated, they share a common legal question:  Whether the ICA erred in concluding that the circuit court of the first circuit correctly declines to instruct the jury on the mistake-of-fact defense, as provided by Hawai'i Revised Statutes (HRS) § 702-218 (1993), in relation to charges of the offense of unauthorized control of a propelled vehicle, in violation of HRS § 708-836 (Supp. 2001), where the defendant claims a mistaken belief that the person who authorized his use of the vehicle was the registered owner of the vehicle.  Beyond this shared issue, Mainaaupo argues that the ICA gravely erred in concluding that the circuit court correctly instructed the jury that, under HRS § 708-836, the defendant had a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle.  And Lopez contends that the ICA gravely erred in concluding that the remarks made during closing argument by the plaintiff-appellee-respondent State of Hawai'i [hereinafter, "the prosecution"] regarded Lopez's post-arrest silence and his failure to produce a critical defense witness to corroborate his testimony were legitimate comment on the evidence and not misconduct.  We accepted Lopez's and Mainaaupo's applications on January 18, 2008 and consolidated the cases for disposition the same day.

. . . .

Accordingly, we vacate the judgments against Lopez and Mainaaupo and remand their cases for new trials.  [footnotes omitted]

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

STATE OF HAWAI'I v. GOMES

No. 27906 (February 20, 2008)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Keith Daniels Gomes (Petitioner) filed an application for writ of certiorari on October 31, 2007, seeking review of the judgment of the Intermediate Court of Appeals (ICA) filed on August 2, 2007, pursuant to its Summary Disposition Order (SDO) filed on July 11, 2007, affirming the March 28, 2006 judgment of the first circuit court (the court) in Cr. No. 05-1-1181, convicting Petitioner of bribery of a Witness, Hawai'i Revised Statutes (HRS)  § 710-1070 (1993), and sentencing him to five years' imprisonment.  We hold that the ICA erred in affirming the court's denial of Petitioner's motions for judgment of acquittal of the charge of bribery under HRS §  710-1070(1)(b) because even in viewing the evidence in the light most favorable to the prosecution, substantial evidence did not exist to support the jury's finding that Petitioner offered money to a potential witness with the intent to induce her to avoid service of process. [footnotes omitted]

Dissenting opinion by by Nakamura, J. [pdf]

FLORES v. THE RAWLINGS COMPANY, LLC

February 1, 2008 (No. 28124)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Defendant-Appellant The Rawlings Co., LLC [hereinafter, Rawlings], appeals from the August 1, 2006 interlocutory order of the circuit court of the first circuit, denying Rawlings's motion for summary judgment in this action initiated by Plaintiffs-Appellees Albert Flores and Donald Rapoza [hereinafter, collectively, Plaintiffs] against Rawlings. The case was subsequently transferred to this court pursuant to Hawai‘i Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2006).

Although the heart of Plaintiffs' claim is that Rawlings violated the registration requirement for collection agencies under HRS § 443B-3(a) (1993), this appeal also concerns two threshold issues regarding whether Plaintiffs may bring this claim: (1) whether Plaintiffs have established injury within the meaning of HRS § 480-13 (Supp. 2004), and (2) whether Plaintiffs are "consumers" within the meaning of HRS § 480-13. The circuit court, in denying Rawlings's motion for summary judgment, found that these prerequisites for bringing suit had been met and that Rawlings was subject to the registration requirement of HRS § 443B-3(a).

On appeal, Rawlings argues that: (1) the circuit court erred in ruling that Plaintiffs' respective payments of what Rawlings terms "valid obligations" constituted "actual injury" sufficient to give them standing to bring suit; (2) the circuit court erred in ruling that Plaintiffs were "consumers" under HRS chapter 480, because the transaction involving Rawlings was a recovery of subrogation/reimbursement claims arising from tort rather than a consumer transaction concerning the delivery of medical services; and (3) the circuit court erred in ruling that Rawlings was recovering "debts" within the meaning of HRS chapter 443B, such that it was a "collection agency" subject to that chapter.

Based on the following, we vacate the circuit court's interlocutory order and remand to the circuit court to enter an order granting summary judgment in favor of Rawlings. [footnote omitted]

STATE OF HAWAI'I v. FETELEE

January 31, 2008 (No. 27482)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On August 29, 2007, this court accepted a timely application for a writ of certiorari, filed by petitioner/defendant-appellant Faa P. Fetelee on July 17, 2007, requesting that this court review the May 17, 2007 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its April 18, 2007 published opinion in State v. Fetelee, 114 Hawai'i 151, 157 P.3d 590 (App. 2007).

. . . .

In light of our pronouncement today, we are compelled to vacate the ICA's May 17, 2007 judgment on appeal and the trial court's August 3, 2005 judgment of conviction and sentence, and remand the case to the trial court for a new trial consistent with this opinion.

Concurring opinion by Nakamura, J. [pdf]

OFFICE OF HAWAIIAN AFFAIRS v. HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI'I (HCDCH)

January 31, 2008 (No. 25570)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Two sets of plaintiffs-appellants -- (1) the Office of Hawaiian Affairs (OHA) and its Board of Trustees [hereinafter, collectively, the OHA plaintiffs] and (2) Pia Thomas Aluli, Jonathan Kamakawiwo'ole Osorio, Charles Ka'ai'ai, and Keoki Maka Kamaka Ki'ili [hereinafter, collectively, the individual plaintiff and, together with the OHA plaintiffs, collectively, the plaintiffs] appeal from the Circuit Court of the First Circuit's January 31, 2003 final judgment, entered pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b) (2007).  Following a jury-waived trial, the trial court found in favor of defendants-appellees State of Hawai'i (State), the Housing and Community Development Corporation of Hawai'i, and the executive director and members of the board of directors of the HCDCH, as well as Linda Lingle, in her capacity as Governor of the State [hereinafter, collectively, the defendants] and against the plaintiffs.

. . . .

For the reasons discussed, infra, we vacate the January 31, 2003 judgment and remand this case to the circuit court with instructions to issue an order granting the plaintiffs' request for an injunction against the defendants from selling or otherwise transferring to third parties (1) the parcel of ceded land on Maui and (2) any ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded land has been resolved. [footnotes omitted]

STATE OF HAWAI'I v. ESPIRITU

January 28, 2008 (No. 27354)

Opinion [pdf]

OPINION OF THE COURT BY ACOBA, J.

Petitioner/Defendant-Appellant Christopher K. Espiritu (Petitioner) filed an application for writ of certiorari on October 3, 2007, seeking review of the judgment of the Intermediate Court of Appeals (the ICA) filed on July 5, 2007, pursuant to its May 31, 2007 Summary Disposition Order (SDO) affirming the May 18, 2005 judgment of the Circuit Court of the Second Circuit (the court) convicting Petitioner of attempted murder in the second degree (Count 1), carrying or use of a firearm in the commission of a separate felony (Count 2) (Cr. No. 03-1-0635), and place to keep firearm (Count 3) (Cr. No. 02-1-0666), and sentencing him to concurrent terms of life imprisonment with the possibility of parole on Count 1, twenty years on Count 2, and ten years on Count 3. Respondent/Plaintiff-Appellee State of Hawai‘i (Respondent) did not file a memorandum in opposition. For the reasons stated herein, we affirm the ICA judgment in part, vacate the judgment in part, vacate the court's judgment in part, and remand for a new trial as to Counts 1 and 2. See supra note 3. [footnotes omitted]

Dissenting opinion by Nakayama, J. [pdf]

KAMAKA v. GOODSILL ANDERSON QUINN & STIFEL

January 24, 2008 (No. 26308)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Following a jury trial, plaintiff-appellant/cross-appellee Kitty Kamaka appeals -- and defendant-appellee/cross appellant Goodsill Anderson Quinn & Stifel (Goodsill) cross appeals -- from the Circuit Court of the First Circuit's December 24, 2003 final judgment entered in favor of Goodsill against Kamaka in this wrongful termination case, as well as the December 24, 2003 order awarding attorneys' fees and costs in favor of Goodsill. 

. . . .

For the reasons discussed more fully infra, we affirm the trial court's December 24, 2003 f(1) final judgment and (2) order granting Goodsill's attorneys' fees and costs.  If this court agrees, Goodsill's cross-appeal need not be addressed. [footnote omitted]