Hawaii Appellate Opinions

UNITE HERE! LOCAL 5 v. CITY AND COUNTY OF HONOLULU

No. 28602 (May 22, 2009)

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Plaintiffs-Appellants Keep the North Shore Country (KNSC), a Hawai'i non-profit corporation, and Sierra Club, Hawai'i Chapter (Sierra Club), a foreign non-profit corporation, (collectively, Plaintiffs} appeal from the Amended Final Judgment filed on June 4, 2007 in the Circuit Court of the First Circuit (circuit court). The circuit court entered judgment in favor of Defendants-Appellees City and County of Honolulu (CCH); Henry Eng (Eng), Director of Department of Planning and Permitting (DPP), in his official capacity; and Kuilima Resort Company (Kuilima), a Hawai'i general partnership, (collectively, Defendants) and against Plaintiffs on all of Plaintiffs1 claims as set forth in their First Amended Complaint.

On appeal, Plaintiffs contend the circuit court erred in granting Kuilima's Third Motion for Summary Judgment and denying Plaintiffs' Motion for Summary Judgment.

. . .

Therefore, the Amended Final Judgment filed on June 4, 2007 in the Circuit Court of the First Circuit is affirmed.

Dissenting opinion by Nakamura, J. pdf

HAWAII MEDICAL SERVICE ASSOCIATION v. ADAMS

No. 28899 (May 21, 2009)

Opinion pdf

OPINION OF THE COURT BY FOLEY, J.

Respondent-Appellant-Appellant Hawaii Medical Service Association (HMSA) appeals from the Judgment filed on November 13, 2007 in the Circuit Court of the First Circuit (circuit court). The circuit court affirmed the "Findings of Fact, Conclusions of Law, Discussion and Order" (Discussion and Order) filed on April 18, 2007 with the State of Hawai'i Department of Commerce and Consumer Affairs (DCCA) Insurance Division by the DCCA Insurance Commissioner (the Commissioner), pursuant to Hawaii Revised Statutes (HRS) § 432E-6 (2005 Repl.), and signed by the Commissioner. In the Discussion and Order, a three-member external review panel (the Panel), appointed by the Commissioner, reversed HMSA's February 23, 2007 final determination, in which HMSA denied coverage of an allogeneic stem-cell transplant (allo-transplant) for Petitioner-Appellee-Appellee Brent Adams (Adams) to treat his multiple myeloma.

On appeal, HMSA contends the circuit court erred by (1) applying the "palpably erroneous" standard of review to the entirety of the Discussion and Order; (2) affirming the Panel's interpretation of HRS § 432E-1.4 (2005 Repl.) as requiring HMSA to have specifically identified allo-transplant "for treatment of multiple myeloma" in Chapter 6, "Services Not Covered," of its Preferred Provider Plan for the Hawai'i Employer-Union Health Benefits Trust Fund (the Plan) in order to specifically exclude coverage for such service; (3) concluding that the Panel could consider a study that had been unavailable to HMSA during HMSA's internal review in determining that HMSA had acted unreasonably in denying coverage for an allo-transplant under HRS § 432E-6(a)(7); and (4) affirming the Discussion and Order's conclusion that HMSA breached its implied covenant of good faith and fair dealing when it denied coverage for a lifesaving treatment on the basis that there was no scientific study proving the treatment was beneficial and refused to reconsider such denial when presented with a scientific study, published after the denial.

We vacate the Judgment and remand to the circuit court with instructions to reverse the Discussion and Order and enter judgment on behalf of HMSA.

STATE OF HAWAII v. KEKONA

No. 28634 (May 11, 2009)

Opinion pdf

OPINION OF THE COURT BY WATANABE, J.

Defendant-Appellant Francis K. Kekona (Kekona) appeals from the judgment entered by the Circuit Court of the First Circuit (circuit court) on June 4, 2007, convicting and sentencing him for attempted murder in the second degree in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 2008); carrying, using, or threatening to use a firearm in the commission of a separate felony in violation of HRS § 134-6(a) and (e) (Supp. 2005); ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes in violation of HRS § 134-7(b) and (h) (Supp. 2005); and place to keep pistol or revolver in violation of HRS § 134-6(c) and (e) (Supp. 2005).

Kekona contends that: (1) the circuit court erred when it granted the motion in limine filed by Plaintiff-Appellee State of Hawai‘i (State or prosecution) to prohibit him from introducing evidence of alleged acts of prior physical abuse of Kekona's girlfriend, Tammy Antonio (Antonio), by Sargent Ah Loo (Ah Loo), with whom Antonio had three children (motion in limine); (2) the circuit court erred when it overruled his trial counsel's objection to the State's closing statement that Kekona's self-defense argument could be rejected if the jury believed that Kekona had shot at Ah Loo with the intent to scare Ah Loo; and (3) the State committed seven separate acts of misconduct that cumulatively deprived him of his right to a fair trial.

We vacate the judgment and remand this case for a new trial. [footnotes omitted]

STATE OF HAWAII v. MARK

No. 26784 (May 8, 2009)

Opinion pdf

OPINION OF THE COURT BY RECKENWALD, C.J.

On March 4, 2003, Honolulu police received a tip concerning Defendant-Appellant Shane Mark. The caller reported that Mark would be at the Baskin-Robbins ice cream parlor in the Kapolei Shopping Center at about noon. Mark was wanted on a warrant in connection with a February 1, 2003 incident in which he allegedly shot Denny Paikai in the leg, and fired shots at John Piko.

A team of plainclothes Honolulu police officers, including Officer Glenn Gaspar, went to the Baskin-Robbins to arrest Mark. Officer Gaspar and Officer Calvin Sung approached Mark and attempted to place him under arrest. A struggle ensued and Mark, who was armed, fired three shots. Officer Gaspar was fatally wounded. Other officers assisted Officer Sung in subduing Mark, and placed him under arrest.

Two indictments were returned against Mark. In Criminal No. 03-1-04 95 (Mark I), Mark was charged with the attempted murder in the second degree of Piko (Count I) and Paikai (Count II), in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 1996); carrying, using, or threatening to use a firearm in the commission of a separate felony in connection with the attempted murder of Piko (Count III) and Paikai (Count IV), in violation of HRS § 134-6(a) and (e) (Supp. 1999); and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (2004) (Count V).

In Criminal No. 03-1-0496 (Mark II). Mark was charged with the murder in the first degree of Officer Gaspar, in violation of HRS §§ 707-701(1) (b) (1993 & Supp. 2001) and 706-656 (Count I); the attempted murder in the first degree of Officer Sung, in violation of HRS §§ 705-500 and 707-701(1) (a) (Count II); carrying, using, or threatening to use a firearm in the commission of a separate felony, in connection with the murder of Officer Gaspar, in violation of HRS § 134-6(a) and (e) (Count III); possession prohibited of any firearm by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (Count IV); promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp. 2002) (Count V); and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (Count VI).

The Circuit Court of the First Circuit (circuit court) consolidated the cases at Mark's request, and they were tried to a jury in December 2003.2 On December 22, 2003, the jury returned a verdict on some of the counts. The jury found Mark guilty of murder in the second degree of Officer Gaspar, rather than the charged offense of murder in the first degree (Mark II, Count I). The jury also found him guilty on Count III in Mark II. and Counts II and IV in Mark I.

The jury was unable to reach a unanimous verdict as to the charges relating to Piko and Officer Sung. The circuit court declared a mistrial and delayed sentencing until after a retrial. A second trial was held in July 2004. The jury found Mark guilty of the attempted assault in the first degree of Officer Sung, rather than the charged offense of attempted murder in the first degree (Mark II, Count II), but was unable to reach a verdict as to the charges relating to Piko (Mark I. Counts I and III). The circuit court then dismissed those charges.

At sentencing, the State of Hawai'i (State) moved for extended terms of imprisonment. The circuit court denied the motion with regard to the counts of conviction in Mark I. but granted it with regard to the counts of conviction in Mark II, finding that Mark was a persistent and multiple offender and that extended terms of imprisonment were necessary for the protection of the public. Accordingly, the circuit court sentenced Mark to an extended term of imprisonment of life without the possibility of parole for Count I in Mark II, rather than the term of life with the possibility of parole that would otherwise apply to a second degree murder conviction. See HRS § 706-661 (Supp. 2003). The court also imposed extended terms of imprisonment on the other counts of conviction in Mark II.

Mark now appeals from the judgments entered on August 2, 2004 in both cases. On appeal, Mark advances a number of grounds for reversing or vacating his convictions. He argues that the circuit court erred by (1) granting in part the Honolulu Police Department's (HPD) motion to quash a subpoena for certain Internal Affairs Division records; (2) admitting a slow motion version of a videotape taken during the incident at the Baskin-Robbins and refusing Mark's proposed jury instructions on the videotape; (3) incorrectly instructing the jury on the justification of defense of others in the first and second trials; (4) referring the jury back to the court's instructions in response to a communication during deliberations in the first trial; (5) denying his motion for mistrial and his counsel's motion to withdraw during the second trial after it was discovered that the Office of the Public Defender (OPD) had represented Piko; and (6) denying his motion for a mistrial after it was discovered during the second trial that Piko believed that he had made a deal with the State in exchange for his testimony in the first trial, and after a juror received an anonymous voice mail which suggested that the juror should "watch [her] back." Mark further argues that he was denied a fair trial and impartial jury in the first trial based on factors including prejudicial publicity and the prosecutor's questioning of witnesses during trial, and that there was insufficient evidence to convict him of the attempted assault in the first degree of Officer Sung in the second trial.

For the reasons set forth below, we conclude that Mark's contentions are without merit, and accordingly, we affirm all of his convictions. [footnotes omitted]

STATE OF HAWAII v. BEREDAY

No. 28369 (May 7, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAMURA, J.

Defendant-Appellant Mariko Davis Bereday (Bereday) appeals from two December 18, 2006, Judgments entered by the District Court of the First Circuit (district court). Bereday was orally charged with two counts of negligent failure to control a dangerous dog, in violation of the Revised Ordinances Of Honolulu (ROH) § 7-7.2 {1990 & Supp. No. 7, 8-05 & Supp. No. 12, 2-08). The charges were based on allegations that Bereday negligently failed to prevent her dog, a Rottweiler named "Bobo," from attacking and biting a two-year-old boy and a five-year-old girl in separate incidents on May 8, 2005, and May 13, 2005, at a beach in Kahala.

After a bench trial, Bereday was found guilty as charged on both counts. With respect to the May 8th offense (Case No. 1P105-07481), the district court sentenced Bereday to six months of probation, with the condition that she perform 100 hours of community service, and ordered her to pay a $2,000 fine. The district court further ordered the humane destruction of Bobo. With respect to the May 13th offense (Case No. 1P105-07480), the district court sentenced Bereday to six months of probation, with the conditions that she serve five days in jail and perform 200 hours of community service, and ordered her to pay a $2,000 fine. The district court stayed Bereday's sentence pending appeal.

On appeal, Bereday argues that: 1) the City and County of Honolulu (the City) lacked enforcement jurisdiction over her offenses; 2) there was insufficient evidence to support her convictions; 3) ROH § 7-7.2(a), the ordinance under which she was convicted, is unconstitutionally vague and ambiguous; 4) the district court erred in denying her motion to sever the charges; and 5) the district court's imposition of a jail sentence and ordering the destruction of Bobo were unduly harsh and constituted an abuse of discretion.

For the reasons set forth in greater detail below, we Conclude that Bereday's first four arguments are without merit, and we therefore affirm her convictions. With respect to Bereday's sentencing claims, we conclude that for Bereday's May 13th offense, the district court was authorized to impose either a term of probation or imprisonment, but not both. The district court therefore erred in ordering Bereday to serve five days in jail as a condition of her six-month term of probation. We vacate Bereday's sentence on the May 13th offense and remand the case for resentencing on that offense. During the pendency of this appeal, we received notice that Bobo had died of natural causes. Thus, Bereday's claim that the district court erred in ordering the humane destruction of Bobo is moot. We affirm Bereday's sentence on the May 8th offense. [footnotes omitted]