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Oral Arguments Schedule

No. SCWC-16-0000673 Thursday, January 31, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. RINALDO J. TORRES, JR., Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

Emmanuel G. Guerrero of the Law Offices of Emmanuel G. Guerrero, LLLC

Attorney for appellee:

Brandon H. Ito, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 11/20/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

On August 27, 2014, a grand jury indicted Rinaldo J. Torres, Jr., on one count of robbery in the first degree and one count of terroristic threatening in the first degree. Before the trial began, Torres submitted a form to the circuit court stating he wished to proceed by a bench trial. The circuit court engaged in a colloquy with Torres regarding the waiver of his right to a jury trial. During the colloquy, the court explained the rights that Torres would be giving up by not having a jury trial. The court, however, did not ask Torres whether his decision to give up his right to a jury trial was voluntary or if anyone had influenced his decision to relinquish his jury trial right. Based on Torres’s responses, the court found that he had knowingly, intelligently, and voluntarily waived his right to a jury trial.

Also, prior to the start of trial, and at the close of the State’s evidence, the court did not advise Torres of his right to testify or not to testify. Torres elected to testify. At the conclusion of trial, the court found Torres guilty on both counts.

Torres appealed his conviction to the Intermediate Court of Appeals (ICA) and argued that the circuit court erred by (1) failing to provide a pre-trial advisement regarding his right not to testify; and (2) finding that the waiver of his right to a jury trial was voluntary. The ICA held that although the circuit court erred by not advising Torres of his right not to testify, he was not prejudiced by the error because his testimony was essential to the defense that he presented at trial. The ICA also held that the circuit court did not err in finding that Torres’s waiver of his right to a jury trial was voluntary.

In his application for a writ of certiorari, Torres asserts that the ICA erred in holding that he voluntarily waived his right to a jury trial and that he was not prejudiced by the lack of a pre-trial advisement.

Supreme
Court

No. SCWC-17-0000226, Thursday, January 31, 2019, 11:15 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. PATRICK WILLIAMS, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

Taryn R. Tomasa, Deputy Public Defender

Attorney for appellee:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 11/28/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

This case concerns whether Petitioner/Defendant-Appellant Patrick Williams’s (“Williams[’s]”) conviction of Assault in the Third Degree in violation of Hawai i Revised Statutes (“HRS”) § 707-712 (2014), should be vacated. Williams’s two-year old son, over whom he had sole custody, was treated at Wahiawa General Hospital for a fractured left femur. During opening statement, the State included the following comments:

[Y]ou will find out that [Williams’s son] is subsequently transferred to another family and reunited with his mother.

You’ll meet Detective Melvin Raquedan, who assists with the transfer of custody. You’ll also meet social worker Robert Asato, who aids in the transfer from Tripler Army Medical Center after [Williams’s son] is treated and released and how he is ultimately reunited down the road with his mother.
 
Williams did not object to these comments at any time during trial and the court did not sua sponte strike them. The court instructed the jury both before opening statements and after the close of evidence that statements or arguments made by lawyers are not evidence.

At trial, the State sought to admit two x-rays as State’s Exhibits 3 and 4. The prosecutor handed “State’s Exhibit 3” to the diagnostic radiologist, and asked him to verify that the name, date of birth, and date of the image were “in line” with the reports he had reviewed regarding Williams’s son. The doctor agreed that “[t]hey appear[ed] to correlate.” The doctor described “State’s Exhibit 3” as showing a left femur after it had been realigned by a physician. Although the doctor did not testify that the image was of the son’s left femur fracture, he did state that it “look[ed] [like a] fair and accurate” depiction of the son’s fracture. State’s Exhibit 3 was admitted into evidence over an objection that there was a lack of proper foundation. State’s Exhibit 4, a lateral view x-ray of a left femur that had been realigned, was also admitted over the same objection.

The Intermediate Court of Appeals (“ICA”) applied a plain error analysis to the prosecutor’s comments that the mother now had custody of Williams’s son, concluding that the circuit court’s jury instructions were adequate and that the comments were harmless beyond a reasonable doubt. The ICA also affirmed the circuit court’s evidentiary rulings regarding the admission of x-rays regardless of the State’s improper foundation, concluding that such error was harmless beyond a reasonable doubt. Further, the ICA concluded that there was sufficient evidence for a jury to conclude that Williams had recklessly caused bodily injury to his son.

Williams timely applied for a writ of certiorari on October 12, 2018 reasserting the same three issues previously raised to the ICA:

Whether the ICA gravely erred in holding that: (1) the prosecutor’s improper comments constituted harmless error; (2) the circuit court did not err in admitting the x-rays into evidence without the improper [sic] foundation; and (3) there was sufficient evidence to sustain Williams’s conviction.

Supreme
Court

No. SCAP-17-0000707 Thursday, February 21, 2019, 8:45 a.m.

STATE OF HAWAII, Plaintiff-Appellee, vs. DAVID M. SHEFFIELD, Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliiolani Hale
417 South King Street
Honolulu, HI 96813

Attorney for Appellant:

Matthew S. Kohm

Attorney for Appellee:

Richard K. Minatoya, Deputy Prosecuting Attorney

NOTE: Order granting Application for Transfer, filed 08/07/18.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

Brief Description:

The facts in this case are as follows: David M. Sheffield, a stranger to the complaining witness, allegedly followed her, stated that he wanted to beat her up and have sex with her, pulled a loop on her backpack, and dragged her backwards about five or ten steps before she broke free. Sheffield was charged with one count of kidnapping and one count of third degree assault. The third degree assault count was dismissed before trial. Sheffield was tried and found guilty on the kidnapping count. He now appeals, and this court has accepted transfer of the appeal from the ICA. On appeal, Sheffield argues that, when kidnapping is the only count tried, the State must prove the defendant used a greater degree of “restraint” than that incidentally used to commit the underlying (but here, untried and dismissed) offense. He also argues the jury should have been so instructed. Sheffield asserts that the act of pulling the loop on the complaining witness’s backpack and dragging her backwards five to ten steps, was insufficient evidence of “restraint” to support the kidnapping conviction. He asks this court to reverse his conviction, or, in the alternative, to vacate his conviction and remand this case to the trial court for further proceedings.

Supreme
Court

No. SCWC-14-0001030, Thursday, February 21, 2019, 10:00 a.m.

ESTATE OF ROBERT FREY, Petitioner/Plaintiff-Appellant, vs. ROBERT P. MASTROIANNI, M.D., Respondent/Defendant-Appellee. 

Supreme Court Courtroom
Ali iolani Hale
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

Anthony Ranken and Samuel P. Shnider of Anthony Ranken & Associates

Attorneys for Respondent:

Thomas E. Cook and Bradford F. K. Bliss of Lyons, Brandt, Cook & Hiramatsu

NOTE: Order granting Application for Writ of Certiorari, filed 11/29/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

On June 13, 2004, Robert Frey was discharged from Maui Memorial Medical Center by Dr. Robert Mastroianni. He was readmitted to the hospital less than 24 hours later and died of pneumonia on June 15, 2004. Frey’s Estate brought a claim before the Medical Claims Conciliation Panel (“MCCP,” now renamed the Medical Inquiries and Conciliation Panel), claiming that his death was the result of Dr. Mastroianni’s negligence and alleging that if Dr. Mastroianni had followed a certain course of treatment and kept Frey in the hospital for further observation and treatment, “it is likely that he would have survived.” The MCCP decided in favor of the Estate, but Dr. Mastroianni chose not to pay the award.

The Estate then filed a medical malpractice complaint against Dr. Mastroianni in the Circuit Court of the Second Circuit, alleging that Dr. Mastroianni’s negligence caused Frey’s death or, in the alternative, deprived him of a significant improvement in his chances for recovery. At trial, after the Estate presented its evidence, including testimony from three expert witnesses, Dr. Mastroianni moved for, and was granted, judgment as a matter of law. The circuit court held that whether or not Hawaii recognizes a separate “loss of chance” claim, the court lacked subject matter jurisdiction over the claim because the Estate failed to raise it before the MCCP. And it held that the Estate could not establish its wrongful death claim because none of the Estate’s experts opined to a reasonable degree of medical probability as to whether Dr. Mastroianni’s care and treatment of Frey caused his death. On appeal, the Intermediate Court of Appeals (“ICA”) held that “the loss of chance doctrine is consistent with Hawai i law and should be recognized as a separate compensable injury in circumstances such as this case.” But it went on to affirm the circuit court’s judgment as to both its lack of jurisdiction over the loss of chance claim and the Estate’s failure to provide sufficient evidence to establish causation. The Estate then filed an application for writ of certiorari with the supreme court, which was granted on November 29, 2018.

In its application for writ of certiorari, the Estate presented two questions. The first question was whether it was error for the ICA to affirm the circuit court’s order granting judgment as a matter of law on the loss of chance claim because it was not properly asserted before the MCCP. The second question was whether it was error for the ICA to affirm the circuit court’s order on the basis that the Estate had failed to establish causation. The Estate argues that the statute establishing the MCCP is not a jurisdictional bar to its claim, and that its evidence was sufficient for a jury to find in its favor on the issue of causation.

Supreme
Court

No. SCWC-17-0000055, Thursday, February 21, 2019, 11:15 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. STEVEN E. YOUNG, Petitioner/Defendant-Appellant.

Supreme Court Courtroom
Ali iolani Hale
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Shawn A. Luiz

Attorney for Respondent:

Kevin K. Takata, Supervising Deputy Attorney General

NOTE: Order accepting Application for Writ of Certiorari, filed 11/23/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Petitioner/Defendant-Appellant Steven E. Young (Young) was convicted of sexual assault charges in 2000. Certain sections of Hawaii Revised Statutes (HRS) Chapter 846E required Young to periodically report in as a sex offender after his 2013 release from prison.

In 2016, after a moped traffic stop, Young was charged with Promotion of a Dangerous Substance in the Third Degree and Prohibited Acts Relating to Drug Paraphernalia.  Young was convicted on these charges after a jury trial. Young was also charged with Failure to Comply with Covered Offender Registration Requirements in violation of HRS §§ 846E-9(a)(2) & (c) (2014), and HRS §§ 846E-9(a)(12) & (c) (2014), and pled no contest to these charges. His plea was not conditioned on his ability to appeal. The court ordered a pre-sentence investigation before sentencing, and sentenced Young to four years of HOPE probation with conditions of one year of confinement with credit for time served and participation in the Hawaii Sex Offender Treatment Program.

Young appealed his sentence to the ICA. The ICA affirmed the circuit court’s sentence, holding that Young’s no contest plea precluded him from challenging the constitutionality of HRS Chapter 846E. The ICA further held that the circuit court did not abuse its discretion in sentencing Young.

In his application for writ of certiorari, Young raises two points. First, he argues the ICA gravely erred in affirming the circuit court’s judgment of guilt, because his conviction under HRS Chapter 846E violates his right to equal protection.  He argues the sex offender registration requirement is not rationally related to a legitimate state interest, because it is alternatively overinclusive (for including offenders like Young, who argues he is not a danger to the public) and underinclusive (for excluding other kinds of offenders, such as robbers, kidnappers, or murderers). Second, he argues the ICA gravely erred in failing to hold that the circuit court abused its discretion in sentencing him. Young asserts that he should have been sentenced only to probation. He also argues that the circuit court abused its discretion in ordering him to complete sex offender treatment as a condition of his probation, because the sentence resulted from his conviction of a non-sex crime.

Supreme
Court

No. SCWC-16-0000793, Thursday, March 7, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. KIMBERLY J. UDO, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

William H. Jameson, Jr., Deputy Public Defender

Attorneys for appellee:

Brandon H. Ito and Sonja P. McCullen, Deputy Prosecuting Attorneys

NOTE: Order accepting Application for Writ of Certiorari, filed 12/04/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.
Brief Description:

On July 23, 2014, a grand jury indicted Kimberly J. Udo (“Udo”) with the offense of murder in the second degree. The indictment stemmed from an incident occurring in the early morning hours of July 21, 2014 during which the State of Hawaii (“State”) alleged Udo knowingly or intentionally killed Sandra Wollaston (“Wollaston”).

A jury trial was held in the Circuit Court of the First Circuit (“circuit court”). Udo presented only one witness, Dr. James Navin (“Dr. Navin”), who testified as a medical expert that Wollaston’s death was likely caused by a heart attack. On cross-examination, the trial Deputy Prosecuting Attorney (“DPA”) questioned Dr. Navin about his testimony for other defendants in two murder cases, State v. Lankford, 2011 WL 1836716 (Haw. App. May 13, 2011) (SDO) (“Lankford”) and State v. Higa, 126 Hawaii 247, 269 P.3d 782 (App. 2012) (“Higa”). The DPA’s cross-examination (1) insinuated that in Lankford, Dr. Navin failed to corroborate the facts posed to him by the “accused murderer,” and (2) questioned whether Dr. Navin’s purpose of testifying in Higa “was to say that the defendant, Matthew Higa, couldn’t possibly be guilty of murder because the baby he threw off the overpass was already dead when it hit the pavement[.]” In closing argument, the State again referenced Dr. Navin’s testimony in those cases. Udo’s counsel did not object to the cross-examination or the closing argument statements. The jury returned a unanimous verdict finding Udo guilty of the offense of manslaughter for recklessly causing the death of another person. On September 14, 2016, the circuit court sentenced Udo to an indeterminate term of twenty years of incarceration. Udo timely appealed her Conviction and Sentence to the Intermediate Court of Appeals (“ICA”).

On appeal, Udo contended the DPA engaged in multiple instances of prosecutorial misconduct during the jury trial, including inflaming the passions of the jury by cross-examining Dr. Navin about his testimony in Lankford and Higa, and again making statements about Dr. Navin’s testimony in those cases in closing argument. Udo also argued she received ineffective assistance of counsel depriving her of her right to a fair trial due to her counsel’s failure to object to the Lankford and Higa questioning and remarks.

The ICA affirmed the circuit court’s conviction and sentencing of Udo, holding in pertinent part the cross-examination about Dr. Navin’s testimony in Lankford and Higa was not improper because it was (1) relevant to establishing Dr. Navin’s defense bias, and (2) did not “rise to the level of misconduct in [State v.] Rogan,” 91 Hawai i 405, 984 P.2d 1231 (1999), another prosecutorial misconduct case. The ICA also held the DPA’s closing statements about Lankford and Higa were within the bounds of reasonable inference that a prosecutor may draw. The ICA also held Udo received effective assistance of counsel.

Udo timely applied for a writ of certiorari to this court. In her application, Udo alleges the ICA gravely erred in holding the DPA did not commit prosecutorial misconduct through his cross-examination and closing remarks regarding Dr. Navin’s testimony in Lankford and Higa. Udo also argues the ICA gravely erred by holding she was not deprived of her right to a fair trial due to ineffective assistance of counsel. Udo requests this court vacate her conviction and remand her case for a new trial.

The State argues the ICA correctly held the Lankford and Higa questions and closing remarks were relevant to establishing Dr. Navin’s defense bias or within the bounds of inference that a prosecutor may draw in closing argument, and thus not misconduct. The State also maintains that Udo’s counsel was effective because it was not necessary for him to object to the Lankford and Higa questions and closing argument, which the State argues were not improper.

Supreme
Court

(Amended 12/14/18)

No. SCAP-17-0000823, Thursday, March 7, 2019, 10 a.m.

UNITE HERE! LOCAL 5, Appellant-Appellant, vs. DEPARTMENT OF PLANNING AND PERMITTING/ZONING BOARD OF APPEALS, CITY AND COUNTY OF HONOLULU; LYLE ISHIDA, in his official capacity as Chairperson of the Zoning Board of Appeals, Appellees-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Appellant Unite Here:
Gregory W. Kugle, Christopher J.I. Leong, Loren A. Seehase, and Joanna C. Zeigler of Damon Key Leong Kupchak Hastert

Attorney for Appellee Department of Planning and Permitting and City and County of Honolulu:

Brad T. Saito, Deputy Corporation Counsel

Attorneys for Appellee-Intervenor PACREP 2 LLC:

Terence J. O’Toole, Sharon V. Lovejoy, and Maile S. Miller of Starn O’Toole Marcus & Fisher

NOTE: Order granting Application for Transfer, filed 07/27/18.

NOTE: Order granting request for rescheduling of oral argument from 01/17/19 to 03/07/19 at 10:00 a.m., filed 12/14/18.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:
This appeal arises from Appellee-Appellee City and County of Honolulu Department of Planning and Permitting’s (DPP) decision to approve a Waikīkī Special District permit for Appellee-Intervenor PACREP 2 to develop a 39-story condo-hotel at 2139 Kuhio Avenue (2139 Kuhio Permit). The condo-hotel would share an 8-story building podium and common amenities with an adjacent condo-hotel tower at 2121 Kuhio Avenue that had been previously approved by the DPP.

Appellant-Appellant Unite Here! Local 5 (Local 5) appealed the DPP’s decision to the Zoning Board of Appeals (ZBA), contending that a restrictive covenant condition in the permit for the 2121 Kuhio Avenue tower (2121 Kuhio Permit) should similarly be included in the 2139 Kuhio Permit. In response, the DPP and PACREP 2 noted that the DPP removed the condition from the 2121 Kuhio Permit before the DPP approved the 2139 Kuhio Permit. The ZBA affirmed the decision of the DPP.

Local 5 appealed to the Circuit Court of the First Circuit (circuit court). The circuit court affirmed the ZBA’s decision, concluding that it did not have jurisdiction over the modification of the 2121 Kuhio Permit, and that the ZBA’s valid findings and conclusions supported its decision to affirm the DPP’s approval of the 2139 Kuhio Permit.

Local 5 appealed to the Intermediate Court of Appeals, and the case was transferred to this court. On secondary appeal, Local 5 argues that:

(1) The circuit court erred in concluding that it lacked jurisdiction over the modification of the 2121 Kuhio Permit, or that the ZBA lacked jurisdiction over the modification;
(2) The circuit court erred in failing to decide that the modification of the 2121 Kuhio Permit was illegal;
(3) The circuit court erred in failing to find a due process violation when Local 5 did not receive notice of the modification of the 2121 Kuhio Permit;
(4) The circuit court erred in affirming the 2139 Kuhio Permit without including conditions similar to the conditions in the 2121 Kuhio Permit; and
(5) “Hotel,” as defined by the Land Use Ordinance, is unconstitutionally vague.

Supreme
Court