NO. 28448 – Monday, August 10, 2009 – 10 a.m.

STATE OF HAWAI`I, Respondent-Plaintiff-Appellee, vs. JAMES MUNDON, Petitioner-Defendant-Appellant. (Terroristic Threatening in the First Degree)

Attorney(s) for Petitioner-Defendant-Appellant(s)
Stuart N. Fujioka

Attorney(s) for Respondent-Plaintiff-Appellee(s)
Honorable Shaylene C. L. Iseri-Carvalho, Prosecuting Attorney, and Tracy J. Murakami, Deputy Prosecuting Attorney, County of Kauai

NOTE: Certificate of Recusal by Justice Mark E. Recktenwald, filed 5/22/09.

NOTE: Order assigning Judge Victoria S. Marks in place of Recktenwald, recused, filed 5/29/09.

COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Circuit Judge Victoria S. Marks in place of Recktenwald, recused.

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Brief description:

On July 1, 2009, this court accepted petitioner/defendant-appellant James Mundon timely application for a writ of certiorari to review the Intermediate Court of Appeals’ (ICA) March 20, 2009 judgment on appeal, entered pursuant to its February 27, 2009 summary disposition order (SDO). Therein, the ICA affirmed in part and vacated in part the Circuit Court of the Fifth Circuit’s February 16, 2007 judgment, convicting Mundon of and sentencing him for: (1) one count of attempted sexual assault in the first degree (attempted sex assault 1st), in violation of Hawai`i Revised Statutes (HRS) §§ 707-730(1)(a) (1993) and 705-500 (1993); (2) one count of terroristic threatening in the first degree (TT1), in violation of HRS §§ 707-715 (1993) and 707-716(1)(d) (1993); (3) one count of kidnapping, in violation of HRS § 707-720(1)(d) (1993); (4) one count of assault in the third degree, in violation of HRS § 707-712(1)(a) (1993); and (5) one count of attempted assault in the second degree, in violation of HRS §§ 707-711 (1993) and 705-500.

Briefly stated, the charges levied against Mundon (totaling 28-counts) were based on an incident during which Mundon threatened the complaining witness with a knife, forced her to remove her clothes, subjected her to sexual kissing and touching, and, later, tackled and restrained her when she tried to escape. During the pre-trial proceedings, Mundon waived his right to counsel and represented himself at trial with the assistance of standby counsel. Following a six-day jury trial, Mundon was convicted of the above enumerated offenses, and Mundon appealed. The ICA vacated and remanded all of his convictions, except for the attempted sex assault 1st conviction, which the ICA affirmed.

On application, Mundon contends that the ICA gravely erred in holding that the trial court did not err in failing to provide a specific unanimity instruction with respect to the charges of attempted sex assault 1st, TT1, and kidnapping. Mundon also contends that the ICA gravely erred in holding that the trial court did not deprive him of his state and federal constitutional rights (1) to due process, confrontation, a speedy trial, and assistance of counsel and (2) to have a jury find the facts necessary for the imposition of a consecutive sentence.