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Oral Argument Before the Hawaii Supreme Court

No. SCWC-30559, Monday, July 1, 2013, 10 a.m.

(Amended 6/4/13)

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JOSEPH PITTS, 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: 

Kevin O’Grady

Attorney for Respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 05/14/13.

NOTE: Order granting motion to reschedule oral argument to 07/01/13 at 10:00 a.m., filed 06/04/13.


 [ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellant Joseph Pitts (“Pitts”) was convicted of, and sentenced for, attempted murder in the second degree, in violation of Hawai‘i Revised Statutes §§ 705-500, 707-701.5, and 706-656. The charges stemmed from an incident in which Pitts was alleged to have stabbed his close friend in the neck while both were sitting in a parked car.

On certiorari, Pitts raises a single question presented: “Did the ICA err when it found that the lower court did not err in deciding that the jury did not consider extrajudicial material or hold a hearing to determine if the jury considered extrajudicial material?” Pitts argues on certiorari that “no witness testified that there was blood on Pitts’ jacket,” and that the jury may have “conducted its own examination [of the jacket] to speculate by scratching, sniffing, or otherwise, whether or not blood actually existed[.]” The State points to testimony from a Honolulu Police Department criminalist that Pitts’ jacket, which was admitted into evidence, contained blood that was an “identical” DNA match to the complaining witness.

This court has also requested supplemental briefing from the parties as to whether the trial court committed plain error in not reinstating standby counsel and/or in not appointing substitute counsel post-verdict for Pitts for purposes of post-verdict motions and sentencing. In this regard, Pitts, an indigent defendant, was represented at trial by a court-appointed defense attorney. In the middle of trial, Pitts announced his intention to fire his court-appointed defense attorney. After engaging in a colloquy about the right to counsel, the circuit court found that Pitts voluntarily, knowingly, and intelligently waived his right to counsel, allowed him to proceed pro se, and assigned court-appointed counsel to serve in a standby capacity. Later in the trial, Pitts expressed that he regretted his decision and wanted his standby counsel to resume representation. The circuit court denied Pitts’ request, based on Pitts’ valid waiver of his right to counsel, as well as standby counsel’s representation that an ethical problem had arisen because Pitts had accused him of colluding with the State to have Pitts convicted. For the rest of the trial, Pitts was pro se.

After the jury returned its guilty verdict, standby counsel filed a Motion to Withdraw as Stand-by Counsel, Appoint Substitute Counsel and Declare Mistrial (which the circuit court construed as a Motion for a New Trial) on the basis that Pitts’ waiver of the right to counsel was involuntary. The circuit court denied the motion, expressing doubt as to whether standby counsel had “standing” to bring the motion in the first place because Pitts was pro se. The circuit court also denied the motion on the merits, concluding that Pitts had validly waived his right to counsel. The circuit court allowed Pitts to file his “Motion to Set Aside Verdict and Enter Judgment of Acquittal, Hawaii Rules of Penal Procedure Rule 29(c) or in the Alternative Grant Defendant New Trial HRPP Rule 33 HRS § 635-56[.]” The circuit court denied Pitts’ pro se motion. Ultimately, the circuit court granted Pitts’ motion for the appointment of appellate counsel. Pitts remained pro se for sentencing.