No. SCWC-12-0000984, Thursday, August 21, 2014, 11:15 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. TOI NOFOA, 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:

Craig W. Jerome, Deputy Public Defender

Attorney for Respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/18/14.

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

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Defendant-Appellant Toi Nofoa (“Nofoa”) filed an application for writ of certiorari to review the Summary Disposition Order of the Intermediate Court of Appeals (“ICA”) filed on January 31, 2014. In its Order, the ICA affirmed Nofoa’s conviction and sentence for Kidnapping in violation of Hawai`i Revised Statutes (“HRS”) ‘ 707-720, and Terroristic Threatening in the First Degree in violation of HRS ‘ 707-716. The charges against Nofoa were based on an incident with his ex-girlfriend (complaining witness or “CW”) at a Haleiwa gas station on September 11, 2008.

CW died while Nofoa’s kidnapping and terroristic threatening case was pending trial. Because CW was unavailable to testify at Nofoa’s trial, the State sought and was permitted to present her preliminary hearing testimony and a recording of her 911 call to the police on the night of the incident.

In addition to the circuit court’s admission of the abovementioned evidence in Nofoa’s trial, also at issue in this Application is the circuit court’s decision to (1) permit the jury to have the CD of CW’s preliminary hearing testimony during their deliberations; and (2) permit the Prosecutor to inform the jury that CW was dead during closing arguments.

Nofoa presents the following questions on certiorari:

Whether the ICA gravely erred in rejecting Nofoa’s claims: 1) that the preliminary hearing testimony failed to provide him with a constitutionally adequate opportunity to effectively cross-examine CW; 2) that the trial court abused its discretion in submitting a recording of the preliminary hearing testimony to the jury during deliberations; 3) that the trial court erred in admitting the CW’s 911 call; and 4) of judicial bias where the trial court allowed the State to tell the jury that CW was unavailable at trial because she was dead.