No. SCWC-28901, Thursday, September 20, 2012, 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee-Cross-Appellant, vs. ROBERT J. McKNIGHT, JR., Petitioner/Defendant-Appellant-Cross-Appellee.

(Electronic Enticement of a Child in the First Degree)

Attorney for Petitioner/Defendant-Appellant-Cross-Appellee:

Benjamin E. Lowenthal

Attorneys for Respondent/Plaintiff-Appellee-Cross-Appellant:

Kimberly Tsumoto Guidry, First Deputy Solicitor General and Marissa H.I. Luning, Deputy Solicitor General

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

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

NOTE: Certificate of Recusal, by James E. Duffy, Jr., filed 04/20/12.

NOTE: Order assigning Circuit Court Judge Rom A. Trader in place of Duffy, filed 05/02/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 05/31/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge Rom A. Trader in place of Duffy, recused.

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Brief Description:

Petitioner/Defendant-Appellant-Cross-Appellee, Robert J. McKnight, Jr., filed an application for writ of certiorari to review the February 22, 2012 Judgment on Appeal of the Intermediate Court of Appeals (ICA), issued pursuant to its January 31, 2012 Published Opinion and its February 22, 2012 Order of Correction. The ICA’s Judgment (1) affirmed the Circuit Court of the Second Circuit’s (circuit court) November 14, 2007 Judgment of

Guilty Conviction and Sentence of Probation for Electronic Enticement of a Child in the First Degree, (2) vacated the circuit court’s February 1, 2007 Findings of Fact, Conclusions of Law and Order Granting Defendant’s Motion to Suppress Statement as Involuntary and Granting Defendant’s Motion to Suppress Evidence Seized Pursuant to Invalid Warrant, and (3) remanded the case for further proceedings.

This case raises three issues for the Supreme Court to consider. First, McKnight argues that the ICA gravely erred in concluding that a conviction for electronic enticement, in violation of HRS § 707-756, does not requires the use of a computer or electronic device to accomplish each of the three acts enumerated by the statute (including traveling to an agreed upon meeting place at an agreed upon meeting time). McKnight next argues that the ICA gravely erred in holding that investigators did not violate his constitutional rights when investigators failed to make any efforts to contact an attorney and recommenced interrogation after he had invoked his right to counsel. Finally, McKnight argues that the ICA gravely erred in holding that a Scrivener’s error in the issuance date of a search warrant did not render the warrant facially invalid so as to require application of the exclusionary rule. In response, Respondent/Plaintiff-Appellee-Cross-Appellant, State of Hawai`i, argues that interpreting HRS § 707-756 to require the use of a computer or electronic device to travel to a meeting place would create an absurd and unjust result that is inconsistent with the legislature’s intent. The State also argues that McKnight’s

statement to investigators had been voluntary because he had reinitiated communications with investigators and waived his constitutional right to counsel. Finally, the State argues that the suppression of evidence due to a Scriviner’s error would be inappropriate where the warrant was otherwise supported by probable cause and suppression would not advance the underlying

principles of the exclusionary rule.