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Oral Arguments Schedule

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

Courts in the Community

No. SCWC-14-0001135, Wednesday, April 10, 2019, 10 a.m.

In the Matter of BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, INC., Respondent/Respondent-Appellant-Appellee/Cross-Apppellee, vs. SCOTT T. MURAKAMI, in his official capacity as the Director, Department of Labor and Industrial Relations, State of Hawaiʻi; DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, STATE OF HAWAIʻI, Respondents/Appellees-Appellees/Cross-Appellants, and TAMMY L. JOSUE, Petitioner/Complainant-Appellee-Appellant/Cross-Appellee.

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

Kauaʻi Community College
Performing Arts Center
3-1901 Kaumualiʻi Hwy
Līhuʻe, HI 96766
   
Attorney for Petitioner Josue: 

Ronald T. Fujiwara

Attorneys for Respondents Murakami and DLIR:

Frances Lum, Li-Ann Yamashiro, and Adam S. Rosenberg, Deputy Attorneys General

Attorneys for Respondent BCI Coca-Cola: 

Anna Elento-Sneed and Trisha Gibo of ES&A, Inc.

NOTE: Order accepting Application for Writ of Certiorari, filed 01/31/19.

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

Brief Description:

Tammy Josue was employed at Coca-Cola when, in May 2009, she suffered a stress injury that resulted from her employment.  Josue was unable to work, and Coca-Cola placed her on a twelve-month leave of absence in accordance with its disability leave policy.  On April 15, 2010, Coca-Cola hired an employee to permanently fill Josue’s position.  Josue was authorized to return to work by her doctor on September 1, 2010, with no restrictions.  Upon her return, Josue was informed that her position had been filled.  Coca-Cola later offered Josue other positions that Josue declined, which she explained either offered lower pay or required minimum qualifications that she did not possess.  Josue was told that if she did not find a new position with the company within twelve weeks, she would be terminated.

Two weeks later, Josue filed a complaint with the Department of Labor and Industrial Relations (the Department).  In her complaint, Josue argued that Coca-Cola discriminated against her on September 1, 2010, when the company did not return her to her position after she was cleared to return to work.  Josue alleged that Coca-Cola discriminated against her “solely because” she suffered a work injury, which violated Hawaii Revised Statutes (HRS) § 378-32(a)(2) (2015).

After a hearing, the hearing officer issued a recommended decision and concluded that Coca-Cola’s failure to return Josue to the former position constituted discrimination against her solely because of her work injury, which violated HRS § 378-32(a)(2).  Upon review, the Director of the Department adopted the recommended decision.

  Coca-Cola appealed the Director’s decision to the Circuit Court of the First Circuit (circuit court).  The circuit court reversed the Director’s decision and held that the company’s actions did not violate HRS § 378-32(a)(2). 

Josue appealed the decision to the Intermediate Court of Appeals (ICA).  The ICA affirmed the circuit court’s decision and held that Coca-Cola did not discriminate against Josue “solely because” of her injury.  The ICA found that the company filled the position because it determined that Josue’s absence was creating a business hardship and that it refused to reinstate her as the position had been filled.  The ICA also stated that there was no finding by the hearing officer that indicated Coca-Cola’s business hardship was pretextual.  Therefore, the ICA concluded that Coca-Cola did not violate HRS § 378-32(a)(2).

In her application for a writ of certiorari, Josue argues that Coca-Cola violated the statute because but for her injury, there would have been no need to fill the position.  Josue also contends that Coca-Cola was required to either leave the position vacant or hire a temporary employee until she was able to return.  The ICA therefore erred, Josue asserts, when it concluded that Coca-Cola did not discriminate against her “solely because” of her injury.  Coca-Cola responds that the ICA’s opinion should be affirmed.

Supreme
Court

No. SCWC-17-0000427, Wednesday, April 24, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. JAMES THOMPSON, 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:

Jon N. Ikenaga, Deputy Public Defender

Attorney for appellee:

Loren J. Thomas, Deputy Prosecuting Attorney

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 12/28/18.

NOTE: Order assigning Circuit Court Judge R. Mark Browning in place Recktenwald, C.J., recused, filed 01/03/19.

NOTE: Order accepting Application for Writ of Certiorari, filed 01/31/19.

COURT: Nakayama, Acting C.J., McKenna, Pollack, and Wilson, JJ., and Circuit Court Judge Browning, in place of Recktenwald, C.J., recused.

Brief Description:

Petitioner/Defendant-Appellant James Thompson (“Thompson”) was convicted of seven counts of sexual assault in the first degree, two counts of attempted sexual assault in the first degree, eight counts of sexual assault in the third degree, two counts of kidnapping, and one count of sexual assault in the fourth degree. He was sentenced to concurrent extended sentences of life imprisonment with the possibility of parole as to nine counts, ten years’ imprisonment as to eight counts, twenty years’ imprisonment as to two counts, and one year imprisonment as to one count (“2001 Sentence”). Thompson’s sentence was later vacated by the U.S. District Court for the District of Hawaii. In 2017, Thompson was resentenced to concurrent and consecutive terms of imprisonment that totaled sixty-one years (“2017 Sentence”).

The issues before this court are threefold: (1) whether the 2017 Sentence violates the U.S. Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) whether the 2017 Sentence is “more severe” than the 2001 Sentence in violation of HRS § 706-609 and Thompson’s constitutional due process rights; and (3) whether the circuit court was precluded from granting the motion for consecutive terms under the law-of-the-case doctrine.

Supreme
Court

No. SCAP-16-0000830, Wednesday, April 24, 2019, 10 a.m.

STATE OF HAWAII, Plaintiff-Appellee, vs. JOSEPH PITTS, 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 Appellant:

Walter R. Schoettle

Attorney for Appellee:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order granting Application for Transfer, filed 08/10/18.

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

Brief Description:

Following a jury trial, Joseph Pitts was convicted of attempted murder in the second degree in the Circuit Court of the First Circuit and sentenced to life imprisonment with the possibility of parole. Pitts appealed from the conviction, and this case was transferred to the Hawaii Supreme Court.

Pitts argues on appeal that the circuit court erred in denying his motion for a new trial based on juror misconduct. Pitts contended in the motion that during their deliberations jurors had received scissors and gloves to remove a pair of pants–recovered from Pitts after the incident–from a sealed plastic bag container. Testimony by a juror during the motion hearing disclosed that the pants were turned inside out and that several jurors examined three small spots of a substance on the inside of the pants of which the parties were unaware. Pitts maintains that the jury’s consideration of this previously undiscovered substance violated his right to a fair trial by an impartial jury, thus requiring a new trial.

Pitts also contends that the circuit court erred in denying his motion for a new trial based on multiple instances of prosecutorial misconduct, including that the prosecutor misrepresented the testimony of its witnesses, improperly commented on Pitts’ right to be present at his trial, elicited inadmissible testimony of an alleged motive by Pitts to commit the offense, and expressed a personal opinion about the credibility of the State’s witnesses and Pitts’ guilt.

In addition, Pitts argues that the circuit court erred when it denied his pretrial motion to dismiss the indictment because the State failed to present exculpatory evidence to the grand jury that the complaining witness did not initially identify Pitts as his attacker. Pitts further contends that he was denied the right to a jury of his peers because African-Americans were systematically excluded from the jury lists and the State dismissed a prospective juror who expressed concern about the lack of African-Americans in the jury venire.

The State counters that there was no juror misconduct because the pants that the jurors examined were properly admitted into evidence without limitations, thereby allowing such use by the jury during deliberations. Alternatively, the State contends, even if misconduct by the jurors occurred, it was harmless beyond a reasonable doubt in light of the evidence presented at trial. The State also argues that the prosecutor did not commit misconduct and therefore the circuit court did not err in denying Pitts’ motion for a new trial. The State maintains that the circuit court did not err in denying the motion to dismiss the indictment because the evidence that Pitts argues should have been presented to the grand jury did not negate Pitts’ guilt and was not clearly exculpatory. Additionally, the State contends that Pitts fails to show that he was denied the right to a jury of his peers and that Pitts failed to object to the dismissal of the prospective juror in order to preserve the issue for appellate review.

Supreme
Court