Oral Argument Before the Hawaii Supreme Court — No. SCAP-24489
No. SCAP-24489, Thursday, June 1, 2017, 8:45 a.m.
STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. FRANK LOHER, 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
Attorneys for Petitioner:
Peter C. Wolff, Jr., Federal Public Defender, and Craig W. Jerome, Assistant Federal Defender
Attorney for Respondent:
Brian R. Vincent, Deputy Prosecuting Attorney
NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 12/09/16.
NOTE: Order assigning Circuit Court Judge Edwin C. Nacino, in place of Recktenwald, C.J., recused, filed 12/15/16.
NOTE: Order granting Application for Transfer, filed 12/19/16.
COURT: PAN, Acting C.J.; SSM, RWP, and MDW, JJ., and Circuit Court Judge Nacino, in place of Recktenwald, C.J., recused.
On August 19, 1999, Petitioner Frank Loher was indicted by a grand jury for attempted sexual assault in the first degree and attempted kidnapping. Prior to trial, Petitioner filed a Notice of Alibi Defense. The State’s witness list identified fourteen witnesses. The circuit court’s Memorandum of Pretrial stated that the jury trial was expected to take five to six days.
The evidentiary portion of the trial commenced on Tuesday, November 14, 2000. On that day, the State presented the testimony of four witnesses and then rested its case at approximately 2:15 p.m.
After a short recess, Petitioner requested a continuance until the following morning to secure the presence of defense witnesses. The circuit court denied the request for continuance and stated it would allow Petitioner’s counsel to call Petitioner to testify that day and to call the remaining witnesses on the next trial day. Petitioner’s counsel objected, stating that the defense intended to first elicit testimony from its witnesses and then determine whether Petitioner would testify in his own defense. The circuit court again denied the requested continuance and directed counsel to call Petitioner to testify or Petitioner’s right to testify would be waived. Following a brief recess, Petitioner elected to testify.
On the next trial day, defense counsel called two witnesses to testify, and the State called three witnesses to testify in rebuttal. At the conclusion of trial, Petitioner was convicted of the sexual assault offense and acquitted of the kidnapping offense. Petitioner was sentenced to life imprisonment with the possibility of parole, with a mandatory minimum term of thirteen years and four months. The ICA affirmed Petitioner’s conviction and sentence on direct appeal in appellate case number 24489.
Following the affirmance by the ICA, Petitioner engaged in extensive post-conviction proceedings in both state and federal court, arguing, inter alia, that the circuit court violated his constitutional rights by requiring him to testify on the first day of trial or not at all. As a result of the litigation, on October 25, 2016, the ICA vacated its judgment in case number 24489 and reinstated Petitioner’s direct appeal so that Petitioner could raise this claim. Petitioner filed an application for transfer to this court, which was granted.
On appeal, Petitioner contends that the circuit court erred by requiring him to testify first, before his other witnesses, or not at all. Petitioner maintains that the circuit court’s requirement resulted in a structural error or that the error cannot be demonstrated by the State to be harmless beyond a reasonable doubt, which mandates a new trial. The State responds that the circuit court did not abuse its discretion in denying the request for continuance, or, in the alternative, that any error was harmless.