Oral Argument Before the Hawaii Supreme Court — SCWC-21-0000364
No. SCWC-21-0000364 Tuesday, February 28, 2023, 2 p.m.
STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, vs. TROY D. BORGE, JR., Petitioner/Defendant-Appellant.
The above-captioned case has been set for oral argument on the merits at:
Supreme Court Courtroom
Aliʻiōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and on Olelo Community Television Channel 49.
Attorney for Petitioner Troy D. Borge, Jr.:
Attorney for Respondent State of Hawaiʻi:
Renee Ishikawa Delizo, Deputy Prosecuting Attorney
NOTE: Order accepting Application for Writ of Certiorari, filed 02/02/23.
COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.
In 2020, Troy D. Borge, Jr. (“Borge”) pled no contest to Assault in the First Degree in violation of Hawaiʻi Revised Statutes (“HRS”) § 707-710, reserving his right to appeal. During sentencing, the Circuit Court of the Second Circuit (“circuit court”) ordered Borge pay $1,461,444.01 in restitution to complainant (“CW”) for medical expenses arising from the assault.
Borge appealed, and the Intermediate Court of Appeals (“ICA”) affirmed. Borge then filed an application for writ of certiorari, which we accepted. Borge argues the ICA gravely erred in affirming the circuit court’s: (1) denial of his motion to dismiss his second indictment due to prosecutorial misconduct before the second grand jury and lack of probable cause; and (2) restitution order.
Specifically, Borge alleges the prosecutor committed three instances of prosecutorial misconduct during his second grand jury proceeding by: (1) eliciting testimony that Borge invoked his right to remain silent in violation of article I, section 10 of the Hawaiʻi Constitution; (2) presenting excessive hearsay; and (3) failing to present exculpatory evidence that a district court judge previously found no probable cause for Attempted Murder in the Second Degree, and that Borge’s use of force was justified because it was in defense of others.
Borge also argues the circuit court’s restitution order was erroneous because CW did not suffer any “losses” under the plain and unambiguous language of HRS § 706-646, since CW’s insurance provider, AlohaCare, paid his medical expenses.