No. SCWC-21-0000504, Tuesday, July 1, 2025, 2 p.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellant, vs. BRIAN LEE SMITH, Petitioner/Defendant-Appellee.

Listen to the audio recording in MP3 format

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

Supreme Court Courtroom
Ali‘iōlani 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 ‘Ōlelo TV 55 at olelo.org/tv-schedule/.

Attorneys for Petitioner/Defendant-Appellee BRIAN LEE SMITH:
     Michael H. Schlueter, Jason R. Kwiat, Andrew M. Kennedy, Eli N. Bowman and Nicole K. Bowman of Schlueter, Kwiat & Kennedy LLLP

Attorney for Respondent/Plaintiff-Appellant STATE OF HAWAI‘I:
     Charles E. Murray III, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 04/29/25.

NOTE: Order granting motion to continue oral argument from 06/05/25 to 06/19/25 at 2:00 p.m., filed 05/08/25.

NOTE: Order granting motion to continue oral argument from 06/19/25 to 07/01/25 at 2:00 p.m., filed 06/02/25.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:
This case arises out of petitioner Brian Lee Smith’s (“Smith”) convictions for murder in the second degree for shooting and killing Thomas Ballesteros, Jr., and attempted murder in the second degree for shooting and injuring Nikolaus Slavik.

The indictment notified Smith that he was subject to a mandatory minimum sentence under Hawai‘i Revised Statutes (“HRS”) § 706-660.1. HRS § 706-660.1 is titled “Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony.” It states that a person convicted of a felony, “where the person had a firearm in the person’s possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not,” in addition to the indeterminate term of imprisonment for the offense, may be sentenced to a mandatory minimum sentence of up to fifteen years for murder in the second degree and attempted murder in the second degree.

The statute contains no mens rea modifying “possession,” “threatened use,” or “use.” After his initial conviction was set aside by the Intermediate Court of Appeals on unrelated grounds and the case was remanded for a new trial, Smith filed a motion to strike the HRS § 706-660.1 portions of the indictment. He argued that a sentencing enhancement is an element of the underlying offense and that to satisfy due process requirements, the State must also allege the applicable mens rea in the charging document. The Circuit Court of the Third Circuit agreed and granted Smith’s motion to strike the enhancement from his indictment.

The State appealed and the ICA vacated the circuit court’s order. In his application for writ of certiorari Smith asserts that the State must allege and prove state of mind for a minimum sentence enhancement for firearm use or possession.