Case Notes

• Jurisdiction: Hawaii,United States
• Citation: Vol. 24 No. 07
• Publication year: 2020

CASE NOTES

Hawaii Supreme Court

Criminal

State v. Abihai, No. SCWC-17-0000546, April 28, 2020, (McKenna, J.; Nakayama, J. dissenting with whom Recktenwald, CJ. joins). On June 9, 2014, Allan H. Abihai ("Abihai"), who was serving a life term of imprisonment for multiple felonies committed in 1984, left the Laumaka Work Furlough Center ("Laumaka") in Honolulu and did not return. On June 29, 2014, Abihai was arrested at a former cellmate's apartment in Honolulu. He was later charged with escape in the second degree. In his jury trial on the escape charge, Abihai raised a choice of evils defense, contending he left Laumaka because he was threatened he would be hurt if he testified in an upcoming federal criminal trial involving a prison gang. The jury was instructed on the choice of evils defense, then convicted Abihai of escape in the second degree. The circuit court imposed a five-year prison term for the escape conviction, to run concurrent to his life sentence for the 1984 felonies, and denied him credit for time served. Abihai raised two points of error on appeal to the ICA: (1) that trial counsel was ineffective for substantially impairing his choice of evils defense by failing to elicit certain testimony from his witnesses; and (2) that the circuit court erred when it denied him credit for time served on the sentence imposed for the escape conviction. The ICA affirmed the circuit court's judgment of conviction and sentence. Abihai raised the same issues on certiorari. The Hawaii Supreme Court resolved Abihai's points of error as follows: (1) Because the record on appeal was insufficient to determine whether there has been ineffective assistance of counsel, it affirmed Abihai's conviction without prejudice to a subsequent Hawaii Rules of Penal Procedure Rule 40 petition on the ineffective assistance of counsel claim; and (2) the ICA erred in affirming the circuit court's decision to deny Abihai credit for time served on his escape conviction.

Nakayama, J., joined by Recktenwald, C.J. dissented. Nakayama, J. opined that the majority's interpretation that Haw. Rev. Stat. § 706-671(1) entitled Abihai to pre-sentence detention credit created a new rule, disregarded precedent, and ignored the plain language of Haw. Rev. Stat. § 706-671(3) and its legislative history. Prior to this decision, the Hawaii Supreme Court had consistently interpreted Haw. Rev. Stat. § 706-671(1) to mean that a defendant was not entitled to credit for time served in connection with an unrelated criminal offense. This interpretation was supported by the statute's plain language, the legislative history, the purpose behind granting credit for time served, and the relevant commentary. Yet, the majority announced a new rule in this case with no explanation for departing from prior interpretation or analysis as to why this new rule should apply retroactively to Abihai. In 2012, the legislature added Haw. Rev. Stat. § 706-671(3) specifically to foreclose the possibility of pre-sentence detention credit for a subsequent crime committed while a defendant was already serving a term of imprisonment. Under the plain language of Haw. Rev. Stat. § 706-671(3), because Abihai was convicted of a crime committed while he was serving a life sentence for separate, unrelated felony convictions, he could not receive credit for time served against the sentence he received for his subsequent escape conviction. Therefore, Nakayama, J. dissented.

Appeal Pointer

A motion for extension of time to file an opening, answering or reply brief will be approved only upon good cause shown. The submission of the motion does not toll the time for filing the brief. HRAP 29(b).

State v. Gallagher, No. SCWC-14-0001300, May 15, 2020, (Pollack, J., with Recktenwald, C.J., and Nakayama, J., dissenting). In this case, the defendant was charged with criminal property damage in the second degree for damaging the complainants' vehicle. Over the defense's objections, the circuit court allowed the State to present evidence during trial of four prior incidents of aggressive and erratic behavior by the defendant directed at the complaining witnesses and their home. The circuit court also permitted the State to adduce evidence of the fear the complaining witnesses experienced as a result of the prior incidents and the various countermeasures they undertook in response to these incidents. The defendant was convicted as charged, and the conviction was affirmed on appeal. On review, the Hawaii Supreme Court concluded that the risk of unfair prejudice posed by the introduction of the four prior incidents substantially outweighed their limited probative value.

Recktenwald, C.J., dissented. Recktenwald, CJ. stated that the majority held that Appellee's testimony about the four prior incidents in which Gallagher aggressively confronted the Appellees was "only marginally probative," and that the likelihood of unfair prejudice substantially outweighed its probative value, making the evidence inadmissible under Haw. R. of Evid. 403. Recktenwald, CJ. would have held, first, that testimony about what happened during the prior incidents was relevant and admissible. Second, while Recktenwald, CJ. agreed with the majority that testimony about the impact of the incidents on the Appellees was irrelevant and prejudicial, he concluded that Gallagher did not specifically object to that evidence and so any error was waived.

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Nakayama, J., also dissented. Gallagher was convicted by a jury of one count of criminal property damage in the second degree. The charge for which Gallagher was convicted stemmed from a 2013 incident in which Gallagher kicked a truck that belonged to the complaining witnesses Jessica Norman (Ms. Norman) and Garron Norman (Mr. Norman) (collectively, the "Normans") numerous times while it was parked in the Normans' driveway. At trial, Ms. Norman testified that this event was not an isolated incident and described four prior incidents in which Gallagher harassed and threatened her in the six months leading up to the criminal property damage. Ms. Norman also testified that she was afraid of Gallagher and feared for her life. The issue on appeal was whether the probative value of the prior acts evidence was substantially outweighed by the danger that it would unfairly prejudice Gallagher. In vacating the ICA's judgment on appeal and remanding the case to the circuit court, the Majority held that the circuit court abused its discretion in erroneously admitting unfairly prejudicial evidence of Gallagher's prior acts and that the admission of this evidence was not harmless beyond a reasonable doubt. Nakayama, J. disagreed. The evidence of Gallagher's prior bad acts was highly probative of his state of mind at the time he attacked the Normans' truck and of his intent to cause, or knowledge that he was causing, more than $1,500.00 worth of damage to the vehicle. By comparison, this evidence was not prejudicial because Gallagher's behavior, which involved screaming obscenities and making obscene gestures at the Normans' home, is not the type that tends to "rouse overwhelming hostility in the minds of the jurors" and because the circuit court issued multiple instructions advising the jury that it could only use the evidence for a limited permissible purpose. Based on the record of Gallagher's trial, Nakayama, J. concluded that the circuit court correctly admitted evidence of Gallagher's prior bad acts, but that the circuit court erred in allowing Ms. Norman to testify about her fear of Gallagher. Ms. Norman's fear was not relevant to any element of the crime for which Gallagher was on trial, and therefore should have been excluded pursuant to Haw. R. Evid. Rule 401. However, there was no reasonable possibility that the circuit court's admission of Ms. Norman's testimony that she was afraid might have contributed to Gallagher's conviction because it had no bearing on Gallagher's subjective intent to damage the vehicle -the main issue at trial. Therefore, this error was, in her opinion, harmless beyond a reasonable doubt.

State v. Melendez, No. SCWC-18-0000522, April 24, 2020, (Pollack, J.). In this case, the defendant was found to be in possession of .005 grams of a substance containing...