Case Notes

• Publication year: 2012
• Citation: Vol. 16 No. 05

CASE NOTES

Supreme Court

Criminal

State v. Pecpec, No. SCWC-30500, March 20, 2012 (Recktenwald, C.J. with Acoba, J. dissenting and Duffy, J., joining). Petitioner was charged and convicted of twenty-five counts of violations of orders of protection. Petitioner then challenged his convictions on the ground that they were obtained in violation of his right to a unanimous verdict because the jury was not specifically instructed that it was required to unanimously agree to the specific act that supported each count. The Hawaii Supreme Court held that under State v. Mundon, 121 Hawaii 339, 355, 219 P.3d 1126, 1142 (2009), the family court was required to give a specific unanimity instruction in the circumstances of the instant case. However, the family court's error did not contribute to Petitioner's convictions, because there was no "genuine possibility" that the jurors could have found Petitioner guilty without unanimously concluding that he committed each of the acts presented in the State's exhibits.

Acoba, J. and Duffy, J., joining, dissented. Justice Acoba pointed out that: (1) because Respondent did not select the specific exhibit that was being offered in support of each count, the court was required to give the jury a specific unanimity instruction; (2) the court's failure to give the jury a specific unanimity instruction violated Petitioner's right to secure a unanimous verdict; (3) such error was not harmless beyond a reasonable doubt; and (4) to avoid unnecessary appeals in this type of case in the future, the circuit "courts in every [such] case [should be mandated] to instruct the jury that all of its members must unanimously agree to 'the same underlying . . . act' or acts that constitute the conduct they find culpable under the charge, before they may find a defendant guilty[,]" without regard to the prosecution's election. State v. Kealoha, 95 Hawaii 365, 378, 22 P.3d 1012, 1025 (App. 2000) (ellipsis in original).

Note: To access the full text of the opinions on-line, see the Judiciary's web site at http://www.state.hi.us/jud/ctops. htm.

State v. Lealao, No. SCWC-30502, March 28, 2012 (Acoba, J.). Petitioner sought review of the ICA's judgment affirming Petitioner's conviction of assault in the first degree. Petitioner remarked "I'm so sorry. I made a big mistake." The circuit court ruled that Petitioner's statement was admissible pursuant to Haw. R. Evid. R. 409.5. The Hawaii Supreme Court held that although Rule 409.5 does not apply to criminal cases and the circuit court erred in admitting Petitioner's statement, the error was harmless beyond a reasonable doubt in light of Petitioner's testimony in the case in which he explained the statement that he made a big mistake and essentially expressed regret that the incident had taken place. Moreover, the Hawaii Supreme Court concluded that the statement was a party admission under Haw. R. Evidence 803(a)(1) and therefore, the conviction and sentence must be affirmed.

State v. Walker, No. SCWC-29659, March 28, 2012 (Duffy, J. with Recktenwald, C.J. concurring separately and Nakayama, J., joining). The Hawaii Supreme Court affirmed the conviction of Petitioner for operating a vehicle under the influence of an intoxicant to clarify and reconcile the Hawaii Supreme Court's opinions in State v. Ruggiero, 114 Hawaii 227, 160 P.3d 703 (2007), and State v. Kekuewa, 114 Hawaii 411, 163 P.3d 1148 (2007) in light of State v. Wheeler, 121 Hawaii 383, 219 P.3d 1170 (2009). Petitioner did not challenge the ICA majority's determination that the language of Count I was defective for failing to allege an essential element, the attendant circumstance that Petitioner was convicted three or more times within ten years of operating a vehicle under the influence of an intoxicant. Rather, Petitioner contended that the ICA improperly remanded his case to the circuit court with instructions to dismiss Count I without prejudice. Petitioner argued that there was insufficient evidence to convict him of habitually operating a vehicle under the influence of an intoxicant and that the circuit court's judgment should be reversed. In the alternative, Petitioner argued that if there was sufficient evidence to convict him, the circuit court judgment pursuant to Count I must be vacated and the case remanded to circuit court...