electronically filed intermediate court of appeals caap … · a. brief summary of pre trial...
TRANSCRIPT
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NO. CAAP-14-0000427 !IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAI’I !
!OPENING BRIEF OF DEFENDANT-APPELLANT!!
and!!APPENDICES!!LANDSBERG LAW OFFICE BY: MARCUS LANDSBERG, IV (8158) 1088 BISHOP ST. #PH HONOLULU HI 96813 TELEPHONE (808) 230-7419 EMAIL: [email protected] ATTORNEYS FOR DEFENDANT-APPELLANT
(SERVICE VIA JEFS NOTICE OF ELECTRONIC FILING)
STATE OF HAWAI’I Plaintiff-Appellee, !! vs. !!EUGENE PARIS, Jr., also known as Eugene J.E. Rivera, Jr. ! Defendant-Appellant
) ) ) ) ) ) ) ) ) ) ) )
CR NO. 12-1-0191 !APPEAL FROM JUDGMENT, GUILTY CONVICTION AND SENTENCE; NOTICE OF ENTRY; JUDGMENT, filed herein on January 14, 2014. !CIRCUIT COURT OF THE FIRST CIRCUIT !HONORABLE ROM A. TRADER, JUDGE
!
Electronically FiledIntermediate Court of AppealsCAAP-14-000042718-JUN-201410:38 AM
SUBJECT INDEX Page
TABLE OF AUTHORITIES iii ..........................................................................................................!I. INTRODUCTION 1 .......................................................................................................................!II. STATEMENT OF THE CASE 2 ...................................................................................................!
A. BRIEF SUMMARY OF PRE TRIAL MOTIONS………………………………………....3 !B. MOTIONS IN LIMINE…………………………………………………………………….3 !C. RELEVANT PORTIONS OF NOEL VILLANUEVA’S TESTIMONY …………………..4 !D. RELEVANT PORTIONS OF MOSES FONOIMOANA’S TESTIMONY ……………….6 !E. RELEVANT PORTIONS OF WALDRON CHUNG’S TESTIMONY …………………...6 !
III. STATEMENT OF THE POINTS OF ERROR 7 .........................................................................!1. The Felony Information for Escape in the Second Degree was Fatally Insufficient
Because it Failed to Allege the Definition of Detention Facility or Custody……………..7 !2. There was Insufficient Evidence to Uphold Paris’ Conviction for Escape in the
Second Degree ……………………………………………………………………………9 !3. The Circuit Court Erred in Denying the Defense’s Motion for Mistrial Following the
Prosecutor’s Numerous Misrepresentations of the Burden Of Mens Rea During Closing Argument and Throughout the Case……………………………………………………..11 !
4. The Circuit Court Erred in Providing a Jury Instruction that was a False Statement of the Law and Misleading Before the Jury ………………….………………………………14 !
5. The Government Illegally Violated the Doctrine of Judicial Estoppel by Arguing Mr. Paris and the State had a Contract……...……………………………………………15 !
IV. STANDARDS OF REVIEW 19 ..................................................................................................!V. ARGUMENT…………………………………………………………………………….….22 !
1. The Charge is Fatally Insufficient as the Government Failed to Charge All Attendant Circumstances …………………………………………………………………..……….22 !!
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2. There Was Insufficient Evidence To Uphold Paris’ Conviction For Escape In The Second Degree…………………………………………………………………………..25 !
3. The Circuit Court Erred In Denying The Defense’s Motion For Mistrial Following The Prosecutor’s Numerous Misrepresentations Of The Burden During Closing Argument And Throughout The Case.………………………………………………………………26 !
4. The Circuit Court Sent The Wrong Message To The Jury By Providing An Incorrect Misleading Jury Instruction.……………………………………….…………..28 !
5. The Government Committed Prosecutorial Misconduct by Illegally Violating the Doctrine of Judicial Estoppel by Arguing Mr. Paris and the State had a Contract…………………………………………………………………………………..32 !!
VI. RELEVANT STATUTES, RULES AND CONSTITUTIONAL PROVISIONS 34 ..................
VII. CONCLUSION 34 ...................................................................................................................
!APPENDICES/STATEMENT OF RELATED CASES
!
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!TABLE OF AUTHORITIES
CASES Page
Roxas v. Marcos, 89 Haw. 91, 124, 969 P.2d 1209, 1242 (1998) 17, 33 ............................................
State v. Alston, 75 Haw. 517, 538-39, 865 P.2d 157, 168 (1994) 21 ..................................................
State v. Anger, 105 Haw. 423, 98 P.3d 630, 640 (2004) 2, 4, 16, 17, 33 ............................................
State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996) 22 ..........................................................
State v. Cui, 126 Haw. 266, 269 P.3d 801 (2012) 3, 9, 23, 24 ............................................................
State v. Elliot, 77 Hawai’i 309, 311-12, 884 P.2d 372, 374075 (1994) 23 .........................................
State v. Friedman, 93 Hawai’i 63, 67, 996 P.2d 268, 273 (2000) 22 ..................................................
State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977) 23 ..............................................
State v. Laurie, 56 Haw. 664, 670, 548 P.2d 271, 276 (1976) 29 .......................................................
State v. Loa, 83 Hawai’i 335, 348, 926 P.2d 1258, 1271 (1996) 20 ...................................................
State v. Naeole, 62 Haw. 563, 565, 617 P.2d 820, 823 (1980) 9, 20 ..................................................
State v. Nichols, 111 Hawai’i 327, 334-35, 141 P.3d 974, 981-82 (2006) 21 ....................................
State v. Richie, 88 Haw. 19, 33, 960 P.2d 1227, 1241 (1998) 19 .......................................................
State v. Rogan, 91 Hawai’i 405, 412, 984 P.2d 1231, 1238 (1999) 20, 27 .........................................
State v. Sawyer, 88 Hawai’i 325, 330, 966 P.2d 637, 642 (1998) 22 .................................................
State v. Smith, 59 Haw. 456, 583 P.2d 337 (1978) 3, 8, 25, 28 ..........................................................
State v. Tuua, 125 Hawai’i 10, 14, 250 P.3d 273, 277 (2011) 20, 26 .................................................
State v. Wells, 78 Hawai’i 373, 379, 894 P.2d 70, 76 (1995) 19 ........................................................
State v. Wheeler, 121 Haw. 383, 219 P.3d 1170 (2009) 1, 3, 8, 19, 24 ...............................................
STATUTES Hawaii Revised Statutes § 701-114…………………………………………………………………………………….11, 25
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§ 702-206…………………………………………………………………………………….12, 27 § 710-1000 8, 10, 14, 28, 31 ...............................................................................................................§ 710-1021 ..…………………………………………………………………………2, 7, 8, 10, 30 !!RULES Hawaii Rules of Evidence Rule 103 22 .........................................................................................................................................Rule 401 21 .........................................................................................................................................Rule 403 21 .........................................................................................................................................!Hawaii Rules of Penal Procedure Rule 12 23 ...........................................................................................................................................Rule 52 22 ...........................................................................................................................................!ORDINANCES Revised Ordinances of Honolulu Regulation § 10-1.1 23 ........................................................................................................................!!!!!!!!!!!!!!!!!!!!!!!!!
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!!NO. CAAP-14-0000427 !
IN THE INTERMEDIATE COURT OF APPEALS STATE OF HAWAI’I
!!!OPENING BRIEF OF DEFENDANT-APPELLANT
!I. INTRODUCTION
This case is about a man placed on extended furlough away from jail. On January 11,
2012 he was told to check in with his case worker. Despite following standard procedures to
extend that date, he did not meet his caseworker until his arrest on February 2, 2012. Most of the
facts are not in dispute.
There are five reasons the conviction in this case needs to be vacated. The first is that the
charging document was incomplete, just like State v. Wheeler, 121 Haw. 383, 219 P.3d 1170
(2009).The second is that there was insufficient evidence, as Defendant’s “escape” is actually
STATE OF HAWAI’I Plaintiff-Appellee, !! vs. !!EUGENE PARIS, Jr., also known as Eugene J.E. Rivera, Jr. ! Defendant-Appellant
) ) ) ) ) ) ) ) ) ) ) )
CR NO. 12-1-0191 !APPEAL FROM JUDGMENT, GUILTY CONVICTION AND SENTENCE; NOTICE OF ENTRY; JUDGMENT, filed herein on January 14, 2014; EXHIBITS !CIRCUIT COURT OF THE FIRST CIRCUIT !HONORABLE ROM A. TRADER, JUDGE
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failing to arrive at Laumaka Work Furlough Center, even though his “detention facility” was his
mother’s house. The third reason is that the Prosecutor committed misconduct by arguing to the
jury a “knowing” standard instead of an “intentional” standard woven throughout the trial.
Fourth, the court provided a prosecution jury instruction that violated the province of the jury.
And the final reason is because that the Prosecution prejudicially violated the doctrine of judicial
estoppel by winning a dispositive pre-trial motion with one theory-of-the-case, and then arguing
against that theory all throughout the trial itself, violating of the principles of State v. Anger, 105
Haw. 423, 98 P.3d 630, (2004).
II. STATEMENT OF THE CASE
On February 7, 2012 the State of Hawai’i presented and filed its Felony Information,
charging Defendant-Appellant EUGENE PARIS, Jr. (“Paris”) with Escape in the Second Degree
in violation of Hawaiʻi Revised Statutes (“HRS”) § 710-1021. (Electronic Record of Appeal
(“EROA”): 33. Electronic Docket Number 23.) The Felony Information alleged “on or about the
11th day of January 2012, to and including February 2, 2012, in the City and County of Honolulu,
State of Hawaii, Defendant did intentionally escape from a correctional or detention facility or
from custody, thereby committing the offense of Escape in the Second Degree.” (Id.)
Two substantive pre-trial hearings were held, one each on December 26, 2012 and July 2,
2013. See, generally, Transcripts of the Proceedings (“Tr.”), electronic docket numbers 21 and 29
respectively. A jury trial commenced on October 28, 2013 in the Circuit Court of the First Circuit
(“the circuit court”). (Electronic docket number 34.) On October 30, 2013 the trial concluded.
(Electronic docket number 36.) On the same day the jury returned a verdict of guilty-as-charged.
(EROA: 311. Appendix “A”.) On January 14, 2014 the circuit court sentenced defendant Paris to
5 years imprisonment with credit time served. (EROA at 354.)
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A. Brief Summary of Pre Trial Motions
On December 26, 2012 a motion to dismiss was heard by the circuit court. (Electronic
docket number 21.) The thrust of Defense’s argument was that the Furlough agreement was a
contract and the government needs to be held to the drafted language of the contract. (Id.) The
Government’s argument, among others, was that “with regard to contract, that there was no
contract… it was simply just notice of terms and conditions whether or not he wanted to abide by
them or not”. (12/26/12 Tr. at 5 l.18-22.) The court denied Defense motion. (EROA at 149.) This
becomes important during Motions in limine.
A second motion to dismiss was heard on July 2, 2013. (Electronic docket number 29.)
The purpose of that motion to dismiss was because “custody is an attendant circumstance, which
must be alleged in the Complaint.”(7/2/13 Tr. at 3 l.16-17). Defense cites both State v. Wheeler,
121 Haw. 383, 219 P.3d 1170 (2009) (Id. At l.25) and State v. Cui, 126 Haw. 266, 269 P.3d 801
(2012). (Id. at p.4 l.5). At this motion the circuit court pointed out “the Smith decision”
referencing State v. Smith, 59 Haw. 456, 583 P.2d 337, (1978). (Id. at l.10.) Defense argued this
1978 decision predated both Wheeler and Cui, the cases where the Supreme Court concluded
unequivocally that attendant circumstances must be included in the charging document even if
the language does not necessarily track the statutory language. (Id. at P.6 l.10-20.) The circuit
court decided against Defendant. (EROA at 202-206.)
B. Motions in Limine
On October 28, 2013, before trial began, motions in limine were held. (10/28/13 Tr.) At
that motion in limine Defense requested that the Government be precluded from calling the
Furlough Agreement at issue “a contract” based on the Government’s arguments on the
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December 26, 2012 hearing, the doctrine of judicial estoppel and State v. Anger, 105 Haw. 423,
98 P.3d 630, (2004). (See 10/28/13 Tr. at 22 l.15 to 23 l.22.) This motion was denied.
C. Relevant Portions of Noel Villanueva’s Testimony
Noel Villavueva testified that he is a case manager at the Laumaka Work Furlough Center
(“Laumaka”) at the Oahu Community Correctional Center, employed by the Department of
Public Safety for the State of Hawaii. (10/28/2013 Tr. 190-191.) He testified he was assigned to
Eugene Paris. ( Id. at 192.) Mr. Villanueva testified about the furlough agreement he went over
with Mr. Paris and the procedure he followed to explain the agreement to Mr. Paris. (Id. at 196,
200-213). He said he has the authority to direct an individual to return to Laumaka from
furlough. (Id. at 213.) Mr. Villanueva went over two contracts before the jury and with Mr. Paris.
The first was dated June 14, 2011. (Id. at 197, l.1.) This was entitled the furlough agreement. (Id.
at 195, l.21.) On November 2, 2011 Mr. Villanueva discussed the extended work furlough
contract with Mr. Paris. (Id. at 216, l.23-25.)
The work furlough contract was accepted to the jury as State’s 1 (Id. at 200. EROA at
318-320.) This included terms such as a promise not to use credit cards. (EROA at 319, p.15.),
the cost to destroy the smoke detector in the room (Id. at 320, p. 31.), and a promise to pay $50 if
Defendant’s room key is destroyed. (Id.,33.)
Mr. Villanueva then went on to explain the November 30, 2011 extended furlough
agreement. (10/28/13 Tr. at 215.) This was accepted into evidence as State’s Exhibit 2. (Id. at
218. EROA at 322.) As part of extended furlough, Defendant receives a “notice of
programming”, this is admitted as State’s Exhibit 3 (Id. at 223. EROA at 324-325.) Neither of
these two exhibits use the term “Escape”.
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Mr. Villanueva said Defendant was authorized to live in Wahiawa, and had to check in
every Wednesday at 6 o’clock a.m. (0/28/13 Tr. at 216.) Testifying in depth on the extended
work furlough contract, Mr Villanueva explained specifically the punishment for not following
the conditions of extended furlough, is that “I will take him off extended furlough”. (Id. at
217, l.1-3. Emphasis added.) He then placed the extended furlough contract into evidence as
State’s 2.(Id. at 218.) He also stated Defendant did not report to Laumaka between January 11,
2012 to February 2, 2012. (Id. at 222-223.)
On cross-examination, Mr. Villanueva explained that if Mr. Paris does not initial every
paragraph, he cannot go out on the furlough program. (Id. at 228, l.11-13.) He expressed the
word “escape” appears zero times in the November, extended furlough contract. (Id. at 230.) Mr.
Villanueva expressed a “notice of programming” is given at the same time as the furlough
contract is received, and the word “escape” appears zero times in either document. (Id. at
232-233.) In the November 30, 2011 meeting where Mr. Paris was given the extended
furlough terms, escape was never discussed. (Id. at 234, l.22-24. Emphasis added.) The only
punishment for failing to follow the terms of extended furlough Mr. Paris was informed of on
November 30, 2014 was that “he would not be able to continue his participation on extended
furlough”. (Id. at 234 l.9-13. Emphasis added.)
Mr. Villanueva then said Mr. Paris’ mom’s house would be Mr. Paris’ new place of
detention. (Id. at 235.) Mr. Villanueva clarified that the June 2011 contract stated, in regards to
furloughs, “All cancellations are grounds for my immediate return to the custody of the
Department of Public Safety. (Id. at 240, l.4-9. Emphasis added.). Furthermore, he said the June
2011 contract states in clause number 35 “any deviation from the following: date of validity, time
expiration, destination, and purpose/intent of the furlough pass will result in the processing of a
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high misconduct violation and referred to the adjustment hearing process. This may jeopardize
continued participation in the furlough program and may result in transfer from OCCC
[Oahu Community Correctional Center].” (Id. at 254-255. Emphasis added.)
Finally, Mr. Villanueva expressed that on January 11, 2012 Defendant is the one who
called the case manager at Laumaka Work Furlough Center. (Id. at 257, l.21-22.) He said Mr.
Paris did not need to return until 9 o’clock at night. (Id. at 259, l.9-15.) Mr. Villanueva explained
he knew that Mr. Paris’ father was in a wheelchair, and his mother needed his help to take care of
the dad. (Id. at 258-259.)
D. Relevant Portions of Moses Fonoimoana’s Testimony
Moses Fonoimoana testified he was a sergeant at Laumaka Work Furlough Center,
monitored the inmates on furloughs, and was familiar with Eugene Paris. (10/30/13 Tr. at 7-9.)
On January 11, 2012 Mr. Fonoimoana spoke to Mr. Paris on the phone and told Mr. Paris he
needed to return to Laumaka at “1800”, meaning 6 o’clock p.m. and that Mr. Paris did not return.
(Id. at 9-10.) Mr. Paris is the one who called Mr. Fonoimoana. (Id. at 11, l.11-13.)
On cross-examination Mr. Fonoimoana added that while sometimes he will call a
defendant’s house, in this case, as far as Mr. Fonoimoana knew, no one called the defendant, his
family, or the employer. (Id. at 17-18.)
E. Relevant portions of Waldron Chung’s Testimony
Officer Waldron Chung testified he was working the night of February 2, 2012 on the
Night Enforcement Unit, looking for impaired drivers. (Id. at 19-21.) Mr. Chung pulled over a
White Toyota Corolla (later found to have Mr. Paris driving) for drifted out of his lane. (Id. At
21-23.) Mr. Paris originally gave the name and date of birth of “John J. Rivera”. (Id. at 24.) The
passenger was a female who gave the name “Ardis Dwyer”, later found to have a warrant under
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the name “Ardis Shintaku”. (Id. at 24-25.) Under questioning, Ardis Dwyer then told Ofc.
Waldron Chung that the driver’s true name was Eugene Paris, Jr. (Id. at 25-26.) Ofc. Chung later
discovered that there was a warrant out for Mr. Paris’ arrest. (Id. at 27.) Upon arrest, Ofc. Chung
transported Defendant to Waianae Comprehensive to treat an infection on Defendant’s right hand
characterized as an open wound. (Id. at 30-31.)
Under cross-examination Ofc. Chung testified that upon speaking to Mr. Paris there were
none of the classic signs of intoxication, nor was a Drug Recognition Expert ever called to
ascertain evidence of drug use. (Id. at 37-42.)
III. STATEMENT OF THE POINTS OF ERROR !1. The Felony Information for Escape in the Second Degree was Fatally
Insufficient Because it Failed to Allege the Definition of Detention Facility or Custody.
The Court should have dismissed the Felony Information as defective for being an
insufficient charge by failing to allege all attendant circumstances. The Felony Information
charged Paris with Escape in the Second Degree as follows:
On or about the 11th day of January, 2012, to and including, February 2, 2012, in the City and County of Honolulu State of Hawaii, EUGENE PARIS, Jr. Also known as Eugene J.E. Rivera, Jr. did intentionally escape from a correctional or detention facility or from custody thereby committing the offense of Escape in the Second Degree, in violation of section 710-1021 of the Hawaii Revised Statutes.
EROA at 33-34, and 59-60.
On June 3, 2013 Defense Counsel filed Defendant’s Motion to Dismiss Complaint for
Failure to State An Offense. (See EROA at 177-188.) The argument put forward is that State
failed to allege all essential elements of “Escape in the Second Degree”.
The complaint clearly fails to define what “custody” is. Just as in Wheeler above the definition of both “Custody and “Detention facility” are found in the “definitions” section of the appropriate HRS chapter. Without defining “custody” properly, Defendant has no idea what he is being accused of.
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EROA at 184-185, from Defense Motion to Dismiss.
HRS § 710-1021 defines the offense of Escape in the Second Degree as Follows:
(1) A person commits the offense of escape in the second degree if the person intentionally escapes from a correctional or detention facility or from custody. (2) Escape in the second degree is a class C felony.
HRS § 710-1021 (LexisNexis current through 2014).
HRS § 710-1000 adds the definitions:
(3) “Custody” means restraint by a public servant pursuant to arrest, detention, or order of a court; (4) “Detention facility” means any place used for the confinement of a person: (a) Arrested for, charged with, or convicted of a criminal offense; or (b) Confined pursuant to chapter 571; or (c) Held for extradition; or (d) Otherwise confined pursuant to an order of a court;
Additionally, at the hearing on the motion held on July 2, 2013 the Honorable Judge
suggested a third uncharged Defendant could get convicted of Escape in the second degree,
quoting State v. Smith, 59 Haw. 456, 583 P.2d 337 (1978) (referring to a minor defendant):
And while the facility did not have actual physical control over the minor at the time, he is alleged to have escaped and had control and custody in the sense that the minor was released on furlough, not as a free person but one legally bound by restrictions, end quote. And so I raise that, Mr. Landsberg, because in that particular case the supreme court has construed the term -- excuse me -- "custody" to contemplate the situation that appears to be similar.
Tr. 7/2/13 at 5 L. 6-15.
“In general, where the statute sets forth with reasonable clarity all essential elements of
the crime intended to be punished, and fully defines the offense in unmistakable terms readily
comprehensible to persons of common understanding, a charge drawn in the language of the
statute is sufficient.” State v. Wheeler, 121 Haw 383, 393, 219 P.3d 1170, 1180 (2009) (internal
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quotation marks, brackets, and citations omitted). “However, where the definition of an
offense . . . includes generic terms, it is not sufficient that the indictment shall charge the
offense in the same generic terms as in the definition; but it must state the species . . . and
descend to particulars.” Id. (internal quotation marks and citations omitted. Emphasis added).
See also Cui (holding that a the generic definition of public park in a criminal case is not the
statutory definition, and therefore needs to be charged.)
The Court denied the motion to dismiss on July 2, 2013. (7/2/13 Tr. at 12, l.5-22.) The
Order was filed denying the motion. (EROA at 202-206. See Appendix “B”.)
2. There Was Insufficient Evidence To Uphold Paris’ Conviction For Escape In The Second Degree. !
Substantial evidence is credible evidence, which is of sufficient quality and probative
value to enable a person of reasonable caution to reach a conclusion. State v. Naeole, 62 Haw.
563, 565, 617 P.2d 820, 823 (1980). There is absolutely no evidence that Mr. Paris was doing
anything other than remaining at the detention facility that is his mom’s house. Even if the jury
believed that Mr. Paris never returned to the prison, there is no evidence that he ever left the
detention facility. Thus, the State’s evidence was not of sufficient quality and probative value to
enable a person of reasonable caution to conclude that Paris escaped a detention facility in this
case.
The government failed to provide substantial evidence for his escape from the detention
facility as no evidence was elicited Mr. Paris ever left his assigned detention facility
The Felony Information alleged the following:
On or about the 11th day of January, 2012, to and including, February 2, 2012, in the City and County of Honolulu State of Hawaii, EUGENE PARIS, Jr. Also known as Eugene J.E. Rivera, Jr. did intentionally escape from a correctional or detention facility or from custody thereby committing the
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offense of Escape in the Second Degree, in violation of section 710-1021 of the Hawaii Revised Statutes. !
While the state may choose to focus on the activity of “escaping from custody”, the
defendant having never escaped from his actual detention facility, his “place of detention” would
be a fundamental defense to the charge as written.
Detention facility is defined (in relevant part) as “any place used for the confinement of a
person: (a) Arrested for, charged with, or convicted of a criminal offense;… (d) Otherwise
confined pursuant to an order of a court.” (HRS § 710-1000. Emphasis added)
On October 28, 2014 Noel Villanueva, the case worker the Government called to testify
as to defendant’s place of detention, testified:
Q. And that's the day he was allowed to -- well, a few days after is -- but that's the date when it was okay that he was allowed to move into his mom's house? A. Yes. Q. And his mom's house would become his new place of detention? A. Yes. Q. And that's where he would stay? A. Yes. (10/28/13 Tr. at 235 l.1-9.)
All of the evidence presented was that Mr. Paris remained at his mother’s house from
January 11, 2012 to February 2, 2012. There has been no evidence, credible or otherwise, that
Defendant ever did not remain at his Detention Facility or at his job. Defense made a motion for
judgment of acquittal based on this issue:
It was defined as a detention facility by the State's witnesses not by anybody on this side. By the State's witnesses it was defined as a detention facility, and he never left, as far as anybody knows. There's no evidence that he ever left it… we’d ask the Court to grant our judgment of acquittal at this time. (10/30/13 Tr. at 50 l.21-25, p.51 l.1-6.) !The Court denied the motion for acquittal. (Id. at 51, l.11.) !
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Furthermore, the government misled the jury during closing arguments by encouraging
the jurors to ignore elements:
I want to point your attention to the word "or." The State does not need to prove all three, that the defendant escaped from a correctional facility, detention facility, and from custody. State is going to prove this by focusing on the defendant escaped from custody. So we can cross out correctional facility, detention facility, and we're just going to look at the defendant escaped from custody. Id. at 106 l.18-25.
Clearly the prosecution does not need to prove that a Defendant escaped all three types of
facilities concurrently, or consecutively. in the manner of this escape, where the prosecution is
not alleging an action, but actually a “failure to return”, being at the “place of detention” is
clearly a element the Government is required to negative through some fact or testimony as no
person may be convicted of an offense unless each element of the offense are proved beyond a
reasonable doubt. HRS § 701-114.
Remaining at a “correctional or detention facility” would acquit Defendant of the charge.
Therefore the State must negative any evidence that Defendant was at a place that met the legal
definition of a detention facility.
3. The Circuit Court Erred In Denying The Defense’s Motion For Mistrial Following The Prosecutor’s Numerous Misrepresentations Of The Burden During Closing Argument And Throughout The Case.
! The circuit court erred in denying the defense’s motions for mistrial inasmuch as the
prosecutor’s misconduct during closing argument deprived Paris of due process and a fair trial.
U.S. Const. amend. V, VI, XIV; HI Const. art. I, §§ 5, 14.
Defense made a motion for a mistrial, or in the alternative a motion to inform the jury of
the “knowing” jury instruction. (10/30/13 Tr. at 114 l.24 to 115 l.11.) The circuit court denied
both parts of the motion “To the extent you feel it prejudices your client, then a motion for a
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mistrial was made. I’ll also deny that motion.” (Id. at l.16-23.) The explicit mens rea for the
instant charge is intentionally. The Government in this case presented no evidence of
intentionally and argued the standard for “knowingly” throughout the case.
(1) “Intentionally.” (a) A person acts intentionally with respect to his conduct when it is his conscious object to engage in such conduct. (b) A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes or hopes that they exist. (c) A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. !(2) “Knowingly.” (a) A person acts knowingly with respect to his conduct when he is aware that his conduct is of that nature. (b) A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist. (c) A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Hawaii Revised Statute § 702-206 !
The record is replete of instances where the prosecutor argued “knowingly” instead of
“intentionally”. The prosecutor never once talks about acts, he only talks about what the
defendant understood, knew, or was “crystal clear” about:
[I]t’s absolutely clear that the furlough agreement is in full effect during the entire period the defendant is on furlough, whether it be regular furlough or the -- another privilege, extended furlough. It's absolutely crystal clear. And that's why Mr. Villanueva goes through the terms, makes sure he answers any questions that the defendant has. That's why the defendant initials and signs. (10/30/13 Tr. at 108 l.17-25. Emphasis added.) !It's abundantly clear the defendant has to check in with Mr. Villanueva at Laumaka every Wednesday at 6:00 A.M. How do we know that it is clear the defendant absolutely understood this? (Id. at 109 l.25 to 110 l.1-4. Emphasis added.) !!
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He knew crystal clear where he needed to be, number 1, to meet with Mr. Villanueva and, number 2, to get another extended furlough pass. (Id. l.10-13. Emphasis added.) !He understood and agreed that when called he needed to return back to Laumaka in a timely manner. (Id. l.18-20. Emphasis added.) !He ignored -- he refused to return, he ignored Mr. Villanueva, he ignored Mr. Fonoimoana, he lied to Officer Chung, and he was gone completely in the wind, no oversight whatsoever for 22 days. (Id. at 112 l.7-11. Emphasis added.) !
The Prosecuting Attorney did not wait until closing argument to suggest the wrong
standard. In opening statement as well the Prosecuting attorney discussed Defendant’s
understanding rather than the Defendant’s conscious object: “[T]he defendant acknowledges
that he understands if he is contacted by any employee at Laumaka Work Furlough Center and
told he needs to come back and report immediately he must do so.” (10/28/13 Tr. at 176, l.1-4.
Emphasis added.)
Otherwise, all of the evidence elicited from the State’s witnesses is that the topic of
“escape” was not discussed even once during the November 30, 2011 meeting when Defendant
was given the terms of Extended Furlough. He was told failure to follow those terms would
result in being taken off extended furlough. (See Villanueva’s testimony supra.) This confusion
of the standards persuaded the jury that “knowledge” was enough, and convicted Mr. Paris
accordingly.
!!!
� !13
4. The Circuit Court Erred In Overruling The Defense’s Objection And Providing A Jury Instruction That Was A False Statement Of The Law And Misleading Before The Jury.
! The prosecution proposed a jury instruction which the circuit court delivered to the jury
as modified to the following instruction:
An escape may be perpetrated by a person even though he is not in actual physical custody or under immediate control and supervision of a guard. A person may be deemed to be in custody when released from a correctional or detention facility on furlough and legally bound by restrictions.
10/30/13 Tr. at 100 l.25-p.101 l.5.
Defense objected to this instruction extensively:
It takes two sentences not only out of order, because they come in out of order in the way it's written in here; it takes two sentences which are not only out of order but out of context. They're from two entirely separate paragraphs, two entirely separate sections. What they end up doing -- entirely separate sections. And what they end up doing is they put them together in such a way as to say a person is in custody when released from a correctional or detention facility on furlough and legally bound by restrictions… What they did is wait until the end for us to argue over it, and now we're stuck in this -- asking the Court and the Court saying it's going to decide that -- this Court is going to inform this jury Mr. Paris was in custody, which takes the full I mean, that's -- well, one third of the elements. The other element is was it him, and the third element is did he escape. So it takes the entire one third of the elements out of the hands of the jury. And quite frankly, since this talks about -- the way this talks about it, it really takes the whole thing out of the presence of the jury. Why would the jury read this and come to any other conclusion, except that Mr. Paris, one, was in custody and, two, wasn't -- wasn't where he was supposed to be.
10/30/13 Tr. at 76-79 (excerpt here.)
The jury instruction is an incorrect statement of fact, rather than a statement of law for the
jury. It removes judgment of the case from the hands of the jury and instructs them to find a
verdict where Defendant must have been in custody at the time. Furthermore, it expands the
statutory definition of “custody” to include not just the definitions included in HRS § 710-1000,
but also other terms and conditions that may be conditions “of custody”, but not custody itself.
� !14
“That will be given, over the objection of both the State and the defendant, as modified.”
was the final ruling of the court. (10/30/13 Tr. at 80, l.21-22.)
5. The Government illegally violated the doctrine of judicial estoppel by arguing
Mr. Paris and the State had a contract.
The circuit court ignored the doctrine of judicial estoppel and allowed the Office of the
Prosecutor to argue diametrically opposed positions away from the jury and in front of the jury.
On December 26, 2012, at a pre-trial motion in the instant case the Government argued,
“Also, with regard to contract, the State would argue that there was no contract, no legal
consideration that was given or made by the defendant in this case, it was simply just notice of
terms and conditions whether or not he wanted to abide by them or not.” (12/26/12 Tr. at 7 l.
18-22. Emphasis added.)
Defense counsel at the time responded,
— it's ridiculous for him to say there's no contract. I mean, the contract is attached to the motion, it is a contract. The consideration that he gives is an attempt to -- to rehabilitate himself and conform himself to become a productive member of the community. It is a contract and contracts have to be interpreted, ambiguous contracts have to be interpreted in the light most favorable to the nondrafting party. Id. at l.10-17 !
The Court immediately denied the motion. (Id. at 7. EROA 149-150.
Order attached as Appendix “C”.)
For trial preparation, defense arrived prepared to argue this case as a “terms and
conditions”-type case, as if there was no contract. This was based on Prosecutor’s arguments of
December 26, 2012 and the court’s ruling on the same day. On October 28, 2013 Defense made
an oral motion in limine in response to the Government’s morning discussions:
� !15
But based on hearing our arguments and our discussion this morning, it's my understanding -- and maybe I'm wrong, so stop me if I am. My understanding is the State is going to argue there was a contract between Mr. Paris and the government in this case. On December 26, 2012, the State came before the Court in a hearing with … Mr. Schoettle the State argued, With regard to contract, the State would argue there was no contract; no legal consideration was given or made by the defendant in this case. I have a copy of the transcript. As well as State v. Anger, 105 Haw. 423, which quotes -- let me get it so I'm not misquoting it…. Basically it says the State cannot hold inconsistent arguments based on -- basically, based on the mood or based on -- a party will not be permitted to maintain inconsistent positions or to take a position with regard to a matter which is directly contrary to or inconsistent with one previously assumed by him, at least where he had or is charged with full knowledge of the fact and another will be prejudiced by his action. So in this case, based on State v. Anger, which is a criminal case, as well as what State v. Anger quotes, as well as the prior hearing between Mr. Schoettle and Mr. Anderson from the Prosecutor's Office, I don't believe they can ever call this a contract. Their stance today has to be there was no contract, that there was no consideration. 10/28/13 Tr. at 22-23. !
The Court delayed ruling on the issue until much of voir dire had been completed. At that
time Defense was given an opportunity to supplement the record and added:
For now, and based on the voir dire, this whole case is going to be about a contract. I entered into this case this morning not realizing I was entering into a contract matter. If I had to do contract research or promissory estoppel or something, maybe I would have had to do that. The problem here is, that for the State now to completely switch on a prior argument which they made and argue literally the exact opposite point, that what he did was violate a contract, I think that rises to the level of prosecutorial misconduct, and I think the case should be dismissed at this time, if that's their intention, to argue that throughout this case. Id. at 156 l.13-24. Emphasis added. !
The court then discussed the doctrine of judicial estoppel discussed in State v. Anger, 105
Haw. 423, 98 P.3d 630 (2004).
There are cases on the books, and I don't readily recollect any at this point, but certainly over the years I've come across at least a couple where the Prosecution -- and these aren't Hawaii cases, mind you -- cases in which the Prosecution had literally switched its argument such that -- like, for example,
� !16
a murder case where they're alleging one defendant was responsible for killing the victim and then -- and a subsequent trial with the co-defendant which had been severed making arguments that it wasn't the other individual but it was, in fact, the defendant on trial. And that's the kind of situation judicial estoppel is designed to prevent, because it's fundamentally unfair. 10/28/13 Tr. at 157 l.12-25.
Finally the court ruled:
But be that as it may, the Court will deny the request to the extent that you're seeking to prevent or stop the State from essentially raising that as an argument or introducing evidence that might be consistent with that. So your position is preserved. Id. at 159 l.10-14. !
Defense raised the objection again to preserve the record as the prosecutor asked a great
number of questions about this “contract”.
[Prosecutor]. What is a furlough agreement? A. A furlough agreement is a contract. It's a contract. It's an agreement between the inmate and the Public Safety. Q. Now, is -- MR. LANDSBERG: Object. Your Honor, I just want to renew my objection that we spoke about before. THE COURT: All right. Objection is overruled. Your position is preserved. And to the extent, would you like a running objection on this point? MR. LANDSBERG: Correct, Your Honor. THE COURT: Very good. Granted. Tr. at 194-195. Emphasis Added. !
The doctrine of judicial estoppel states:
[a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action. State v. Anger, 105 Haw. 423, 433, 98 P.3d 630, 640 (2004) quoting Roxas v. Marcos, 89 Haw. 91, 124, 969 P.2d 1209, 1242 (1998) (citation omitted). !
The violation here is an obvious one. The prosecution made an about face from winning a
motion on December 26, 2012 due to their argument that there was no contract, into basing their
� !17
entire trial on the stance that this whole furlough scheme is based on contracts. Had Defense
been aware of the need to prepare contract arguments and contract voir dire, Defense’s
presentation of the case would have been fundamentally different. As such, relying on the
Court’s December 26, 2012 ruling on precisely this issue inhibited defense from properly
preparing for the trial, once the prosecution did an about-face with their position. This created a
trial-by-ambush, and Mr. Paris was the one caught flat-footed.
Furthermore, if the Prosecution’s position is that they have switched positions, and there
is a contract present, then they are functionally reneging on their December 26, 2012 argument
and have no other argument against the motion to dismiss. Mr. Paris’ charge should be dismissed
as of December 26, 2012.
By allowing the Prosecution to maintain a position directly contrary to one previously
assumed by their office in the same prosecution, Defendant was not able to properly prepare a
legal defense as Prosecution did not stand by previous representations they made on record
before the court. As such, Defense was prejudiced by being forced to defend, with no notice,
against a argument the Government had affirmatively abandoned two years previously.
Defense was doubly prejudiced, as they lost the December 26, 2012 Motion to Dismiss
base on the Goverment’s prior position, and then as soon as they won and it suited the
Prosecution, they abdicated that position and flipped to the position they just stood diametrically
against.
!!!!
� !18
IV. STANDARDS OF REVIEW !1. Sufficiency of a Charging Instrument (Point one). !
“Whether an indictment sets forth all the essential elements of an offense to be charged is
a question of law, which the appellate court reviews under the de novo, or right/wrong,
standard.” State v. Wells, 78 Hawai‘i 373, 379, 894 P.2d 70, 76 (1995) (internal quotation marks
and brackets omitted).
On the instant facts, Paris clearly objected to the sufficiency of the charge before, during
and after trial. If this Court determines Paris did not adequately object to the sufficiency of the
charge at trial, then the liberal construction standard would apply.
Under the Motta/Wells post-conviction liberal construction rule, [appellate courts] liberally construe charges challenged for the first time on appeal. Under this approach, there is a presumption of validity, for the charges challenged subsequent to a conviction. In those circumstances, [an appellate] court will not reverse a conviction based upon a defective indictment or complaint unless the defendant can show prejudice or that the indictment or complaint cannot within reason be construed to charge a crime. However, the rule does not apply when reviewing timely motions challenging the sufficiency of an indictment. !
State v. Wheeler, 121 Haw. 383, 399-400, 219 P.3d 1170, 1186-87 (2009) (internal
citations and quotation marks omitted.)
2. Sufficiency of Evidence (Point two).
In reviewing a defendant’s claim of insufficient evidence for conviction, the appellate
court considers the evidence adduced in the trial court “in the strongest light for the prosecution .
. . . The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether
there was substantial evidence to support the conclusion of the trier of fact.” State v. Richie, 88
Haw. 19, 33, 960 P.2d 1227, 1241 (1998) (citation omitted). Substantial evidence is credible
� !19
evidence, which is of sufficient quality and probative value to enable a person of reasonable
caution to reach a conclusion. Naeole, 62 Haw. at 565, 617 P.2d at 823.
3. Prosecutorial Misconduct (Point three and five).
The Hawai‘i Supreme Court “evaluates claims of improper statements by prosecutors by
first determining whether the statements are improper, and then determining whether the
misconduct is harmless.” State v. Tuua, 125 Hawai‘i 10, 14, 250 P.3d 273, 277 (2011) (citation
omitted). “Allegations of prosecutorial misconduct are reviewed under the harmless beyond a
reasonable doubt standard, which requires an examination of the record and a determination of
whether there is a reasonable possibility that the error complained of might have contributed to
the conviction.” State v. Rogan, 91 Hawai‘i 405, 412, 984 P.2d 1231, 1238 (1999) (internal
quotation marks and citation omitted). Factors to consider are: (1) the nature of the conduct; (2)
the promptness of a curative instruction; and (3) the strength or weakness of the evidence against
the defendant.” Id. (citation omitted). “Misconduct of a prosecutor may provide grounds for a
new trial if there is a reasonable possibility that the misconduct complained of might have
contributed to the conviction.” Id.
4. Denial of Mistrial (Points of Error three, four and five).
“When prosecutorial misconduct is the basis for a motion for mistrial, a new trial is
warranted only where the actions of the prosecutor have caused prejudice to the defendant’s right
to a fair trial.” State v. Loa, 83 Hawai‘i 335, 348, 926 P.2d 1258, 1271 (1996) (internal quotation
marks and citations omitted). The denial of a mistrial is reviewed for abuse of discretion. Id.
“An abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the substantial detriment of a party-litigant.”
Id.
� !20
5. Admission of Evidence (Point five).
Different standards of review must be applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue. Trial court determinations made pursuant to HRE 401 are reviewed under the right/wrong standard of review. On the other hand, decisions made under evidentiary rules requiring a “judgment call” are reviewed for abuse of discretion. Specifically, the abuse of discretion standard applies to a trial court’s resolution of a HRE 403 objection . . . . An abuse of discretion occurs where the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. !
State v. Alston, 75 Haw. 517, 538-39, 865 P.2d 157, 168 (1994) (emphasis added, internal
citations and quotation marks omitted).
6. Jury Instructions (Point three and four).
When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. However, error is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgement of conviction on which it may have been based must be set aside. !Where instructions were not objected to at trial, if the appellant overcomes the presumption that the instructions were correctly stated, the rule is that such erroneous interactions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.
State v. Nichols, 111 Hawai’i 327, 334-35, 141 P.3d 974, 981-82 (2006) (internal
citations, quotation marks, indentations, brackets and paragraphing omitted).
!!
� !21
7. Statutory Interpretation(all points)
“The interpretation of a statute is a question of law reviewable de novo.” State v. Arceo,
84 Hawai‘i 1, 10, 928 P.2d 843, 852 (1996) (citations omitted).
8. Constitutional Questions (all points)
This Court answers questions of constitutional law by exercising its own independent
constitutional judgment based on the facts of the case. Thus, this Court reviews questions of
constitutional law under the right/wrong standard. State v. Friedman, 93 Hawai‘i 63, 67, 996 P.
2d 268, 273 (2000).
9. Plain Error (all points).
Plain errors, defects affecting substantial rights or errors which seriously affect the
fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to
prevent the denial of fundamental rights may be noticed although they were not brought to the
attention of the trial court. State v. Sawyer, 88 Hawai‘i 325, 330, 966 P.2d 637, 642 (1998)
(citation omitted); see also HRPP Rule 52(b); Hawaii Rules of Evidence Rule 103(d).
V. ARGUMENT !1. The Charge is Fatally Insufficient as the Government Failed to Charge All
Attendant Circumstances. !
In reference to an objection about the Prosecuting Attorney’s opening statement the
honorable judge presiding stated at a bench conference: “There’s the legal term custody, and
custody in the general sense which means confinement”. (10/28/13 Tr. at 177 l.23-25. Emphasis
added.) Right there, he stated the Defense position in a nutshell.
In this case “custody” and “detention facility” are attendant circumstances and must be
pled. The problem being they are charged in their generic meanings, and not in the legal species
� !22
and particulars that are necessary to understand the true meaning of the charge. Most clearly, the
definition of ‘“custody” enforced in this trial is not necessarily consistent with the commonly
understood meaning of custody that is “confinement”. (See circuit court’s discussion of this,
10/28/13 Tr. at 177 l.23-25.) In short, Defendant was unaware of what he was being tried for.
(See, State v. Cui, 126 Haw. 266, 269 P.3d 801 (2012), "public park" as defined by ROH § 10-1.1
is not necessarily consistent with its commonly understood meaning in that it is limited to parks
"under the control, maintenance and management of the department of parks and recreation.”)
By failing to allege any specific definition of “custody” or “detention facility”, the charge
failed to state the offense of Escape in the Second Degree. In the alternative if the state meant to
proceed on a “failure to return” theory, that should be in the charging document. Either way, the
charge is deficient for lack of attendant circumstances and the case must be dismissed.
It is well settled that:
The accusation must sufficiently allege all of the essential elements of the offense charged. This requirement obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint, and the omission of an essential element of the crime charged is a defect in substance rather than of form. A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process. This requirement may not be waived or dispensed with, and the defect is ground for reversal, even when raised for the first time on appeal. !
State v. Elliot, 77 Hawai'i 309, 311-12, 884 P.2d 372, 374075 (1994) (citing State v. Jendrusch,
58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977) (emphasis added, citation omitted). In this case
the objection to the charging was raised before trial began via Hawaii Rules of Penal Procedure
Rule 12. (EROA at 177-189. 7/2/13 Tr.)
!
� !23
There are multiple meanings of custody, and custody in this law is not the same as
custody in the general sense of the term, or even custody as used throughout the law in different
sections. As “custody” is an attendant circumstance, and the legal term and the general sense of
the word are different, the definition must be pled in the charging instrument. As the charging
instrument in the instant case makes no difference between the legal term and the general sense
of the word, the charging instrument is insufficient and therefore the case must be dismissed for
lack of jurisdiction. (See, Wheeler; Cui.)
Here, by the end of trial the charge alleged was actually “failing to return to a location”,
further illustrating the surprise nature of the uncharged attendant circumstances. A person of
ordinary understanding would have no idea with what they were actually being charged with. In
this case Mr. Paris did not realize that he was being charged with “failure to return”. Therefore
the definitions of custody, detention facility, and the terms of “failing to return” are essential
elements that need to be alleged in a prosecution such as this one for Escape in the Second
Degree.
Because the Felony Information failed to allege the necessary attendant circumstances
necessary for a person of ordinary intelligence to comprehend an Escape in the Second Degree
charge, it failed to allege all of the essential elements of the offense. Accordingly, the Felony
information failed to state the offense of Escape in the Second Degree, the trial court lacked
jurisdiction to preside over the charge of Escape in the Second Degree therefore Paris’ conviction
based on the charge cannot be sustained. The trial court clearly erred when it denied Paris’
Written Motion to Dismiss for Failure to State an Offense, as well as the subsequent renewed
oral motions during the trial, and this defect in the charge is grounds for reversal by this Court.
See State v. Wheeler, 121 Hawaii 383, 392, 219 P.3d 1170, 1179 (2009) (holding that where a
� !24
charge lacked an allegation of an attendant circumstance, which is an element of the offense, it
failed to state the offense and was fatally defective)
2. There was Insufficient Evidence to Uphold Paris’ Conviction for Escape in the Second Degree. !
“[N]o person may be convicted of an offense unless the following are proved beyond a
reasonable doubt: (a) Each element of the offense;” HRS § 701-114. In the instant case, one of
the elements is “escape from a correctional or detention facility or from custody”. Yet, the
defendant never changed his location, he was at the detention facility he was placed at. (10/28/13
Tr. at 235 l.1-9.) The record is absent as to any information that he ever left the recognized
detention facility. “In the absence of the proof required by subsection (1), the innocence of the
defendant is presumed.” HRS § 701-114.
The Prosecution is attempting to instead play a shell game, switching rules on Defendant
mid-stream. In fact, the Prosecution tells the jury to ignore the presence of the words “detention
facility” in the jury instructions. (10/30/13 Tr. at 106, l.18-25.) Functionally their position is that
the detention facility and correctional facility locations are always irrelevant, if custody location
is changed via case worker fiat. This is in spite of the fact there is no record Defendant is told
that it is time to move out of his mother’s house and back into Laumaka. This is in spite of the
fact that Defendant never actually moved locations of detention facility.
The prosecution neither proved escape nor proved a failure to return derived from State v.
Smith, 59 Haw. 456, 583 P.2d 337, (1978). In the Smith case, the juvenile Defendant had only
one place of detention, at Hawaii Youth Correctional Facility. He was given a deadline to return
to the facility where he was then being held. He failed to return.
� !25
Mr. Paris was actually detained at his mother’s house. The Government wanted to change
his custody status but never yet informed Defendant. This is not an escape from the detention
facility, it is a violation of the term and condition about attending appointments. If a furloughee
were to destroy a smoke detector in Laumaka he could be charged with a violation of a term and
condition, but it would not be an escape. (EROA at 320.) Compare here, Defendant violated a
term, but he did not “escape” a detention facility. All evidence points to him being present at the
facility.
This logic is the same reason why the November 30, 2012 contract doesn’t contemplate
“escape” for failing to return. The worst penalty threatened is termination from the program.
Defendant may have violated a term, but if they cannot prove that he “escaped” the detention
facility he was assigned. He must be presumed innocent and the charge must fail for insufficient
proof. If the charge was “failure to follow all terms and conditions” defendant may be guilty, but
the charge is Escape in the Second Degree, and detention facility is one of the places he is
allowed to remain. The punishment he should endure is the one for failing to follow an order of a
case worker, not a felony Escape charge.
3. The Circuit Court Erred In Denying The Defense’s Motion For Mistrial Following The Prosecutor’s Numerous Misrepresentations Of The Burden During Closing Argument And Throughout The Case.
During closing argument, a prosecutor is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence. Although a prosecutor has wide latitude in commenting on the evidence during closing argument, it is not enough that . . . his comments are based on testimony in evidence; his comments must also be legitimate. A prosecutor’s comments are legitimate when they draw reasonable inferences from the evidence. Finally, it is generally recognized under Hawai‘i case law that prosecutors are bound to refrain from expressing their personal views as to a defendant’s guilt or the credibility of witnesses.
State v. Tuua, 125 Hawai‘i 10, 14, 250 P.3d 273, 277 (2011) (internal quotation marks and
citations omitted).
� !26
The prosecutor’s argument is likely to have significant persuasive force with the jury. Accordingly, the scope of argument must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor’s conduct. Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s office, but also because of the fact-finding facilities presumably available to the office.
State v. Rogan, 91 Hawai‘i 405, 413, 984 P.2d 1231, 1239 (1999) (quoting ABA
Prosecution Function Standard 3-5.8(a) (1993)).
“A person acts intentionally with respect to his conduct when it is his conscious object to
engage in such conduct.” HRS § 702-206
The Prosecution decided they could not prove an affirmative act of escape, so the best
way to argue this case was to talk about what the defendant “knew” and “understood”. The
prosecutor never once discussed what was the Defendant’s conscious object to escape or the
conduct involved. The closest the Government ever got was saying that “You don't have to ride a
motorcycle out of the walls of a correctional facility to escape.” (10/30/13 Tr. at 109 l.7-8.) He
then argues a knowing burden immediately after “This law is designed specifically to prohibit
the kind of conduct this defendant engaged in when he blew off supervision and decided on his
own accord that he was done with his sentence.” (Id. Emphasis added.) This shifting of the
levels of intent necessary to prove the case lowers the burden for the jury and sends to them the
message that the Defendant need only “understand” he needs to return, not that he needs to have
the conscious object to escape.
The false name given to Ofc. Chung is not indicative of intentionally escaping custody,
but rather trying to avoid a new arrest. Being arrested would be a violation of the terms and
conditions, just like lying to a law enforcement officer is a violation of the terms and conditions.
But neither of those are an escape from custody. No matter Defendant’s knowledge.
� !27
Defendant has a right to have his case proven beyond a reasonable doubt as the the
elements alleged. By charging intentionally, and then arguing, and proving, only knowingly,
Defendant was deprived of the right of a fair trial as the proper mens rea was not proven. State’s
arguments conflate knowledge of the terms and conditions, with intention to escape a detention
facility. While this may be a revocable offense, it is not Escape in the Second Degree.
4. The Circuit Court Sent The Wrong Message To The Jury By Providing An Incorrect Misleading Jury Instruction. ! The added jury instruction invaded the province of the jury and directed the jury on
factual, not legal, matters. The statutory definition of custody is clear enough, and is clearly
applicable in the instant case. Furthermore, both the Prosecutor and the judge agreed that the
statutory definition of custody was readily clear on July 15, 2013 when the judge signed an order
including the phrase, “7. Based on the foregoing, this Court concludes that the term "custody," as
defined in H.R.S. § 710- 1000(3), is an unmistakable term readily comprehensible to a person of
common understanding.” (EROA at 205.) Following the Law of the Case, was no reason to
“clarify” custody further by adding this jury instruction.
It is disingenuous to say the term “custody” is readily apparent to a Defendant to
understand what he is being charged with (see Argument 1, supra.) but it is obtuse enough that a
jury needs an additional instruction to comprehend.
The jury instruction is derived from two unconnected sentences in State v. Smith, 59
Haw. 456, 583 P.2d 337 (1978). In Smith, a juvenile defendant is released from Hawaii Youth
Correctional Facility to return the same day at 7:00 pm and fails to do so. In Smith, the
Defendant had a written pass, never called in, never made arrangements to come later, and failed
to return multiple times.
� !28
! Paris, on the other hand was actually detained at his mother’s house, and only had to
check in weekly at the Laumaka facility. Mr. Paris made a minimum of two calls (one each to
witnesses Villanueva and Fonoimoana as required by policy, 10/28/13 Tr. at 214 l.10-17). Paris
was given permission to return late by both men. No pass (nor any record of a pass being issued)
was ever produced by the government, only that generally passes are issued each week (Id. at
220, l.15-24.), yet would have been rendered moot as Defendant followed proper procedures by
calling in and was granted permission to come back at a later hour. (Cf. State v. Laurie, 56 Haw.
664, 670, 548 P.2d 271, 276 (1976) where prosecution witnesses testified that on the date of the
incident in question, appellant carried a pass card which had the curfew time printed upon it and
that he was not given permission to return late.) Furthermore, without explanation as to the
reason Paris was late, he expressed that he would accept Paris back “As late as 9:00
pm.” (10/28/13 Tr. at 259, l.9-15.)
By issuing this jury instruction, the Court functionally informed the jury to consider the
Defendant on furlough status, and that there is no difference between furlough, and extended
furlough. By informing a jury about what a defendant must do while on furlough, and not
clarifying that extended furlough may, or may not, be an entirely separate set of rules, it informs
the jury that Defendant is bound by the June 14, 2011 furlough agreement in toto. This is the
court invading the province of the jury and issuing a jury instruction directing fact, not law.
The other problem with this jury instruction is that it sends the message that a person can
be found guilty of Escape in the second degree for any violation of a term or condition. This jury
instruction sends the message that you are in custody if you are bound by restrictions. The
� !29
contrapositive to this is that if you break restrictions, then you are no longer abiding in custody.
Functionally you have escaped. This is not true.
It is undisputed that if defendant violates the terms such as destroying the detector or
losing the key, he has not “escaped” custody. (EROA at 320.) To say “A person may be deemed
to be in custody when released from a correctional or detention facility on furlough and legally
bound by restrictions.” A person of this category who is not following restrictions is not abiding
by the rules of custody. But these restrictions are a part of custody that do not rise to the level of
escape. Mr. Paris’ entire defense was that he violated restrictions but did not “escape” from
custody. This jury instead receives an instruction that says any violation of a restriction is
tantamount to no longer being in custody. Hence Mr. Paris is denied his right to a fair trial.
The root of this case was introduced only as subtext at trial. The prosecution basically
argued the level of when a violation of a term of parole rise to the level of escape. As one of the
terms and conditions of Defendant Paris’ extended furlough was “To report in person every week
to the CM/UM for feedback.” (EROA p. 322, sec. B p. 4.) The Prosecution’s argument is, by
failing to report to Laumaka, Defendant has “escaped” from the custody of Laumaka.
Of course, the answer to “when does a violation of a term of parole rise to the level of
escape” is easy: never.
Escape in the Second Degree is defined by the HRS § 710-1021 as occurring if the person
intentionally escapes from a correctional or detention facility or from custody. These elements,
along with the relevant attendant circumstances (see Point of Error 1, supra.) are the only rules
that govern when a Defendant’s activity becomes escape. No amount of contracts, restrictions, or
terms and conditions restrict the actions of a Defendant to define escape, only how he treats his
responds to the correctional or detention facility and custody.
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The jury instruction at issue reads “A person may be deemed to be in custody when
released from a correctional or detention facility on furlough and legally bound by restrictions.”.
10/30/13 Tr. at 100 l.25-p.101 l.5. The purpose of this instruction, conceivably, is to explain to
the jury that just because a prison guard is not standing next to you, you may still be in custody.
The definition of custody, on the other hand, is “restraint by a public servant pursuant to arrest,
detention, or order of a court”. HRS § 710-1000. The ordinary meaning of “restraint” is not
“confinement”, and the legal definition of custody should be enough for jury to understand that a
prison guard doesn’t need to be present to be in “custody”, you simply need to be under restraint
pursuant to the relative steps. If the government followed these steps is for the Prosecutor to
prove, not for the judge to take judicial notice of. These steps are based in fact, the judge on the
other hand, can recognize what those steps are, the Prosecutor has to prove those steps were met
beyond a reasonable doubt to a jury. The judge instructing the jury those steps are met, denies the
Defendant a fair trial.
Here the jury instruction expands the definition of “escape” to any number of situations
where someone may be breaking a rule, but not committing criminal Escape. For example, one
of the conditions of the extended furlough is “To maintain full legal employment during the
duration in the Extended Furlough Program.” (EROA at 322, section B p. 3.) Now, businesses
close, managers have bad judgment, economies have downturns all of which may affect
employment situations. And while losing your job may be a violation of a term and condition,
clearly we would not consider it an escape. Under this formulation of a jury instruction, violating
a restriction on losing your job, is a violation of the furlough agreement, and therefore you have
“escaped” custody. By doing something that your furlough agreement does not allow, you go
over and outside what “custody” has been defined for you. But no one would think losing your
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job due to the economy, and handling it the right way, should be considered an “escape” from
custody.
In the instant case, Defendant failed to check in with a case worker. He was never told
that he had a new “detention facility”, and that lack of information is reflected in the record by
its absence. As far as he knew, following procedure by calling in to the people he was supposed
to call in to, and then missing the weekly check-in time, he wasn’t “escaping” custody under the
law, he simply failed a term and condition, which is expected, which is why the contracts explain
what happens when a term and condition is violated. That should be the punishment, not felony
escape.
This jury instruction precludes the jury from considering this issue. It instructs that by
violating a term of furlough, Defendant is not following legal restrictions, and therefore has
escaped. this jury instruction invades the province of the jury and denies Mr. Paris the right to a
fair trial before a jury of his peers.
5. The Government Committed Prosecutorial Misconduct By Illegally Violating The Doctrine Of Judicial Estoppel Through Arguing Mr. Paris And The State Had A Contract.
! On December 26, 2012 the Prosecution were looking at a meritorious Motion to Dismiss.
To claim victory in that motion they unequivocally took a particular position, and because of
their stance, they won. (See 12/16/12 Tr.) The morning of trial on October 28, 2013 throughout
they entire trial, they held the opposite position. They argued it through voir dire, opening,
testimony and closing; even rebuttal. The argument they made, they abdicated by winning the
dispository motion on December 26, 2012. Defense was completely surprised (and quite frankly,
flummoxed) that the prosecution showed up, and the theory of the case is something they
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abjectly denied on the record a year previous. This caught the Defense flat-footed as the
Prosecution’s stance up to the moments before trial is that these papers delivered were terms and
conditions and not a contract.
The Prosecution’s previous stance is there was no contract. The prosecutor’s exact words
in their argument to win the December 26, 2012 motion were, “Also, with regard to contract, the
State would argue that there was no contract”. (12/26/12 Tr. at 7. Emphasis added.) Defense at
the time thought this was ridiculous. “it's ridiculous for him to say there's no contract.” (Id. at 7.)
The law in the state of Hawaii is very clear.
[a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action. State v. Anger, 105 Haw. 423, 433, 98 P.3d 630, 640 (2004) quoting: Roxas v. Marcos, 89 Hawai'i 91, 124, 969 P.2d 1209, 1242 (1998).
No facts have changed in regards to these contracts since December 26, 2012. Therefore
“the prosecution is judicially estopped from taking on appeal a position contrary to and
inconsistent with the one that it took at the hearing on the motion.” State v. Anger, 105 Haw. 423,
432-33, 98 P.3d 630, 639-40 (2004) (in Anger the motion was a suppression, in the instant case it
was a motion to dismiss. The principle should not be any different.)
While the Prosecution showed up prepared to voir dire based on the moral obligations of
fulfilling contracts, defense had prepared to avoid the word contract, due to the circuit court’s
ruling on December 26, 2012. (12/26/12 Tr. at 6-7.) Instead the Prosecution was allowed to argue
affirmatively the very position they successfully argued negatively at a previous dispository
hearing. The Defense, by attempting to follow the Rule of the Case and conform its argument to
� !33
the rules of the court that “this is not a contract”, was prejudiced through the entire trial as
Defense was taken unawares into a trial-by-ambush. The trial-by-ambush prejudiced defendant
to not be able to put on a fair defense, and as such the case must be reversed on appeal.
More than even the trial-by ambush, by swapping its position the Government is
adopting the failed defense position from the earlier dispository hearing. For this reason, Defense
should have won the prior hearing. Switching gears the morning of trial renders Defense
ineffective and violates Defendant’s rights to Due Process under the constitution.
V. RELEVANT STATUTES, RULES AND CONSTITUTIONAL PROVISIONS
See relevant statutes, rules and constitutional provisions attached as Appendix “D”.
!VI. CONCLUSION
Based on the foregoing reasons and authorities, Defendant-Appellant Eugene Paris, Jr.
respectfully requests that this Court either (1) reverse his conviction for Escape in the Second
Degree or (2) vacate and remand for new trial.
DATED: Honolulu, Hawai‘i, June 16, 2014.
Respectfully submitted,
! BY: MARCUS L. LANDSBERG IV ATTORNEYS FOR DEFENDANT-APPELLANT
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APPENDIX ‘D’
APPENDIX “D”!!!STATUTES Hawaii Rules of Evidence !!! §701-114 Proof beyond a reasonable doubt. (1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt: (a) Each element of the offense; (b) The state of mind required to establish each element of the offense; (c) Facts establishing jurisdiction; (d) Facts establishing venue; and (e) Facts establishing that the offense was committed within the time period specified in section 701-108. (2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed. [L 1972, c 9, pt of §1; am L 1973, c 136, §2(a)] !! §702-206 Definitions of states of mind. (1) "Intentionally." (a) A person acts intentionally with respect to his conduct when it is his conscious object to engage in such conduct. (b) A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes or hopes that they exist. (c) A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. (2) "Knowingly." (a) A person acts knowingly with respect to his conduct when he is aware that his conduct is of that nature. (b) A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist. (c) A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. (3) "Recklessly." (a) A person acts recklessly with respect to his conduct when he consciously disregards a substantial and unjustifiable risk that the person's conduct is of the specified nature. (b) A person acts recklessly with respect to attendant circumstances when he consciously disregards a substantial and unjustifiable risk that such circumstances exist. (c) A person acts recklessly with respect to a result of his conduct when he consciously disregards a substantial and unjustifiable risk that his conduct will cause such a result.
(d) A risk is substantial and unjustifiable within the meaning of this section if, considering the nature and purpose of the person's conduct and the circumstances known to him, the disregard of the risk involves a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation. (4) "Negligently." (a) A person acts negligently with respect to his conduct when he should be aware of a substantial and unjustifiable risk taken that the person's conduct is of the specified nature. (b) A person acts negligently with respect to attendant circumstances when he should be aware of a substantial and unjustifiable risk that such circumstances exist. (c) A person acts negligently with respect to a result of his conduct when he should be aware of a substantial and unjustifiable risk that his conduct will cause such a result. (d) A risk is substantial and unjustifiable within the meaning of this subsection if the person's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a law- abiding person would observe in the same situation. [L 1972, c 9, pt of §1; am L 1983, c 132, §1; am L 1986, c 314, §4] !!§710-1000 Definitions of terms in this chapter. In this chapter, unless a different meaning plainly is required: (1) "Administrative proceeding" means any proceeding the outcome of which is required to be based on a record or documentation prescribed by law, or in which law or regulation is particularized in application to individuals; (2) "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including benefit to any other person or entity in whose welfare the beneficiary is interested; (3) "Custody" means restraint by a public servant pursuant to arrest, detention, or order of a court; (4) "Detention facility" means any place used for the confinement of a person: (a) Arrested for, charged with, or convicted of a criminal offense; or (b) Confined pursuant to chapter 571; or (c) Held for extradition; or (d) Otherwise confined pursuant to an order of a court; (5) "Government" includes any branch, subdivision, or agency of the government of this State or any locality within it; (6) "Governmental function" includes any activity which a public servant is legally authorized to undertake on behalf of the government; (7) "Harm" means loss, disadvantage, or injury, or anything so regarded by the person affected, including loss, disadvantage, or injury to any other person or entity in whose welfare the person affected is interested;
(8) "Juror" means any person who is a member of any jury, including a grand jury, impaneled by any court of this State or by any public servant authorized by law to impanel a jury, and also includes any person who has been drawn or summoned to attend as a prospective juror; (9) "Materially false statement" means any false statement, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of the proceeding; whether a falsification is material in a given factual situation is a question of law; (10) "Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated, and, for the purposes of this chapter, written statements shall be treated as if made under oath if: (a) The statement was made on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable; or (b) The statement recites that it was made under oath or affirmation, the declarant was aware of such recitation at the time the declarant made the statement and intended that the statement should be represented as a sworn statement, and the statement was in fact so represented by its delivery or utterance with the signed jurat of an officer authorized to administer oaths appended thereto; (11) "Oath required or authorized by law" means an oath the use of which is specifically provided for by statute or appropriate regulatory provision; (12) "Official proceeding" means a proceeding heard or which may be heard before any legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or deposition in connection with any such proceeding; (13) "Law enforcement officer" means any public servant, whether employed by the State or subdivisions thereof or by the United States, vested by law with a duty to maintain public order or, to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses; (14) "Pecuniary benefit" is benefit in the form of money, property, commercial interests, or anything else the primary significance of which is economic gain; (15) "Public servant" means any officer or employee of any branch of government, whether elected, appointed, or otherwise employed, and any person participating as advisor, consultant, or otherwise, in performing a governmental function, but the term does not include jurors or witnesses; (16) "Statement" means any representation, but includes a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation; (17) "Testimony" includes oral or written statements, documents, or any other material that may be offered by a witness in an official proceeding. [L 1972, c 9, pt of §1; am L 1987, c 130, §1; gen ch 1993] !!!
§710-1021 Escape in the second degree. (1) A person commits the offense of escape in the second degree if the person intentionally escapes from a correctional or detention facility or from custody. (2) Escape in the second degree is a class C felony. [L 1972, c 9, pt of 1; gen ch 1993] !!!!RULES Hawaii Rules of Evidence !! Rule 103 Rulings on evidence. (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and: (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. [L 1980, c 164, pt of §1; am L 2006, c 73, §1] !! Rule 401 Definition of "relevant evidence". "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [L 1980, c 164, pt of §1] !! Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. [L 1980, c 164, pt of §1] !!Hawaii Rules of Penal Procedure !Rule 12. Pleadings And Motions Before Trial; Defenses And Objections. (a) Pleadings and motions. Pleadings in penal proceedings shall be the charge, and the pleas of not guilty, guilty and nolo contendere. All other pleas, and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules. (b) Pretrial motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: (1) defenses and objections based on defects in the institution of the prosecution; (2) defenses and objections based on defects in the charge (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); (3) motions to suppress evidence or for return of property; (4) requests for discovery under Rule 16; (5) requests for consolidation or severance of charges or defendants under Rules 13 and 14; (6) motions to dismiss under Rule 8(c) for failure to join related offenses; and (7) motions to transfer under Rule 21. (c) Motion date. Pretrial motions and requests must be made within 21 days after arraignment unless the court otherwise directs. (d) Notice by the prosecution of the intention to use evidence. (1) At the discretion of the prosecution. At the arraignment or as soon thereafter as is practicable, the prosecution may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial under subsection (b)(3) of this rule. (2) At the request of the defendant. At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the prosecution's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16. (e) Ruling on motion. A motion made before trial shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue or until after verdict; provided that a motion to suppress made before trial shall be determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
(f) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, within the time set by the court pursuant to section (c), or within any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver. (g) Effect of determination. If the court grants a motion based on a defect in the institution of the prosecution or in the charge, it may also order that the defendant be held in custody or that the defendant’s bail be continued for a specified time pending the filing of a new charge. Nothing in this rule shall be deemed to affect provisions of any statute relating to periods of limitations. (Amended December 7, 2006, effective January 1, 2007.) !!!Rule 52. Harmless Error And Plain Error. (a) Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. (b) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. !!ORDINANCES Revised Ordinances of Honolulu !Sec. 10-1.1 Definitions “Camp” or “camping” means the use and occupation of a public park as a temporary or permanent dwelling place or sleeping place between the hours of 10:00 p.m. and 5:00 a.m. “Commercial activity” means a use or purpose designed for profit, which includes but is not limited to the exchange or buying and selling of commodities; the providing of services relating to or connected with trade, traffic or commerce in general; any activity performed by the commercial operator or its employees or agents in connection with the delivery of such commodities or services; and the soliciting of business, including the display or distribution of notices, business cards, or advertisements for commercial promotional purposes. The use of land for utilities, and the use of the premises and facilities for official canoe regattas, shall not be considered a commercial activity. “Dwelling place” means a place used for human habitation as an overnight accommodation, lodging, or shelter on either a temporary or permanent basis. “Expressive activities” means speech or conduct, the principal object of which is the expression, dissemination, or communication by verbal, visual, literary, or auditory means of political, religious, philosophical, or ideological opinions, views, or ideas and for which no fee is charged or required as a condition of participation in or attendance at such activity. Expressive activity generally would not include sports events such as marathons, fundraising events, beauty contests, commercial events, cultural celebrations or other events the principal purpose of which is entertainment.
“Human habitation” means the act of utilizing, occupying, or inhabiting a place of lodging or shelter on a permanent or temporary basis as a place of residence or sojourn. "Off-leash park" means a public park designated by the director of parks and recreation where dogs, and no other animal, shall be allowed to be off-leash. “Public park” means any park, park roadway, playground, athletic field, beach, beach right-of-way, tennis court, golf course, swimming pool, or other recreation area or facility under the control, maintenance and management of the department of parks and recreation. “Public park” does not include a public thoroughfare defined as a “mall” under Section 29-1.1 unless the public thoroughfare has been (1) accepted, dedicated, or named by the council expressly as a “public park” or “park”; (2) placed under the control, maintenance, and management of and classified expressly as a “public park” or “park” by the department of parks and recreation; or (3) constructed or situated within a larger specific recreation area or facility listed in the preceding sentence. "Recreational stops" means the use of city beach parks by commercial tour companies for activities that may include, but are not limited to, sightseeing, spectating, picture taking, beach combing, swimming, and eating of prepared picnic lunches. “Shopping cart” means a metal or plastic handcart on three or more wheels provided by a wholesale or retail establishment such as a supermarket. “Sleeping place” means a place used by a person for the purpose of sleeping, where the person is asleep inside a tent, sleeping bag, or some form of temporary shelter or is asleep atop of or covered by materials such as a cot, mat, bedroll, bedding, sheet, blanket, pillow, bag, cardboard, or newspapers. “Tent” means a collapsible structure consisting of sheets of canvas, fabric, or other material attached to or draped over a frame of poles or a supporting rope that has more than one wall. “Traverse” means to travel continuously in a direction across or through. “Wall” means an upright, vertical, or slanted structure, partition, or divider serving to enclose, divide, support, or protect. (Sec. 13-14.1, R.O. 1978 (1983 Ed.); Am. Ord. 01-43, 02-51, 08-22, 10-4, 10-5, 12-2, 12-26, 13-12)
STATEMENT OF RELATED CASES
There are no related cases to the best of our knowledge.