*1 taking the considerations in party,” not warrant a conclusion [which do] account, I that a defen- prevailed.” Dean into would hold a defendant in such a case has party acquire prevailing would status dant Id. at 510. only judicial declaration to the based on some appeals recognized The circuit court of benefit, unless the defendant defendant’s calculating plaintiff could volun- also that a plaintiffs “voluntary” shows that the dismiss- tarily complaint escape a “to a dis- withdraw judgment al a disfavorable avoid judicial the mer- favorable determination on the merits. Accordingly, interpreting § its.” Id. pre- a the court held that a defendant is not IV. voluntarily vailing party “plaintiff when a claim, unless the defen- [or her] dismisses his reasons, foregoing I would vacate For plaintiff with- dant can demonstrate that the attorney’s denying order fees and court’s judgment on the drew to avoid disfavorable provided § in HRS 607-14 and costs as Id. at 511. merits.”9 54(d) with instruc- HRCP Rule and remand apply
tions to the test referred to above to Skydive “prevailing par- III. determine if was a ty.” Although binding is not Buckhannon court, holding in that ease alters the “prevailing party” previously ap
definition of upon
plied the lower federal courts such, Wong we had relied. As should merely party “prevailed” that a
not hold opposing party entered a volun
because Buckhannon, tary dismissal of the case. however, adopted ap Court stricter Hawai'i, Plaintiff-Appellee, STATE Blair, Wong proach than envisioned in holding attorney’s only fees should party prevailed by awarded where a obtain HAUGE, Defendant-Appellant. M. Steven ing judgment on the merits or a court Buckhannon, consent decree. ordered No. 25239. 605-06, 1835; U.S. at 121 S.Ct. see Supreme Court of Hawai'i. S-1 and S-2 v. State Bd. Educ. (en banc) (“A
N.C., 21 F.3d Nov. 2003. person ‘prevailing party’ not be a Corrected Nov. 2003. As except having virtue of obtained an en decree, judgment, forceable consent or set giving legal
tlement some of the relief
sought.”). approach exemplified
A more flexible
the considerations set forth in Dean. Dean
properly many in- noted that circumstances plaintiffs voluntarily
fluence decision claim, nothing
dismiss a some of which have position
to do with the defendant’s or the Thus, of the case. more in line with
merits plain language “prevailing definition of Ultimately plain- 9. Fifth held that the must then Circuit test to the defendant establish "Upon frivolous, applied be dant’s mine that the missed to avoid was as follows: the defen- groundless, without tiff’s suit was motion, the U.S. district court must deter- Dean, F.3d at The dual re- merit." voluntarily plaintiff's case was dis- underly- quirements justified by policies were judgment on the merits. Once ing rights the civil statutes. Id. made, this affirmative determination has been
.Joyce Matsumori-Hoshijo, pub- deputy K. defender, briefs, lic for defendant- appellant. Brown, Qiu deputy
Mangmang prosecuting briefs, attorney, plaintiff-appellee. MOON, LEVINSON, C.J., NAKAYAMA, infringed jury’s cause neither on the DUFFY, JJ., ACOBA, J., concurring right credibility evaluate nor shifted separately. proof Hauge; burden of the circuit during court’s misstatement of the evidence LEVINSON, Opinion Court J. closing defense counsel’s defendant-appellant Steven M. beyond harmless a reasonable doubt when appeals judgment from the of the first cir- and, light considered of the entire record court, cuit Marie Honorable N. Milks therefore, did Hauge’s not violate to a presiding, convicting sentencing him and trial; (3) impartial fair and the circuit court’s burglary him for the offense of in the first suppress denial of degree, pursuant to Hawai'i Revised Stat- *4 error, DNA not evidence was inasmuch as (HRS) 708-810(l)(c) (1993).1 § ap- utes On constitutionally were prohibit- not (1) peal, Hauge deputy contends that: using profile lawfully ed from a DNA ob- (DPA) prosecuting attorney pros- committed prior in subsequent tained in a case a and misconduct, depriving Hauge ecutorial of his (4) investigation; jury different and a deter- trial, to a by improperly fair cross- constitutionally necessary mination was not examining Hauge by stating and closing in Hauge’s sentence, to extend inasmuch as “explain failed to Hawai'i law is with consistent relevant feder- away” prosecution’s deoxyribonucleic precedent, process al and due does re- not (DNA) (2) evidence; acid the circuit court quire a such determination. by improperly commenting erred on the evi- misstating dence and testimony For the reasons discussed in Section infra prosecution’s during witnesses defense coun- IV, Hauge’s arguments we are believe that argument, closing thereby violating sel’s Accordingly, merit. without we affirm the trial; Hauge’s right a impartial fair and judgment circuit court’s conviction and (3) denying the circuit court in erred sentence. Hauge’s suppress motion to DNA evi- an dence was obtained in unrelated rob-' I. FACTUAL
bery BACKGROUND present ease and used in the matter Hauge’s judicial without consent or deter- 23, 2001, January On and Wallace Marcella cause; (4) probable mination and the cir- Ordway guests were 714 of the Room prosecution’s cuit granting court erred in ' Hotel, Ocean Resort located at 175 Paoakala- sentence, extend ni At approximately Avenue Waikiki. 7:00 706-662(1) § (Supp.2000),2 to HRS from ten a.m., Ordways prepared luggage their twenty years imprisonment, inasmuch trip their for a then room Kaua'i and went finding as the extended term was approximately downstairs breakfast. At necessary protection public for the of the a.m., Ordways 7:30 returned to their proven beyond should have been reason- yet room to find that the bellman had not jury. plaintiff- able doubt before the The [hereinafter, luggage. removed their in- The bellman appellee State of Hawai'i “the (1) prosecution”] responds Ordways formed the that he had checked that: the DPA’s separate remarks did not constitute misconduct be- Room 714 on two occasions and was 708-810(l)(c) § provides: imprison- 1. HRS Criteria for terms of extended subject A ment. convicted defendant Burglary degree. person first A imprisonment to an extended term of under burglary in the commits offense first if the section convicted defendant degree person intentionally if the enters or following one or of the satisfies more criteria: unlawfully building, remains in a intent to with persistent is a The defendant offender against person a crime commit therein imprisonment whose for an extended term against property’rights, and: protection necessary public. finding un- The court shall not make this (c) person disregards recklessly a risk that previously less been con- another, building dwelling is the and victed of two felonies committed at differ- building dwelling.... is such a eighteen times ent when defendant was 706-662(1) provides: years age § 2. HRS or older.... “ [it], [bag] it ‘gentlemen paper ha[d] with handles by the inside the informed ready. logo [sic].” Hard Rock Café luggage was door’ that the matter, Hauge In addition room, Ordways Upon reentering the robbery suspect investigation, in a was luggage their had been cut discovered that had occurred on based on events which open belongings across the their strewn January approximately five hours Ordway glass floor. observed broken Mrs. burglary, at the before Ohana Waikiki door, on the and blood the inside floor Hotel. was arrested on Janu- West doors, counter, sliding patio bathroom robbery ary 2001 in connection with the Ordways places luggage. The vai'ious on the January part On as offense. bathroom, in the sliced found one suitcase robbery Darryl investigation, HPD Detective blood; open clothing their stained applied Kon for and was issued a warrant Ordways testi- also was bloodstained. The human search for and obtain hair and blood theirs. fied the blood Hauge, January executed on camcorder, burglar Sony four hun- stole their requested Cellmark 2001. The HPD cash, t- two Rock Café dred dollars Hard Diagnostics analysis conduct a bag, as well shh’ts and a Hard Rock Café comparison of the blood recovered *5 Ordway a travel Mr. described the iron. burglary investigation portion a the with and and camcorder “black silver” the as Hauge pursuant samples retrieved from “plastic” bag Hard Rock as and “white Café investiga- robbery in the the warrant issued Ordway on it.” did with dark emblems Mrs. tion, HPD of a and Cellmark notified the testify the color of the camcorder not about 24, police September match on 2001. The ,not could recall the of the Hard and color 11, 2001, Hauge on October based arrested bag bag, but did the as Rock Café describe perpetrator on his identification as the Ordways the hotel “paper.” Either the or burglary offense. police. staff called the bags Although Ordways their repacked II. PROCEDURAL BACKGROUND they tape duct and sealed them with so that prosecution On October Kaua'i, they could for testified that leave by complaint charged Hauge with one count they tamper any did with of the evidence degree, burglary supra first see by police, requested by later recovered 2001, 1, 23, January alleging note (HPD) Detec- Department Honolulu Police unlawfully Hauge intentionally entered into day, after tive Anderson. The same James Hotel, 714, Ocean Resort Room Kaua'i, arriving approxi- cut against intent to commit therein a crime mately pieces 6 bloodstained of the or recklessly against property, or person luggage; officers hand delivered the evidence disregarded building risk that was January The HPD to the HPD on 2001. another, dwelling building when-the samples pieces of also recovered blood dwelling. such a was glass left bathroom of Room in the sink lock, patio sliding glass the inside door suppress A. evidence Motion to DNA doorframe, curtain hotel room. and the of the Hauge a mo- On December filed Diag- samples These were sent to Cellmark suppress “[a]ny and all tion evidence (Cellmark) testing. for nostics DNA laboratory analysis conducted tests and/or any part burglary investigation, upon As HPD all recovered items . pawn shop propri- under HPD which have been ex- questioned detectives etor, Khatib, any to contain regarding Nabil transac- amined have determined been genetic In Sony January [Hauge’s] profile.” DNA involving tions camcorders and/or motion, trial, support Hauge argued that Khatib that he At testified Hauge him “the ... and hair [his] was certain that tried to sell submission of goldish” comparison, Sony analysis “tan[ or] camcorder that limited, matter, question. burglary au- in color date in Khatib also exceeded the on the purpose for which the search war- Hauge carrying testified a “brown thorized issued, [ie.,] investigation subsequent rant was investiga- of the unrelated criminal (Citations omitted.) robbery.” Hauge prosecution contended that use of his tions.” samples, blood and hair represented further “blood was obtained to a search warrant in the than specified application other robbery purpose case for the of DNA test- warrant, support of the search and the ing,” arguing testing always that “DNA will itself, Hauge’s legiti- warrant violated ... same, regardless be the of when and how expectation mate and privacy reasonable many times the is done.” testing government keep would citizens, ... a DNA [sic] databank of it’s alternative, asserted government which the could delve into at standing challenge lacked ..., government’s convenience without investigation use of his DNA in the judicial review. matter, inasmuch as his “DNA was profile, profile used create [and] Hauge also asserted that “there are pro- no property became the of the crime cedures, lab guidelines no as to HPD is what police department Hauge] [such has a person’s authorized do with DNA once possessory no interest or other interests by way it obtain of a search warrant.” kept the records or crime lab reasoning, the foregoing Based on police department.” regard, In this argued judicial that he “was entitled to re-. prosecution argued “[p]rivaey concerns by way of application view [to longer are no the sample relevant once probable determine whether there was already lawfully body been removed from the cause] to conduct additional tests on the evi- dence, analysis and the scientific does not involve [that he was to an adver- entitled] any further search and seizure of a defen- hearing sarial necessity determine the *6 that, person.” prosecution urged dant’s The legitimate expectation the into [his] intrusion analogue because closest “[t]he to retention privacy.” of is testing fingerprint of DNA the databank In response, prosecution advanced sev- ..., profile retention of DNA is not an arguments position eral support in of its any private invasion unreasonable of area of Hauge’s deny circuit court should motion Lastly, prosecution life.” made the suppress. prosecution The first contended “common sense” less “[i]t that, because “the Honorable Rhonda Nishi- sample” one intrusive obtain blood than to authority mura had to issue the search “have search with- warrant ordered for the authorizing [Hauge] warrant the search of sample [Hauge] of a in drawal blood samples the blood and hair [in connection every investigation Hauge [in which was a robbery investigation,] with the ... all the suspect].” evidence recovered to the search in February warrant is admissible the instant case.” On after circuit prosecution emphasized “importance sup- arguments court heard on testing justice press prior of DNA within the criminal but to the DNA evidence motion, system” express ruling Hauge that there are no court’s filed stated on statutory suppress on of limitations the collection additional motions samples testing probable blood for DNA or on the based on a for the lack cause testing dissemination of the results of DNA issuance the search warrant for the blood Center, at the Criminal Data in sample robbery Hawai'i Justice connection with inves- that, (ie., Hauge’s sample such once tigation “property” [was] “blood to return his hair). obtained, recorded, lawfully samples Hauge pre- of his blood and [it] served, Moreover, lacking argued probable and disseminated.... cause was warrant, that, prosecution argued lawfully “[o]nce ob- the time Detective Kon filed for a tained, [Hauge] longer any no not] confirm[ ] can assert because “Kon that HPD [did bodily privacy possession interest in ... held fluid at the law was left robbery.” support of enforcement” and asserted that “courts have scene of the In that, agencies may fact “as of argument, Hauge held that law enforcement com- cited the pare validly February yet ... to be samples ha[d] obtained DNA for use [he] suppress. orally placed charged surrounding crime Ron’s The circuit court (FOFs) January robbery investigation.” findings Al- conclusions its of fact (COLs) record; though acknowledged although that “it is un- law on prosecution ... of review a lower to submit clear what standard court instructed sug- apply approval [he should ... its rul- nevertheless written order for based on logic appellate of de gested prepared. novo oral ing, again, t]he none was appears applicable to a circuit many review facts included of the relevant FOFs magistrate’s decision to court review of a adduced the memoranda submitted issue a search warrant.” noteworthy but that the parties, it is most circuit court entered no FOFs or COLs require that the The circuit court did touching upon samples the submission of two respond by memoran- prosecution written first, (i.e., Hauge’s blood to Cellmark Nevertheless, prosecution argued dum. pursuant to the search warrant in connection four hearing at the on the motion that “the robbery investigation, with the and the initial [indicate corners the search warrant burglary inves- second connection with probable prosecution adequate] cause.” The tigation). court’s re- further contended circuit magistrate’s issue the view of decision to Invoking ruling on the motion to its second inappropriate “peer re- would be warrant (i e., suppress that the search autho- warrant view.” rizing drawing Hauge’s blood was cause), probable lawful and based ruling Hauge’s motion to second legitimate circuit court “use of concluded that, suppress, the circuit court first noted profile just DNA [was not] limited investigation regarding [the “while initial robbery agreed The court with the matter.” robbery Hauge] investigation, started as a it Hauge’s blood “[o]nce ease, up as there is no ended a murder lawfully body, longer no drawn from he cases, and the statute limitation murder blood,” possessory interest in that ha[d] anyone, re- required charge State is not analysis ruled in the gardless probable there cause whether require any matter “did not additional chemi- rejected or not.” The circuit court therefore analysis might upon any infringe cal arguments subject. on that On the might privacy interest have the circuit re- issue of whether court could *7 extrajurisdictional authority Citing blood.” decision, magistrate’s view the the circuit support ruling, court of its the circuit authority court ruled that “there is no for a sample like other “[a] noted blood war- [the court to review issuance of search tangible property subject which is to a bat- rants, jurisdiction which within the of are the tery of scientific tests” and concluded court],” anyway did so “for district but the analogue to of DNA “[t]he closest retention clarifying probable sake of what cause fingerprint is the databank.” respect to the with search.” After [was] discussing supporting affidavits the war- person, Regarding Hauge’s the circuit Hauge’s authorizing drawing rant of found minimal court that the “intrusion was robbery blood in connection with the investi- [, and, markers identifying [of o]nce gation, the circuit court concluded “that on determined, Hauge’s DNA there were] [was] review ... independent its own there [was] for multiple no need for further and intrusion probable cause for the execution of the extracting every purpose for blood Thus, circuit ].” search court warrant[ comparison.” Lastly, specif- future the court Hauge’s suppress both motion denied to for ically underlying ruled that “the basis alleged probable lack of cause and his motion scope recovery sampling [in for the blood in- property. to return The circuit court robbery investigation] connection with to prosecution prepare structed written testing comparison was limited to DNA order, although prosecution failed to do purposes” concluded that the use of so. burgla- Hauge’s in connection blood not, therefore, investigation February ry circuit “was ex- [in]
On ruling Hauge’s scope upon [the first motion cess of of the basis which announced its foundation, forego- laying proper pros- blood] obtained.” Based on After ing reasoning, Terrill, the circuit Margaret court denied eeution called a DNA ana- Hauge’s suppress lyst, evi- who “the samples testified that [she] tested, dence. the blood that [she] tested on [those]
samples, came from Steven Michael blood.” engaged The DPA Terrill in the B. agreement regarding Hauge’s Pretrial following colloquy: theory of defense words, Q: In other evi- items of trial, Hauge Prior the commencement of you dence had received and tested is theory discussed defense with the cir- perfect match to this defendant? Hauge initially cuit represented court. A: That’s correct. argue he would there was bias Q: Hauge? Steven Michael wrongful against motive him and that he allege intended that the HPD had inten- A: That’s correct.
tionally mishandled the evidence in order to cross-examination, On Terrill testified that a respect burglary. frame him with to the DNA profile unique person: to each DPA, however, Both the circuit court and the Q: possible So is it person another suggested theory to Hauge that such a would myself? type have the same of DNA as likely prosecution’s result introduction A: No.... evidence other crimes as rebuttal. Q: even perhaps, Not that one in warning, opted Hauge face this case, this 790 trillion chance? pursue theory samples that the blood had Correct, why A: I negligently because—the reason been Accordingly, mishandled. believe, say only, that is because there’s I prosecution withdrew its motion com- people like six billion on earth. pel Hauge undergo testing. further blood prosecution’s D.The cross-examination against Hauge C. The adduced and rebuttal trial, prosecution HPD At called Offi- testified his own defense at trial. Cavanaugh, cer James who testified During prosecution’s cross-examination burglary, the scene he found a “white Hauge, DPA questioned Hauge about bag plastic white [a] contained towel the DNA evidence: wrapping [a] which was concrete block.” sir, true, Q: Hauge, Mr. isn’t it called HPD Detective you away thing explain one could not Anderson, plas- who testified that a different morning your was how come it was bag containing wrapped tic a concrete block Ordway was found suitcase and newspaper in a was recovered from Steven Ordway room at the Ocean hotel *8 upon Hauge day his one after arrest Resort Hotel? Hauge burglary. during conceded his testi- A: blood. mony my I don’t believe that was that he had this concrete with block taken, arrest; I my know that vials him at the time of his blood was two he testi- it, key at H.P.D. possession fied that he was in cellbloek. card Hotel, from Ocean Resort was the Q: right. is That was taken on That burglary. scene January right? arrested, A: I I I know that when was stated, Ordways previously As testi- day, my think it was the next took alia, fied, Sony inter camcorder and blood. Rock were from bag Hard Café stolen their Khatib, January January pawn Q: room on You were arrested owner, you testimony shop day, that on same testified heard blood, Wayne your approximately burglary saying one hour after the Kimoto occurred, warrant, carrying taken entered his store to the search 25th, day, January attempted you following to from bag Hard Rock Café sell Sony him a that? camcorder. remember already dling the evidence. The court A: Yes. ruled. Q: Okay. why, after I THE COURT: And told interrupted point,
At this circuit witness, you argue did you do not with the approach and asked to the DPA him proceed argue with him? thereafter record: for a conference on the bench by argument. That’s what we mean you going to caution THE COURT: I’m Okay. [DPA]: you argue witness and I’ll with the you you door open don’t caution warning. a last THE COURT: This is inten- trying explain possible him for consequences will suffer whatever if You you mishandling blood. If tional your you depart own choose him, copious explana- push there would be track.... stay away that. tions. Please The DPA thereafter concluded his cross-ex- you Thank much. [DPA]: Hauge. amination questioning DPA then resumed his During argument, his rebuttal the DPA evi- “explain” failure to the DNA Hauge’s failure again raised issue of exami- during testimony his on direct dence account for DNA evidence: nation: stand, lie, can he can [Hauge] take the you Q: you When earlier testified He hey I was never in that room. you your think or believe it was don’t don’t card, every got excuse how he Ordway in that hotel in the room and rock, why why carrying he was he suitcases, comport that does not with what area, about the video camera. today. expert the D.N.A. testified earlier away everything explained except He testify, You heard her that true? isn’t important of all. the most evidence He A: Yes. explain away why the could not D.N.A. Q: your D.N.A. was a She testified that pinpointed him inside that room. match. D.N.A. was a perfect Your blood object to this did perfect match to the evidence recovered trial. in- Ordway suitcases and from inside that? right? Room You heard side commentary during E. Judicial defense A: Yes. closing argument counsel’s fact, Q: you also— (DPD) deputy public defender ad- Again, interrupted the circuit court perceived certain inconsistencies be- dressed excusing the questioning, DPA’s time Ordways’ tween Wallace and Marcella de- jury Hauge from the courtroom: bag scriptions during of the Hard Rock Café [DPA], closing argument: going THE COURT: I’m tell time, you argue a second do not with Khatib, The video camera itself. Mr. you really give If him to witness. want certainty, he said was certain that he answer, you'will your peril. take it at Hauge brought, the video camera ... understood, your So Honor. [DPA]: pawn gold. That him to was tan and way testimony. There’s no ax*ound ready to THE COURT: witness is This testimony that. His that the video cam- you. ready fight with tangle He is *9 pawned attempted era that was to be give you wants to you and the answer he gold. tan and ruling. If give. There been a court are, my you proceed you you’re to wish as Ordways How describe their did vid- you guest and will whatever conse- suffer This is camera? Black and silver. eo make quences it leads to. Do I need to the same camera that was taken any myself clearer? Ordways. totally separate These are two No, your my happened Honor. It’s items. But here is that [DPA]: what’s testimony Hauge being something to elicit on Mr. blamed intention kinds indicating take. part an intentional mishan- he did not his
47 ‘right/wrong’ Mr. Khatib described this Hard Rock constitutional law under the Jenkins, bag paper. being Café as brown and The standard.” v. 93 Hawai'i State 87, 100, (2000) (citations, Ordways 13, their Rock described Hard Café 997 P.2d 26 bag being plastic. quotation signals, ellipsis as white and some some omitted). Accordingly, points review “[w]e point, At interrupted the circuit court ruling the circuit court’s on a motion to the DPD: suppress de novo to determine whether the Counsel, says THE COURT: it was she (cita- ruling ‘right’ ‘wrong.’ or Id. okay. paper, omitted). quotation signals tions some Ordway [DPD]: And Mrs. said it was paper, white and totally separate two de- 195, 203, Locquiao, v. 100 State Hawai'i 58 scriptions of the evidence. 1242, (2002) (quoting P.3d 1250 State v. Poai 353, 387, puni, 392, me. Hawai'i 49 P.3d 358 [DPA]: Excuse (2002)). paper. THE COURT: He said tan and facts, right? jury Let’s stick to the all The B. Prosecutorial Misconduct disregard
is asked to
that last remark
counsel.
Allegations
prosecutorial
The fact is that the
[DPD]:
video cam-
are
misconduct
reviewed under
Hauge attempted
pawn
era that Mr.
beyond
harmless
a reasonable doubt
was not the—was not the camera taken
standard,
requires
an examination
Ordways.
from the
Two different cameras
of the
and a determination of
record
you.
were
That is
described
fact
a
possibili
“whether there is
reasonable
way
no
there’s
around that.
might
ty
complained
the error
completed
closing argument
The DPD
have contributed to the conviction.”
109,
objecting
Balisbisana,
without
circuit court’s inter-
83
State v.
Hawai'i
jection.
114,
1215,
(1996) (quoting
924 P.2d
1220
Holbron,
27, 32,
80 Hawai'i
904
State
Extended-term, sentencing
F.
912, 917,
denied,
P.2d
80
reconsideration
jury
Hauge guilty
charged.
found
as
(cita
(1995))
187,
Hawai'i
State 96 26 v. 572, (2001). a “Where defendant fails to 582 sentencing judge gener [A] object during prosecutor’s to a statement ally imposing broad discretion appellate limited closing argument, review is Gaylord, 78 v. Hawai'i sentence. State prosecu whether to a determination 1167, 127, 143-44, P.2d 1183-84 890 plain alleged tor’s misconduct amounted Valera, 424, (1995); 74 v. Haw. State Iuli, 196, 204, error.” v. 101 Hawaii 65 State (1993). 435, 376, 381 848 P.2d (2003). 143, 151 P.3d applicable of review standard for sen resentencing tencing or matters C. Misconduct Judicial plain court committed whether the [Wjhere judicial bias misconduct or of discretion its deci manifest abuse party impartiality deprives a 144, at Gaylord, sion. 78 Hawai'i 890 entitled, trial
which he or she is
new
1184;
Kumukau, 71
P.2d
State v.
at
However,
required.
reversal on the
218, 227-28,
682,
Haw.
787 P.2d
687-88
grounds
judicial bias or misconduct is
12,
(1990);
Murrayl,]
v.
63 Haw.
State
only upon
showing
warranted
(1980);
25,
334,
621 P.2d
342-43
State v.
Handguards,
[Hand
trial was unfair. See
231,
226,
13,
Fry,
Haw.
602 P.2d
16
61
Inc.,
Ethicon,
1282,
gards]
F.2d
Inc. v.
743
(1979).
(9th Cir.1984) (citations omitted), cert.
1289
denied,
1190,
963,
105
U.S.
S.Ct.
83
469
281,
State,
284,
Keawe
79 Hawai'i
901
v.
(1985).
turn,
Unfairness, in
968
L.Ed.2d
(1995).
481,
“[F]actors
P.2d
484
precise
requires a clear and
demonstration
manifest
plain
indicate a
abuse of dis
Mitchell,
Mahoney
4
prejudice.
See
v.
arbitrary
capricious
or
cretion are
action
410, 418,
35, 40-41
Haw.App.
668 P.2d
rigid
refusal to
judge and
consider
(“[h]ow
(1983)
departure
great a
from fair
Fry,
contentions.”
61
defendant’s
“
reversible
ness amounts to
error is deter
231,
And,
‘[gen
Haw. at
602 P.2d at
by the answer to the fundamental
mined
erally,
ap
an abuse it
to constitute
must
inquiry
or not what
done was
whether
clearly
pear that the court
exceeded the
(citation
appellant”)
prejudicial to the
omit
disregarded
or
rules or
bounds of reason
],
ted);
Peters
48
[v.
see also
Jamieson
practice to the
principles of law or
substan
264,
[575],
[247],
Haw.
397 P.2d
586
party litigant.’
tial
of a
detriment
(1964) (“[prejudice is the ultimate fact”
[
]
Keawe,
284,
at
901
79 Hawaii
P.2d at 484
(citation omitted)).
144,
Gaylord,
ing, the
im-
investigations
one of first
subsequent
§
HRS 706-603
jurisdiction.
pression in this
The foundation-
requires]
sample[s]
be obtained
blood
standard,
by the
States Su-
al
set
United
sexual and violent offenders
from convicted
California, 384
preme
in Schmerber
Court
v.
charged
requires
a defendant
[and]
1826,
757,
908
S.Ct.
16 L.Ed.2d
U.S.
with ... sexual or violent offenses who
(1966),
pro-
the fourth amendment’s
proceed
ac-
extends
found
be unfit to
or
been
insanity
against
tection
unreasonable searches
provide
quitted
reason of
body
of
for the
analysis
to invasions
the
samples
blood
for DNA
seizures
two
at
clearly
empower
purpose
extracting
samples.
Id.
do[es] not
of
blood
statute[ ]
said
767-68,
regard,
gather
samples
DNA
of
In that
government
pellant
disappeared
had
blood
validly
grant
of defendant’s motion
upheld
when that blood was
seized....
facts,
testing
the identical
finding
The further
blood
suppress under these
sample ... did not
constitutional
drawing
§
offend
limits
OCGA 40-5-55
principles.
only
drugs
test
alcohol and
only
consented
...,
Washington
[752
1272.]
A.2d
drawing
purpose.
blood for
approved
the use of blood sam
case, in
ples, validly
previous
obtained in a
distinguishable
The situation here
*14
murder
at
[653
an unrelated
case.
So.2d
this
from Gerace.
In
case defendant’s
And,
...,
Bickley
in
364-65.]
the court
pursuant
to a warrant
blood
obtained
many
point
made
matter
the
“no
how
purpose
testing,
is
the
DNA
and that
for
tested,
times defendant’s blood is
the DNA
only
performed
test that was ever
be identical.
defen
results would
What
And no
how
blood.
matter
defendant’s
really objecting
compari
dant is
to is
tested,
many
times
blood is
defendant’s
DNA with DNA
from
son
his
derived
results would be identical. What
DNA
of’
samples taken from the victims
other
objecting
really
is
to is the com-
S.E.2d
DNA
170.]
crimes.
But
[489
parison
his
DNA with DNA derived
results,
fingerprints, may be main
like
samples taken from the victims of
from
by
tained
for use in fur
law enforcement
in
specified
crimes other than the one
[Id,.]
investigations.
per
ther
areWe
agree
the trial
search warrant. We
with
suaded that a distinction should be made
respect,
“[i]n
court that
this
DNA results
previous
because the
conviction was ulti
fingerprints
main-
are like
which are
mately reversed.
tained on
law
authori-
file
enforcement
(some
and ellipses
Id. at 521-22
brackets
investigations.
in
ties
use
further
for
(footnotes
original)
added
some
omit-
added).
Bickley,
(emphases
App.] proposition for the that a blood police us- foregoing analogize authorities sample not be used for desired age lawfully samples blood obtained purpose by law enforcement officials. analysis. defendant, DUI, profiles fingerprint DNA forensic Gerace the arrested analogy particularly apt, because it drawing consented to blood for implies legitimate drug testing under the limits of use of alcohol and OCGA evidence, namely, pur- § Gerace’s blood was then also DNA for identification 40-5-55. only.6 Here, poses Consequently, approval limit sample we taken from [first] sample HPD’s use blood appellant judicially is- purposes matter to the for which sued search seizure warrant. The de- department a fingerprint could have used fendant expressly in Binner limited his investigation. in such an particular type consent to one of testing i.e., only, Here, blood alcohol content. lines, Along Bickley the same there was no such nor limitation was the distinguished involving multiple testing eases appellant any position impose a limi- sample blood for DNA identification tation. Because the instant ease has noth- Gerace, facts of in which the ing to permitted scope do with the of a initially drew drug alcohol and test- search, totally inap- consensual Binner ing analysis. but later conducted Simi- posite. larly, the distinguished Wilson court its hold- fr,om ing on the record before it State v. Id. Binner, Or.App.
(1994), in which a defendant consented to foregoing Consistent con testing siderations, *15 purpose quan- blood for limited affirm Hauge’s we the denial of tifying content, blood alcohol but was later motion to suppress ground on the narrow driving tried for under the influence of mari- Hauge’s that initially pursu blood was drawn juana analysis based on the warrantless ant comparison to a lawful warrant for DNA Wilson, drugs. his blood for 752 A.2d at purposes identification connection 1270. Deeming distinguishable Binner robbery with the investigation and that the it, the matter before court ex- Wilson only blood sample was used connection plained that with burglary investigation giving rise to sample present
the initial
blood
taken
matter for
DNA
Binner
the same
com
parison
was
the defendant’s
purposes.7
consent.
and identification
COURT;
(9th
Kincade,
pi’oof ... [and n]o curative instruction was prosecution argues Napulou given jury.” to the Hauge therefore con- dispositive contention that *17 foregoing tends that the plain constitutes unconstitutionally the DPA shifted the bur- error, “deprived Hauge inasmuch as it of proof, den that noting Napulou—which, of as [I], to a fair trial under Article 5 section above, adopted majority discussed the view the Hawai'i Constitution and the Fifth and jurisdictions among those have that consid- Fourteenth to Amendments the United question—held that ered the DPA is States Constitution.” permitted to on a defendant’s fail- comment prosecution The responds that the DPA’s call “logical” present ure to witnesses cross-examination constituted mis- neither materia] support an evidence in alibi de- conduct nor a denial of a trial. to fair As 58-59, at Id. at 936 P.2d Í306-07. fense. questions whether the DPA’s and remarks prosecution the cir- further asserts that infringed upon jury’s prerogative of as- jury clearly cuit court’s instructions advised witnesses, sessing credibility pros- prosecution that the bore the entire burden ecution asserts circuit court’s warn- proof beyond a reasonable doubt with ing during directed at DPA Lastly, respect guilt. prosecution to ar- by was cross-examination not motivated gues that the DPA’s remarks that impropi’iety questioning, but “was could not refute the evidence constitut- ‘open[ing] more out of concern for the door state permissible ed a “comment on the [Hauge] trying explain possible in- evidence,” Napulou held did not mishandling tentional blood’ that 59, at rise to the level of misconduct. Id. 936 have, turn[,] lengthy testimony led to P.2d at 1307. by rebuttal the State.” The witnesses called held that prosecution therefore contends that “the trial This has efforts proof prosecution to shift burden of onto proper court’s remarks seem to reflect implicate power improper exercise of the court’s inherent a defendant are and 56 jury. process manslaughter amend- instruction to Pone
due
clauses of the fourteenth
present
from
matter
distinguishable
ment to the United States Constitution
I,
at
the statute
issue in that case itself
Hawai'i
because
article
section 5 of the
Constitu-
172,
improper
shifting.
the risk of
burden
Maelega,
created
tion. See State
80 Hawai'i
179,
(1995) (“there
179,
Maelega,
burden of
to [the
witnesses,
testifying
well
of his
were
as some
falsely
prosecution’s
whereas
witnesses
Nevertheless,
improper
in the absence
not, Cordeiro,
were
99
at
Hawai'i
shifting,
consistently
court has
burden
(2)
727;
“highlighting
P.3d
the fact
at
prosecutorial
viewed
comment on the state of
comport
at
See,
adduced
trial did not
e.g.,
as legitimate.
the evidence
State v.
during’
counsel’s
Cordeiro,
390, 425,
defense
assertions
Hawai'i
P.3d
statements,” Valdivia,
(“It
opening
95 Hawai'i
...
within
bounds of
678;
(3) “commenting]
24 P.3d at
state,
legitimate
prosecutors
during closing argument
discuss,
evidence^]”);
‘[w]hen the
and comment on the
you
in here
defendant comes
and tells
he
Valdivia,
Hawai'i
State
(“a
cocaine
not on
it’s
cockamamie
is,
prosecutor
(i.e.,
story
you
jury)
asking
[
]
and it’s
closing argument, given ‘wide
latitude
”9 Clark,
yourselves
take
as fools.’
83 Ha
may ‘state,
discussing the
evidence’
dis-
wai'i at
Based on DPA’s and remarks not consti- questions jury.” prosecu- did in its instruction to the The tute misconduct. court’s in- specific tion also cites the circuit jurors, the which informed them structions to during C. circuit court’s comments they judges that the exclusive of the were closing counsel’s defense did not they judge facts and that should the evidence Hauge prejudice result in rely the themselves and not statements jury trial because in- the unfair Moreover, pros- and counsel. the remarks of any impropriety. cured structions “unequiv- circuit court ecution notes that the the circuit Hauge argues that court “violat- ocally jury requested the consider her (HRE) [Hawaii ed Rule of Evidence Rule ] deliberation, during remarks its unless improperly it com- when [ ]10 prosecution were instructions.” testimony the of the State’s wit- mented on Estrada, Haw. cites State v. 738 P.2d closing argu- during nesses defense counsel’s (1987), proposition that “[t]he for the ment.” contends this violation presumed complied jury is to have the court’s “prevented jury adequately consid- the instructions.” ering crediting Hauge’s testimony and and ' deprived Hauge (cid:127)... of his to a fair Furthermore, prosecution observes exchange Recounting trial.” between that the DPD, supra circuit and the discussed court complained during of was comment made E, Hauge II. characterizes the section repeated the court’s effort to course of interjection, paper,” “He said tan court’s and present insist the defense counsel evidence, as an comment on the improper closing argument based evidence ad- specify court did not “[t]he inasmuch as that, d]uring duced ... to, [and at trial testimony referring whose she was nor closing being argument, tan the trial asked what items were described as court paper.” argues that regardless occasions, approach, counsel on five jury interpreted how the circuit court’s counsel at the not to admonished bench comment, comment was inaccurate the jury. misstate or mislead comport testimony did with the adduced Conceding misspoke that the circuit court Additionally, Hauge trial. contends DPD, correcting argues “admonition” of the DPD circuit court’s “only to a error was minimum de “implied distorting that defense counsel was judge’s gree” “the tidal and that remarks trying jury to mislead the facts and doubt,” beyond were harmless reasonable giv[ing opportunity DPD] [without] “ inasmuch as the court an atti ‘maintained] explain jury glaring to the inconsistencies impartiality’ tude of fairness notwith regarding color of the videocamera standing repeated counsel’s [the defense] dis bag” support description of regard judge’s (citing admonitions.” theory. defense Pokini, 640, 663, State v. 55 Haw. 526 P.2d prosecution argues response, (1974); Nomura, accord State v. “the as a entire record whole” establishes (App. Hawai'i 903 P.2d judge in this case was fair and “the trial 1995)). Lastly, prosecution argues impartial.” Noting that court circuit single the circuit “made a misstatement during closing arguments commented rather effect did not have the of demean [that] during process instructing than client, ing judge if counsel or his even jury, prosecution contends that HRE improper could counsel’s conduct to the have found inapplicable Rule mat- 1102 is ter, only “precludes annoying.” rule or even inasmuch as the *20 provides: upon 10. 1102 shall It HRE Rule not comment evidence. shall instructions; jury are inform the the exclusive Jury pro- comment on evidence judges questions of fact and of all the credibili- hibited. jury regarding ty instruct the The court shall of witnesses. case, applicable the facts but the law to of the
59
prosecution wrongly interprets
com
impropriety of the circuit court’s
evidence,
allowing
HRE
as
trial
jury
Rule 1102
courts to ment on the
instruction
evidence,
long
prejudice
Hauge.
so
any
against
comment
cured
commentary
not
in
does
occur
the course of
We
hold that
circuit
therefore
coart’s
Indeed,
instructing
jury.
plain
lan
improper
not
comment
the evidence did
1102,
entitled,
guage of HRE Rule
which is
grounds
amount
to reversible error or
instructions;
“Jury
comment on evidence
trial,
jury
new
in-
as the court’s
inasmuch
prohibited,”
prohibition
establishes
sufficiently
struction was
curative.
against judicial comment on the evidence is
jury
not limited to
instructions. See HRE
706-662(1)
S§
D. HRS
is
unconstitu-
1102,
added).
supra
(emphasis
Rule
note 9
tional.
connection,
Commentary
In that
on Rule
unequivocally
present
1102
“[t]he
states that
argues
§§
that HRS
706-
precludes
upon
rule
‘comment on
the evi
662(1), part of Hawai'i’s extended term sen
cases,”
dence’
all
without
limitation.
statute,
tencing
light
is unconstitutional in
Commentary
(emphasis
on HRE Rule 1102
Supreme
the United States
Court’s decision
added). Therefore,
does,
HRE Rule 1102
in
466,120
in Apprendi
Jersey,
v. New
530 U.S.
deed,
interjected
apply to the circuit court’s
2348,
(2000). Hauge
S.Ct.
one and those described added). 706-662(5) (6), §§ other. Kaua, light of this court’s decision rendering facts' Specifically, the at issue 706-662(1) §§ HRS sentencing term determina extended is unconstitutional is without merit. 706-662(1), (3), §§ tion HRS under implicate completely considerations “ex V. CONCLUSION trinsic” to the elements of offense with charged analysis, and of the defendant was affirm foregoing Based on we convicted; accordingly, which he was judgment court’s circuit conviction sentencing judge should found sentence. [, [State
accordance with
Huelsman
v.]
(1979),]
ACOBA, J.,
Haw.
yond the trier of a reasonable doubt
fact in to afford the defendant his order rights procedural pro due
constitutional by jury. Tafoya,
cess and a trial 91 Ha 900-01;
waii at 982 P.2d