State v. Keanaaina ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-APR-2020
09:36 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
SAMSON K. KEANAAINA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(3CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Fujise and Wadsworth, JJ.)
I. INTRODUCTION
Defendant-Appellant Samson K. Keanaaina (Keanaaina)
appeals from the November 17, 2017 Judgment of Conviction and
Sentence entered by the Circuit Court of the Third Circuit
(Circuit Court).1 After a jury trial, the Circuit Court
convicted Keanaaina of Prohibited Acts Related to Drug
Paraphernalia, Hawaii Revised Statutes (HRS) § 329-43.5(a)
(Supp. 2019); Promoting a Dangerous Drug in the Third Degree, HRS
§ 712-1243(1) (2014); Promoting a Detrimental Drug in the Third
Degree, HRS § 712-1249(1) (2014); and Attempted Promoting a
Controlled Substance in, on or near Schools, School Vehicles,
Public Parks, or Public Housing Projects or Complexes, HRS
§§ 705-500(1)(b) (2014) and 712-1249.6(1) (2014).
On appeal, Keanaaina contends that (a) his Motion to
Suppress was wrongfully denied because (1) the police officers
1
The Honorable Melvin H. Fujino presided.
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failed to knock and announce and (2) the warrant did not permit
search of Keanaaina's backpack; (b) Juror #7 should have been
excused immediately upon the Circuit Court's learning that she
was a neighbor to a police officer witness (Police Officer
Witness); (c) Keanaaina's trial counsel was ineffective for
failing to object to the prosecutor's line of questioning of
Keanaaina; and (d) there would have been insufficient evidence to
convict Keanaaina if the Motion to Suppress had been granted.
II. BACKGROUND
On March 8, 2017, police executed a search warrant for
a homeless woman and the campsite she lived in at the Old Kona
Airport Park. The several police officers yelled at least five
times from as close as fifteen feet away from the tent announcing
their office, that they had a warrant, and asking all individuals
present to exit their tents. The police did not knock on the
woman's tent; there was nothing to knock on but a tarp. However,
Officer Michael Hardie, who was "up against the tent" yelled into
the tent "five to six times", announcing police presence and
asking the occupant to come outside. In response, many
individuals exited their tents, including the woman who was the
target of the warrant. The woman told an officer that her
sleeping boyfriend, Keanaaina, was hearing impaired and likely
could not hear the officers' command to exit; therefore, one
officer moved a futon out of the way, entered the tent, and
tapped on the man's shoulder to wake him up. Drugs and drug
paraphernalia were discovered inside two backpacks and two
Hydroflasks located on the bed on which the woman and the man had
been sleeping.
III. POINTS ON APPEAL
Keanaaina alleges the following points of error on
2
appeal:
2
The Opening Brief fails to comply with Hawai #i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4)(ii) and (iii) in that Keanaaina fails to show
where in the record the alleged error occurred and where in the record the
(continued...)
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A. The Circuit Court erred in denying Keanaaina's
Motion to Suppress upon the circumstances
surrounding the execution of the search warrant.
B. The Circuit Court abused its discretion by failing
to immediately excuse Juror #7, who had a personal
connection to a police officer witness.
C. The defense counsel was ineffective for failing to
object to questions on cross-examination that were
outside the scope of direct and were evidence of
prior bad acts.
D. The wrongful introduction of evidence obtained
through the search warrant was not harmless error.
IV. STANDARDS OF REVIEW
A. Motion to Suppress
We review a circuit court's findings of fact in a
pretrial ruling according to the following standard:
Appellate review of factual determinations made by the
trial court deciding pretrial motions in a criminal
case is governed by the clearly erroneous standard. A
finding of fact is clearly erroneous when (1) the
record lacks substantial evidence to support the
finding, or (2) despite substantial evidence in
support of the finding, the appellate court is
nonetheless left with a definite and firm conviction
that a mistake has been made.
State v. Okumura, 78 Hawai#i 383, 392, 894 P.2d 80, 89
(1995) (citations and internal quotation marks omitted).
"The circuit court's conclusions of law are reviewed under
the right/wrong standard." State v. Pattioay, 78 Hawai #i
455, 459, 896 P.2d 911, 915 (1995) (citation omitted).
Furthermore,
the proponent of a motion to suppress has the burden
of establishing not only that the evidence sought to
be excluded was unlawfully secured, but also, that his
or her own Fourth Amendment rights were violated by
the search and seizure sought to be challenged.
State v. Abordo, 61 Haw. 117, 120-21, 596 P.2d 773, 775
(1979) (citation and footnote omitted). . . . The proponent
of the motion to suppress must satisfy this "burden of proof
by a preponderance of the evidence." Pattioay, 78 Hawai #i
at 466, 896 P.2d at 922 . . . (citation omitted).
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(...continued)
alleged error was objected to or the manner in which the alleged error was
brought to the attention of the court or agency. Counsel is warned that
future violations of the rules of court may result in sanctions.
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State v. Anderson, 84 Hawai#i 462, 466-67, 935 P.2d 1007, 1011-12
(1997) (brackets and emphases omitted).
B. Jury Challenges for Cause
Hawai#i appellate courts review a trial court's
decision to pass a juror for cause under the abuse of discretion
standard. State v. Kauhi, 86 Hawai#i 195, 197, 948 P.2d 1036,
1038 (1997). "The trial court abuses its discretion when it
clearly exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant." Id. (citation and internal quotation marks
omitted).
C. Ineffective Assistance of Counsel
When reviewing a claim of ineffective assistance of
counsel, [the appellate court] looks at whether defense
counsel's assistance was within the range of competence
demanded of attorneys in criminal cases. The defendant has
the burden of establishing ineffective assistance of counsel
and must meet the following two-part test: 1) that there
were specific errors or omissions reflecting counsel's lack
of skill, judgment, or diligence; and 2) that such errors or
omissions resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense. To satisfy
this second prong, the defendant needs to show a possible
impairment, rather than a probable impairment, of a
potentially meritorious defense. A defendant need not prove
actual prejudice.
State v. Wakisaka, 102 Hawai#i 504, 513-14, 78 P.3d 317, 326-27
(2003) (citations, internal quotation marks, and footnote
omitted).
V. DISCUSSION
A. The Circuit Court Properly Denied the Motion to Suppress.
Keanaaina contends that the denial of the Motion to
Suppress was wrong because the evidence had been illegally
obtained when (1) the police failed to "yell out 'KNOCK KNOCK',
and demand entry" prior to breaking into the tent; and (2) the
police searched a backpack they should have realized belonged to
Keanaaina, who was a visitor.3
3
Keanaaina also purports to challenge the specificity of the
warrant, but does not identify in what way the warrant's specificity was
lacking. Therefore, we do not analyze this argument further.
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1. The Search Was Legal Because, Although Knock and
Announce Did Not Apply, the Police Nevertheless
Complied with Its Requirements.
When executing a search warrant, a police officer may
enter the
house, store, or other building . . . designated as the
place to be searched . . . without demanding permission if
the officer finds it open. If the doors are shut, the
officer shall declare the officer's office and the officer's
business and demand entrance. If the doors, gates, or other
bars to the entrance are not immediately opened, the officer
may break them[.]
HRS § 803-37 (2014). The Hawai#i Supreme Court has repeatedly
stated that, when interpreting a statute, an appellate court's
foremost obligation is to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.
And where the language of the statute is plain and
unambiguous, [a court's] only duty is to give effect to [the
statute's] plain and obvious meaning.
State v. Wells, 78 Hawai#i 373, 376, 894 P.2d 70, 73 (1995)
(citations, original quotation marks, and brackets omitted;
brackets added). Assuming HRS § 803-37 was applicable to the
tent involved in this case,4 the tent did not have a clearly
defined door. Therefore, whether a door was "open" or "closed" -
the latter state triggering the requirements of the statute - was
also not clear.
Assuming the existence and closed status of the "door",
HRS § 803-37 requires police officers to "declare the officer's
office and the officer's business; and demand entrance" prior to
executing a search warrant. State v. Dixon, 83 Hawai#i 13, 17
n.4, 924 P.2d 181, 185 n.4 (1996). The purposes of this so-
called knock and announce rule are to "(1) reduce the potential
of violence to both occupants and police resulting from an
unannounced entry; (2) prevent unnecessary property damage; and
4
The terms "house" and "building" are not defined in the statute.
A shelter made from poles and overlapping tarpaulins and other materials,
referred to in this case as a tent, is arguably not a "house, store, or other
building" within common understanding. See House and Building, Merriam-
Webster's Collegiate Dictionary (11th ed. 2003).
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(3) protect the occupant's right of privacy[.]" Id. at 14, 924
P.2d at 182. The knock and announce rule is a mechanism that
"safeguard[s] individuals from the arbitrary, oppressive, or
harassing conduct of government officials" as guaranteed by
article I, section 7 of the Hawai#i Constitution. State v. Diaz,
100 Hawai#i 210, 217-18, 58 P.3d 1257, 1264-65 (2002). Where the
purposes of the knock and announce rules are not frustrated,
evidence obtained need not be suppressed. Dixon, 83 Hawai#i at
14, 924 P.2d at 182. In this case, all three of the knock and
announce rule purposes were fulfilled.
First, the ten-plus officers clearly and loudly
announced that they were police officers, that they had a search
warrant, and demanded that the individuals exit their tents,
thereby announcing their presence and reducing the potential of
violence to both occupants and police. HRS § 803-37; Dixon, 83
Hawai#i at 14, 924 P.2d at 182. By the plain language of the
statute, the officers were not required to actually knock on the
tent structure,5 but rather to ensure that the occupants heard
their announcement. Requiring police to knock on the tent
structure or, as suggested by Keanaaina, to yell "knock, knock"
would not be any more effective than the other orders the police
used here, thereby not increasing the chance that the occupants
heard the police's announcements. Furthermore, as the Circuit
Court concluded, upon the woman's exit from the tent, she
voluntarily opened her "door," whereby knock and announce was no
longer required. Dixon, 83 Hawai#i at 23, 924 P.2d at 191
("there is no unwarranted intrusion on the occupant's privacy
[where] the occupant has voluntarily surrendered his or her
privacy by opening the door.").
Moreover, there was testimony that police yelled both
demands for entry and for the occupants to leave their
5
The Circuit Court's finding that the structure was soft sided and
knocking would have made no noise is unchallenged on appeal and therefore
binding on this court.
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enclosures. Thus, the police complied with the requirements of
HRS § 803-37, as well as its first purpose.
Second, the officers were able to see the interior of
the tent through gaps and could therefore pick the entranceway
that would cause as little property damage as possible while
providing the greatest safety to themselves and the remaining
occupant, Keanaaina. As the Circuit Court concluded, there was
no "breaking" of a door. Instead, after the woman-resident
voluntarily exited the tent, the officers entered the tent by
lifting a flap and moved a couch, which was unlikely to cause
permanent property damage.
Furthermore, the police are entitled to "break" any
barrier denying the officers access to the structure if the "bars
to the entrance are not immediately opened." HRS § 803-37.
State v. Eleneki, 92 Hawai#i 562, 566, 993 P.2d 1191, 1195
(2000). "What would constitute a reasonable period of time to
respond to a knock and announcement must be determined by the
circumstances of each case." State v. Monay, 85 Hawai#i 282,
284, 943 P.2d 908, 910 (1997) (internal quotation marks and
brackets omitted) (quoting State v. Garcia, 77 Hawai#i 461, 468,
887 P.2d 671, 678 (App. 1995)). Here, several minutes passed
between the officers first requesting that the occupants exit and
the officers entering the tent, and the officers only entered
after learning that verbal commands were unlikely to be heard by
the remaining occupant of the tent. This delay was reasonable
and entitled the police officers to lift the flap and move the
couch. See Diaz, 100 Hawai#i at 219, 58 P.3d at 1266 (holding
that a fifteen seconds lapse before forcibly entering the
interior office of a business during business hours was
reasonable).
Third, the officers protected Keanaaina's privacy as
much as possible under the circumstances by providing Keanaaina
several minutes to respond. Upon learning from his girlfriend
that Keanaaina was likely unable to hear the officers because he
is hearing impaired, and yelling yielded no response from
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Keanaaina, the police officers reasonably entered the structure
to physically tap on his shoulder to wake him up.
Based on this record, the police officers complied with
the requirements and purposes of HRS § 803-37 and the Circuit
Court did not err when it denied Keanaaina's Motion to Suppress.
2. The Police Properly Seized and Searched the Gray
Backpack Pursuant to the Search Warrant.
Keanaaina asserts that, because there were two
backpacks on the bed on which one man and one woman slept, "[i]t
defies logic to conclude other than that the 'Hello Kitty' model
belonged to [the woman] and the SWISSGEAR model belonged to"
Keanaaina, and the police therefore illegally searched the gray
SWISSGEAR backpack. Keanaaina's argument is without merit.
"[A] lawfully issued warrant to search premises extends
to the officers executing it the 'authority to search, in a
reasonable manner, whatever spots within the described premises
their professional experience indicates may be used as a cache'
for the items named in the warrant." State v. Nabarro, 55 Haw.
583, 583, 525 P.2d 573, 574 (1974) (quoting State v. Davenport,
55 Haw. 90, 100, 516 P.2d 65, 72 (1973)).
[T]he police cannot realistically be expected to avoid
searching the property of a mere visitor to the premises
unless they are aware of its ownership. Absent a
requirement of such awareness, the effective execution of a
warrant to search a place would be impossible since the
police could never be sure that a plausible repository for
items named in the warrant belongs to a resident, and hence
is searchable, or to a non-resident, and hence is not
searchable. Because of this, without notice of some sort of
the ownership of a belonging, the police are entitled to
assume that all objects within premises lawfully subject to
search under a warrant are part of those premises for the
purpose of executing the warrant.
Nabarro, 55 Haw. at 587-88, 525 P.2d at 576-77 (emphases added).
Because the warrant authorized a search of every backpack found
within the woman's (Keanaaina's girlfriend) campsite, absent
clearly identifying markings on the gray backpack, the warrant
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authorized the search of Keanaaina's backpack.6 Nabarro, 55 Haw.
at 593-94, 525 P.2d at 580. There is no evidence in the record
that the police knew that the gray backpack belonged to Keanaaina
prior to searching it. No photographs in evidence depicted, and
no witness identified, any exterior markings, writings, or other
symbols that identified the gray bag as belonging to a male, let
alone Keanaaina.7 Thus, Keanaaina failed to show the police
should have known the gray backpack belonged to him prior to its
seizure.
When the officers -- pursuant to the valid search
warrant of the tent structure -- opened the gray backpack, they
immediately observed controlled substances. The officers did not
search the backpack further at that time, but, rather, brought
the bag to the police station to complete the search in a
controlled environment. Only upon the subsequent search did the
police uncover Keanaaina's identification cards inside the
backpack, for the first time showing who the likely owner of the
backpack was. Under the plain view doctrine, the items the
officers observed after warrant-authorized opening of the
backpack are admissible, and the subsequent discovery of the
backpack's true owner does not negate the admissibility of the
evidence. See State v. Meyer, 78 Hawai#i 308, 312-13, 893 P.2d
159, 163-64 (1995). Thus, the Circuit Court's Conclusion of Law
number 15, that "[t]he backpack which contained the
identification cards of the defendant was not clearly the
6
Citing State v. Joyner, 66 Haw. 543, 545-46, 669 P.2d 152, 153-54
(1983), Keanaaina contends that he retained a reasonable expectation of
privacy in the backpack because of its proximity to him. However, unlike the
case at hand, in which the search warrant authorized search of all
repositories that could contain methamphetamine, the search warrant in Joyner
authorized a search for gambling devices in a bath house. Id. Thus, the
defendant was found to have a reasonable expectation of privacy in his small,
zippered bag, which was located within his closed athletic bag, presumably
because the gambling devices were unlikely to fit inside the searched bags.
Id.
7
Keanaaina contends that the backpack "had all the indicia of the
backpack of a male," yet, beyond the color of the backpack, he does not
specify what indicia would make the backpack that of a male versus that of a
female.
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property of one or the other of the occupants of the structure,
and the defendant had ties to the residence, so the search of the
backpack was not improper" was not wrong.
B. Any Error in Failing to Immediately Excuse a Juror Who Knew
a Witness Was Harmless.
Keanaaina contends that Juror #7 should have been
immediately dismissed for cause when she disclosed to the Circuit
Court that one of the police officers who had just testified
(Police Officer Witness) was her neighbor, and that Juror #7 knew
some of Keanaaina's family members.8
Juror #7 apparently did not recognize the Police
Officer Witness's name when it was read and only after she had
watched the Police Officer Witness testify in person did Juror #7
recognize him and bring the matter to the Circuit Court's
attention. The Circuit Court instructed Juror #7 not to discuss
the matter with the other jurors and did not immediately dismiss
her. Later in the trial, after the Circuit Court conducted a
second colloquy with Juror #7, she was excused for cause before
jury deliberation, and the Circuit Court again admonished her not
to discuss the matter with other jurors.
Jurors are presumed to have followed the Circuit
Court's instructions. See, e.g., State v. Holbron, 80 Hawai#i
27, 46, 904 P.2d 912, 931 (1995) (holding that there is a "sound
presumption of appellate practice that jurors are reasonable and
generally follow the instructions they are given.") (citation,
internal quotation marks and brackets omitted); State v. Austin,
8
Keanaaina contends that he is awaiting approval to view the Third
Circuit Court's bench book, in which he apparently expects there to be
language similar to the New Jersey's Judiciary Bench Manual on Jury Selection
that he attached to his Opening Brief. First, New Jersey's manual provides
"procedural and operational guidance," and does not require even New Jersey
judges to follow the policies to the letter. New Jersey Judiciary Bench
Manual on Jury Selection i (Dec. 4, 2014),
https://www.njcourts.gov/pressrel/2014/Bench%20Manual%20on%20Jury%20Selection%
20-%20promulgated%20Dec%204%202014.pdf (last visited March 30, 2020) (emphasis
added). Second, even New Jersey's policies do not prohibit the Circuit
Court's actions in this case; instead, judges "are given substantial
deference" as to whether to excuse or rehabilitate jurors, even though
rehabilitation is not "preferred." Id. at 35. Finally, Keanaaina presents no
authority making New Jersey's bench book binding on the courts of this state.
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70 Haw. 300, 308, 769 P.2d 1098, 1102 (1989) ("A jury is presumed
to follow a trial court's directive, so any prejudice was
eliminated."). Therefore, it is presumed that Juror #7 did not
talk to other jurors about the reasons she was eventually excused
for cause.
Because Juror #7 was excused before deliberations and
we may presume no disclosure of the reasons she was excused was
made to the remaining jurors, any error in not excusing Juror #7
midtrial was fully alleviated. The Circuit Court did not abuse
its discretion by not immediately excusing Juror #7.
C. Defense Counsel Was Not Ineffective for Failing to Object to
Questions During Cross-Examination.
Keanaaina contends that he received ineffective
assistance of counsel when his trial counsel, despite Keanaaina's
Motion to Exclude Crimes, Wrongs, or Acts (Order to Exclude)
having been granted, failed to object to the prosecution asking
Keanaaina to identify drugs and drug paraphernalia from
photographs.
The Order to Exclude, consistent with the Hawaii Rules
of Evidence (HRE) Rules 6099 and 611,10 prevented the State from
introducing evidence of Keanaaina's criminal history absent
Keanaaina opening the door to the issue. The Order to Exclude
restricted the use of other crimes, wrongs, or acts for any
purpose, however, thereby preventing the prosecution's use of
9
HRE Rule 609(a) provides, in part,
[I]n a criminal case where the defendant takes the stand,
the defendant shall not be questioned or evidence introduced
as to whether the defendant has been convicted of a crime,
for the sole purpose of attacking credibility, unless the
defendant has oneself introduced testimony for the purpose
of establishing the defendant's credibility as a witness, in
which case the defendant shall be treated as any other
witness as provided in this rule.
10
HRE Rule 611(b) provides, that "[c]ross-examination should be
limited to the subject matter of the direct examination and matters affecting
the credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination."
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such evidence under HRE Rule 404(b),11 which permits presentation
of evidence to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, modus operandi, or absence of mistake
or accident.
During direct examination, Keanaaina testified that he
was aware that his girlfriend was a drug user, but he denied
knowing that she was a drug dealer until after he reviewed the
police report. On cross-examination, the State asked whether
Keanaaina's knowledge of his girlfriend's drug use allowed him to
recognize what certain drugs and drug paraphernalia -- including
methamphetamine pipes, straw scoopers, digital scales, plastic
bags for holding methamphetamine -- looked like, and whether the
amount of methamphetamine seized was "a lot." This line of
questioning did not explore Keanaaina's criminal history but,
rather, tested his credibility as a witness because the depth of
his knowledge suggested that Keanaaina likely knew that his
girlfriend was dealing drugs even before he read the police
report, thereby impeaching Keanaaina by questioning the veracity
of his testimony.12 As such, the line of questioning was proper,
and the failure to object was not evidence of ineffective
assistance of counsel.
Furthermore, trial counsel could have made a tactical
decision to not object. If counsel had objected to a question
regarding Keanaaina's knowledge of his girlfriend's criminal
activities, it could have suggested to the jury that evidence
existed of Keanaaina's criminal activities. "Specific actions or
11
HRE Rule 404(b) provides, in part:
Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith.
It may, however, be admissible where such evidence is
probative of another fact that is of consequence to the
determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident[.]
12
HRE Rule 607 provides, "[t]he credibility of a witness may be
attacked by any party, including the party calling the witness."
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omissions alleged to be error but which had an obvious tactical
basis for benefitting the defendant's case will not be subject to
further scrutiny." Briones v. State, 74 Haw. 442, 462-63, 848
P.2d 966, 976 (1993) (emphasis in original) (citing State v.
Tyrrell, 60 Haw. 17, 29, 586 P.2d 1028, 1036 (1978)). Given that
this line of questioning was not inconsistent with Keanaaina's
theory of the defense, which was that the police, in removing
articles from the two backpacks placed the drugs from the woman's
backpack into his own, objecting to this line of questioning may
have undercut that theory. Objecting to questions eliciting that
Keanaaina knew what certain drugs and paraphernalia looked like
could have left the impression the defense sought to hide
knowledge that did not incriminate him in this situation.
Trial counsel was not ineffective for failing to object
to the line of questioning on cross-examination.
D. The Introduction of Evidence Obtained Through Execution of
the Search Warrant Was Not Error.
Keanaaina contends that it was not harmless error to
introduce the evidence seized from the search because his
conviction was for crimes that all required possession of a
controlled substance. However, because the evidence was properly
admitted, there was no error, and Keanaaina's argument is without
merit.
VI. CONCLUSION
For the foregoing reasons, the November 17, 2017
Judgment of Conviction and Sentence entered by the Circuit Court
of the Third Circuit is affirmed.
DATED: Honolulu, Hawai#i, April 13, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Victor M. Cox,
for Defendant-Appellant. /s/ Alexa D.M. Fujise
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Hawai#i, Associate Judge
for Plaintiff-Appellee.
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