State v. Ngo.Â

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-11-0000049
04-JAN-2013
09:29 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
CHRIST V. NGO, Petitioner/Defendant-Appellant.
NO. SCWC-11-0000049
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000049; CR. NO. 09-1-1198)
January 4, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
AND CIRCUIT JUDGE PERKINS, ASSIGNED DUE TO VACANCY
OPINION OF THE COURT BY ACOBA, J.
We hold that in the indictment against Petitioner/
Defendant-Appellee Christ V. Ngo (Petitioner) charging him with
the offense of Accidents Involving Death or Serious Bodily
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Injury, Hawai#i Revised Statutes (HRS) § 291C-121 (Supp. 2007),
Respondent/Plaintiff-Appellee State of Hawai#i (Respondent)
failed to allege the requirements of HRS § 291C-14(a) and (b),2
1
HRS § 291C-12 provides in relevant part as follows:
(a) The driver of any vehicle involved in an
accident resulting in serious bodily injury to or
death of any person shall immediately stop the vehicle
at the scene of the accident or as close thereto as
possible but shall then forthwith return to and in
every event shall remain at the scene of the accident
until the driver has fulfilled the requirements of
section 291C-14. Every such stop shall be made without
obstructing traffic more than is necessary.
(Emphasis added.)
2
HRS § 291C-14 provides in relevant part as follows:
(a) The driver of any vehicle involved in an accident
resulting in injury to or death of any person or damage to
any vehicle or other property which is driven or attended by
any person shall give the driver’s name, address, and the
registration number of the vehicle the driver is driving,
and shall upon request and if available exhibit the driver's
license or permit to drive to any person injured in the
accident or to the driver or occupant of or person attending
any vehicle or other property damaged in the accident and
shall give such information and upon request exhibit such
license or permit to any police officer at the scene of the
accident or who is investigating the accident and shall
render to any person injured in the accident reasonable
assistance, including the carrying, or the making of
arrangements for the carrying, of the person to a physician,
surgeon, or hospital for medical or surgical treatment if it
is apparent that such treatment is necessary, or if such
carrying is requested by the injured person; provided that
if the vehicle involved in the accident is a bicycle, the
driver of the bicycle need not exhibit a license or permit
to drive.
(b) In the event that none of the persons specified is in
condition to receive the information to which they otherwise
would be entitled under subsection (a), and no police
officer is present, the driver of any vehicle involved in
the accident after fulfilling all other requirements of
section 291C-12, 291C-12.5, or 291C-12.6, and subsection (a)
of this section, insofar as possible on the driver's part to
be performed, shall forthwith report the accident to the
2
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
and under the circumstances of this case, Petitioner was
prejudiced by this defect in the indictment. Consequently, this
case must be dismissed without prejudice. We therefore vacate
the April 5, 2012 judgment of the Intermediate Court of Appeals
(ICA) filed pursuant to its March 21, 2012 Summary Disposition
Order, affirming the November 30, 2010 Judgment of Conviction and
Probation Sentence filed by the Circuit Court of the First
Circuit (the court)3 on August 5, 2010.
I.
On July 30, 2009, Respondent charged Petitioner with
violating HRS § 291C-12. The indictment alleged as follows:
On or about the 15th day of July, 2009, to and including the
16th day of July, 2009, in the City and County of Honolulu,
State of Hawai#i, [Petitioner], as the driver of a vehicle
involved in an accident resulting in serious bodily injury
to or death of Justin Lee [(Lee)], did fail to immediately
stop the vehicle at the scene of the accident or as close
thereto as possible, and did fail to forthwith return to and
in every event remain at the scene of the accident and
fulfill the requirements of Section 291C-14 of the Hawai#i
Revised Statutes, thereby committing the offense of
Accidents Involving Death or Serious Bodily Injury, in
violation of Section 291C-12 of the [HRS].
(Emphasis added.)
nearest police officer and submit thereto the information specified in
subsection (a).
(Emphasis added.)
HRS § 291C-12.5 is essentially the same as HRS § 291C-12 except
that it governs the conduct of a “driver . . . involved in an accident
resulting in substantial bodily injury to any person” as opposed to an
accident resulting in “serious bodily injury to or death of any person[,]” HRS
§291C-12. HRS § 291C-12.6 governs the conduct of a “driver . . . involved in
an accident resulting in “bodily injury to any person.”
3
On December 1, 2008, this case was committed from the district
court of the first circuit to the court. The Honorable Michael A. Town
presided over the trial.
3
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
A.
At Petitioner’s trial, the following witnesses
testified on behalf of Respondent.
1.
Angella Smith (Smith) testified that, at the time of
the incident, Lee was her boyfriend. On the evening of July 15,
2009, Smith planned to meet Lee for “karaoke.”4 Lee and Smith
met approximately ten friends at a McDonald’s restaurant located
in Kahala, Honolulu (McDonald’s). After about ten to fifteen
minutes, the group decided to go to Zippy’s Restaurant (Zippy’s),
also located in Kahala. It was Smith’s understanding that there
was going to be a fight there.
Lee parked his car across from Zippy’s. As they exited
the car, Lee and Smith “heard a big bang” “like a firecracker”
from the lower level parking lot of Zippy’s. She and Lee ran
into the parking structure and observed some people fighting and
some people “busting windows.”
Smith saw Lee run across the parking lot. A white
Honda vehicle backed up and at the same time a gold-colored
Sports Utility Vehicle (SUV) drove forward and struck Lee’s legs
4
“Karaoke” is a device that plays instrumental accompaniments for a
selection of songs to which the user sings along[.]” Merriam Webster’s
Collegiate Dictionary 638 (10th ed. 1993).
4
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
and Lee fell to the ground. The Honda left, and the SUV started
“going forward” and ran Lee over.
Smith approached the passenger side of the SUV, pounded
on the windows and screamed, “My boyfriend’s under your car; My
boyfriend’s under your fucking car; It’s under your car”
approximately six to ten times. She jumped in front of the SUV
and pounded on the hood with both hands. Smith stepped aside and
the SUV drove forward. Lee was dislodged from under the SUV
after the vehicle went over a speed bump. The SUV then drove
away.
2.
Lee testified that he and Smith were driving to the
karaoke place when his friend, Andrew, called and told Lee he
might be getting into a fight and needed Lee’s help. Andrew told
Lee to meet him at McDonald’s. When Lee and Smith arrived at
McDonald’s, there were approximately ten to fifteen people there.
Andrew told Lee “that he had some trouble with some people and
that they were going to fight at the Zippy’s [parking lot].”
Lee parked his car near a gas station close to Zippy’s.
The people he was with at McDonald’s were already running into
the lower level parking structure of Zippy’s. Lee heard
something that “[s]ounded like some kind of firecracker” just
before he entered the structure.
5
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
When Lee first entered, people were running around;
some of them were throwing punches, others were running away. He
recognized his friends but did not recognize the others there.
Although Lee was not armed, Lee believed he may have seen one or
two of his friends carrying weapons.5
Lee was running through the parked cars when he heard
tires screeching. At that time he was between two parked cars.
He looked to his right and saw an SUV coming toward him. He
believed the silver parked car “reversed or something” because he
“got smashed between the silver car and the SUV[.]”
The SUV struck his lower right leg. He fell face down
and the front two wheels of the SUV ran over him. While under
the vehicle, he heard people yelling. Smith was yelling “My
boyfriend’s underneath the car.”
The SUV dragged Lee’s body across the parking lot and
he was finally dislodged when the vehicle went over a speed bump.
He saw the SUV leave the parking lot as his friends began to
surround him. Lee was treated for his injuries and was in the
hospital for nearly two months.
B.
The following witnesses testified for the defense.
1.
Petitioner’s friend, Shinichi Wood (Wood), testified
5
Lee did not describe the weapons these individuals were carrying.
6
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
that a conflict had developed between Petitioner’s friends and
Lee’s friends. On the night of July 15, 2009, Wood and
Petitioner were eating at Zippy’s with some friends. After they
finished, they went downstairs to the parking lot. Suddenly,
several cars pulled up across the street. Wood heard what he
believed were gunshots. Wood and his friends were afraid and
decided to leave before anyone was hurt.
Wood and two other friends, Justin Perreira (Perreira)
and Lane Morishima (Morishima) jumped into Petitioner’s vehicle.
At that moment, a group approached Petitioner’s vehicle with
metal batons and started “smashing the windows.” The group
shattered the passenger window and attempted to hit Wood with the
baton. There were at least “five guys” on Wood’s side (the
passenger side) of the vehicle.
They were eventually able to leave Zippy’s and drove to
a “Shell” gas station (Shell) located in Kapahulu. Wood was
unaware that the vehicle had struck anyone. Nothing about
Petitioner’s mannerisms or demeanor suggested that Petitioner
knew he had struck anyone. While at Shell, Wood received several
phone calls from individuals stating that someone may have been
run over by a “Murano” vehicle. Wood did not identify
specifically who the calls were from, stating, “People would
just, like, call randomly[.]” At the time, he believed the
Murano referred to was Petitioner’s Murano.
7
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
However, Wood did not believe that anyone had been run
over. It was not until he woke up the morning after this
happened that several individuals told him the incident was on
the newscast.
2.
Alex Heneralau (Heneralau) testified that on the
evening of July 15, 2009, he was standing in the lower level
parking structure of Zippy’s when several cars pulled up and
parked across the street. A “bunch of people” got out and ran
toward them. Someone “fired something”; Heneralau “thought it
was gunshots.” Something flew toward his car6 and left an
indentation on his door. Heneralau and his girlfriend jumped
into his car and people began striking his windows and broke the
passenger window.
Heneralau said, “Let’s get out of here.” As he was
attempting to reverse, his car hit the front of Petitioner’s car.
Heneralau exited the parking structure. After communicating with
other friends over the phone, they decided to meet at Shell.
Heneralau went home after he left Shell.
3.
Perreira testified that he was with Petitioner and
6
As set forth supra, Lee testified that a white Honda backed up
just before he was struck by Petitioner. Heneralau apparently drove a gray
Scion vehicle. It is unclear whether Lee had testified incorrectly regarding
the model of Heneralau’s car or if he was referring to another car backing up,
not belonging to Heneralau.
8
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
their friends at Zippy’s because a conflict had arisen between
their group and Lee’s group. Perreira, Petitioner, and their
friends were standing in the parking lot and observed “the other
group” pacing back and forth at a gas station across the street.
The other group started running toward them. Perreira “stood
[his] ground” and “stayed there,” but the “other guys [] in [his]
group” “were kind of, like, Oh, let’s get out of here”; “They’re
coming, they’re coming[.]” One “or two guys” were carrying bats.
Someone pulled out a firearm and shot it toward the
roof of the parking structure; the individual was “running and
then waive[d] the gun up in the air,” and yelled “chee-hoo.”
Perreira could not recall who was carrying the firearm. He was
not sure whether it was flare gun or a “real” gun. When Perreira
heard the first shot, he panicked and everyone “ran for [their]
lives.” Perreira “looked for the first car he could get into[,]”
which was Petitioner’s Murano. The window on the driver’s side
door was open so Perreira jumped through the window and crawled
into the back seat.
Perreira heard two or three more shots. Petitioner
believed one of the bullets had gone through Heneralau’s window
because he saw “a stream” through the window and he did not
believe a “bat could make a stream like that. It was a straight
piercing.”
9
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Wood and Morishima were also in Petitioner’s vehicle.
Perreira heard “cars getting banged” and “windows cracking.”
Perreira crouched down “with [his] hands behind his head” to
avoid the glass from hitting his face. As he was “tucked” down,
he heard a girl screaming, “My boyfriend, my boyfriend.”
Perreira believed the girl’s boyfriend was being hit by a bat.
He was not aware that anyone was struck by Petitioner’s vehicle.
He remembered at some point they “were stuck” and the
“car just kept getting whacked by a bat” so Perreira yelled at
Petitioner, “We need to get the fuck out of here[,]” “do
something, move.” He “peeked to look up” and saw “a male trying
to get inside the car, so [Perreira] assumed that was the guy
that was getting hit by a bat[.]” The “car wasn’t moving[.]”
Perreira thought that a speed bump was preventing them from
moving, and that Petitioner “floored it” and “got over” it.
Perriera then called their other friends who told them to meet at
Shell.
After they left the structure, they pulled over. There
was glass “everywhere” but no one was injured seriously. When
they arrived at Shell, the brother of Heneralau’s girlfriend,
Chris Khamlong (Khamlong), was there. Khamlong was on the phone
attempting to determine who had a firearm. He heard Khamlong
mention something about someone being “run over [by] the Murano”
but everyone at Shell “thought it was all BS.” Perreira and
10
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Petitioner left Shell and went to the home of their friend, Lance
Fung Chen Pen (Lance).
Sometime the next morning Perreira learned from a
newscast that someone had in fact been struck by a vehicle. By
then, “[i]t was too late for [them] to call the police because
[Petitioner’s] auntie already called the police[.]”
4.
Petitioner testified that during the late evening of
July 15, 2009, he and his friends were “talking stories” in the
lower level parking structure of Zippy’s when Heneralau said,
“Oh, they’re here.” Petitioner looked across the street and saw
the silhouette of several people jumping up and down and yelling.
Petitioner began backing up toward his car in case something
happened. The “guys started running” toward them saying, “Oh,
where you think you guys going” in a threatening manner. He then
heard a loud “bang[,]” which sounded like a gunshot.
Petitioner’s “brain just told [him] to get out of
there”; “Everything went red” and Petitioner “was panicking.”
Petitioner unlocked his car, a Murano SUV, and jumped into the
driver’s seat. Wood, Perreira, and Morishima also jumped into
his car. Petitioner backed out of the stall and started to go
forward. Petitioner’s front bumper hit Heneralau’s rear bumper
as Heneralau was reversing. A group of people began hitting his
vehicle with instruments, shattering both windows on the
11
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
passenger side. Petitioner “duck[ed] down” and attempted “to
drive forward at the same time.”
Petitioner was pressing on the gas pedal but his car
was not moving. Petitioner believed that his wheel had been
damaged when he collided with Heneralau’s car, or that someone
had thrown something under his vehicle. Petitioner did not see
his vehicle make contact with any person and did not know Lee was
under his vehicle. When they eventually exited the parking
structure, Perreira told Petitioner to go to Shell. At Shell
Petitioner heard that someone may have been run over but
Petitioner did not believe this because he “didn’t see this
[himself]” and “it was coming from the other side.”
After a short while, Petitioner left Shell and
proceeded to Lance’s home. The next morning, on July 16, 2009,
Lance returned from his paper route and told Petitioner to watch
the newscast. “The news was talking about an attempted murder, a
body being dragged, and [it] showed a picture of Zippy’s.”
Petitioner started thinking about his car not being able to move
and “connected the dots, slowly[.]” Petitioner called his aunts
and asked them to accompany him in turning himself in to the
police.
5.
Lance testified that a group ran toward them with bats
and batons. He heard a gunshot as he was entering his car.
12
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Heneralau was the first to exit the parking structure in his
vehicle. Lance followed after Heneralau. One of his passengers,
Kari Traylor (Traylor) mentioned that Petitioner “was trapped in
the back.” Traylor said, “[Petitioner] is stuck,” but Lance kept
driving because there were a lot of people surrounding
Petitioner’s vehicle who had broken Petitioner’s windows.
After exiting Zippy’s, Lance drove straight to Shell.
Lance did not know anyone was struck by a vehicle. “People
[were] telling [them] that somebody was run over” but he did not
believe them “at all.” After they left, Petitioner stayed at
Lance’s home because Petitioner “didn’t want to bring trouble to
his family.” The next morning, Lance returned home after doing
his paper route and received a call from a friend, who told him
to watch the news. The newscast indicated that someone had been
dragged by a car at Zippy’s the previous night.
Lance told Petitioner to watch the news. Petitioner
was afraid and called his aunts to meet him at Lance’s home.
The police arrived shortly thereafter.
On cross-examination, Respondent asked whether
Petitioner, Heneralau, and Perreira were also at Shell, and Lance
indicated that they were. Lance also remembered Khamlong being
at Shell. Lance was asked how much time had passed from the time
he left Zippy’s to the time he arrived at Shell. Lance
responded, “Twenty to twenty-five minutes.” He remained at Shell
13
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
for approximately ten to fifteen minutes before leaving.
Petitioner stayed at his home that night.
C.
On redirect examination of Lance, defense counsel7
asked questions pertaining to the order in which Petitioner,
Heneralau, and Lance proceeded out of the parking structure.
Immediately following redirect examination, the court asked Lance
the following questions:
Q. Okay. At what point did you think maybe that somebody
had been run over?
A. When we got to the Shell gas station.
Q. When you got to the Shell – Kapahulu Shell?
A. Yes.
Q. And what made you think that?
A. [Khamlong] was just –-
Q. Nice and loud. You’re mumbling.
A. [Khamlong] was all mad. And then they had, like, all
this [sic] calls coming in.
Q. [Khamlong] was mad?
A. Yeah.
Q. What was he mad about?
A. He was talking about somebody getting runned [sic]
over.
Q. [Khamlong] was?
A. Yes.
Q. This is, like, a few minutes after you left the
Zippy’s?
A. Yes. It was at the gas station.
. . . .
Q. So this whole scene came down at Zippy’s Kahala;
right?
A. Yes.
Q. And then you all left; right?
A. Yes.
Q. And you went to the Shell Kapahulu?
A. Yes.
Q. And that’s when you first thought in your head maybe
somebody got run over?
A. Yes.
Q. And you thought that because [of Khamlong?]
. . . .
A. Yes.
7
At trial, Petitioner was represented by private counsel. On
appeal, he is represented by the Office of the Public Defender.
14
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Q. Okay. And that was discussed in front of all of you?
A. Yes.
Q. Discussed in front of [Petitioner]?
A. Yes.
Q. Okay. And who did you think – which car do you think had
run the person over?
A. We didn’t know at the time.
Q. You knew somebody might have been run over?
A. No.
Q. Huh?
A. No, not really.
Q. But -– why did –-
A. Because they were, like, frustrating him over the phone. And
then, like, all I remember was [] Khamlong was, like willing to,
like, try and hit [Petitioner], or he was going to. He was, like,
super mad.
Q. [] Khamlong was trying to hit [Petitioner]?
A. No, not trying. He was pretty much ready to.
Q. And the reason why?
A. Because he’s friends with Justin.
Q. With which Justin?
A. Justin Lee.
Q. Justin Lee. [] Khamlong was friends with [] Lee?
A. Yes.
Q. He’s upset because somebody ran over [] Lee?
A. Yes.
Q. Is that right?
A. Yes.
Q. And he wanted to hit [Petitioner]? Or he was –- he was
making big body or just talking or what?
A. He was just talking.
Q. He was talking. Okay. What did [Petitioner] say, if
anything?
A. He was, like, I didn’t – he just didn’t know the whole time.
Q. He what?
A. He didn’t know the whole time.
Q. Didn’t know the whole time?
A. Yes.
Q. Okay. And then later on it turned out somebody had been run
over?
A. Yes.
Q. And dragged, right?
A. Yes.
Q. Did you know [] Lee?
A. No.
Q. Have you seen him since then?
A. No.
Q. All right. And how did [] Khamlong find this out? Over the
cell phone --
A. Yes.
Q. -- or he saw it?
A. Over the cell phone.
Q. Okay. Were people texting or calling?
A. Calling.
Q. They were calling?
A. Yes.
(Emphases added.)
15
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
On further redirect, defense counsel asked Lance the
following questions:
Q. Lance, did you believe somebody had been run over when
you were at the Shell?
A. No, not at all.
Q. Why didn’t you believe somebody had been run over?
A. Because I don't recall anything happening.
Q. And, I mean, after -- even after [] Khamlong was
saying this, did you believe that, oh, you know, for sure
somebody had been run over?
A. No.
Q. Okay. Why not?
A. I don't know. I just couldn't believe it.
Q. Okay.
A. There was, like, no proof. And I really can’t
see anybody getting runned [sic] over.
Q. Okay. And did [Petitioner] say anything about, Oh, I
ran over somebody?
A. No, not at all.
Q. Okay. So when did you believe somebody actually had
been run over?
A. The Zippy’s -- the news.
Q. The news.
The news the next morning -- or that early
morning after you came back from your paper route?
A. Yes.
Q. And what you knew in the news, what you learned
from the news, you believed what the news depicted,
right –
A. Yes.
(Emphases added.)
On recross-examination, Respondent asked, “to follow up
with what [the court] asked you,” did “Khamlong specifically used
[sic] the name ‘Justin Lee’ at the Kapahulu Shell station?”
Lance responded, “He just said ‘Justin.’” Respondent then asked,
did he say “that Justin had been run over?” Lance answered,
“Yes.”
D.
At the end of trial, the court found Petitioner guilty
as charged. The court stated, Petitioner “knew and was quite
16
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
aware of what he did. He struck [] Lee at the Kahala Zippy’s”
and Lee was under Petitioner’s car and dragged some way before he
was dislodged. The court found that Petitioner “did not report
this for some time after he was able to do so without harm to
himself or to his car.” The court concluded the “time lapse . .
. [was] both illegal and criminal in nature.” The court said
that, although Petitioner may “well now sincerely believe that he
didn’t see or know [] Lee was struck by his Murano[,]” the “facts
show otherwise beyond a reasonable doubt that he is guilty.”
According to the court, “[o]nce Petitioner reached Kapahulu Shell
-- if not before, he should have -- should have and did not call
911 and follow what the statute required. He did not return home
that night” and instead “stayed with a friend.” The court
concluded by stating, although his family “did the right thing
albeit a little too late and a little –- and too little,
[Petitioner] respectfully is found guilty.”
II.
Petitioner appealed to the ICA. Pertinent to
Petitioner’s application for writ of certiorari (Application),
Petitioner argued in his Opening Brief that the court committed
plain error and violated Petitioner’s constitutional right to a
fair and impartial tribunal by questioning Lance extensively and
eliciting evidence upon which the court specifically based its
finding of guilt. The ICA determined that the court’s
17
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
questioning of Lance did not constitute plain error. State v.
Ngo, No. CAAP-11-0000049, 2012 WL 954867, at *1 (App. Mar. 21,
2012) (SDO).8
III.
Petitioner presents the following questions9 in his
Application: (1) “[w]hether the ICA’s order affirming
Petitioner’s conviction constitutes an obvious inconsistency with
the Supreme Court’s April 12, 2012 decision in State v. Nesmith,
[127 Hawai#i 48, 276 P.3d 617 (2012)],” and (2) “[w]hether the
ICA gravely erred in concluding that [the court] did not abuse
its discretion when it engaged in prosecutorial questioning of
defense witness [Lance].” On June 15, 2012, Respondent filed a
Response to Petitioner’s Application (Response). Petitioner
filed a Reply to the Response on June 22, 2012 (Reply).
IV.
In connection with the first question, Petitioner
contends that the indictment was fatally defective because it did
8
The second point of error raised by Petitioner on appeal to the
ICA was that the court incorrectly convicted Petitioner because there was
insufficient evidence that Petitioner failed to forthwith report the accident
to a police officer when Petitioner turned himself in twelve hours after the
accident. The ICA declined to define “forthwith” to mean “within a reasonable
time under the circumstances” as opposed to “instantaneous action.” Ngo, 2012
WL 954867, at *3. The ICA concluded there was substantial evidence to support
the conclusion that by the time Petitioner reached Shell, he knew he had run
someone over and failed to report that accident within the time frame required
by HRS § 291C-12 and 291C-14. Id. Petitioner does not challenge the ICA’s
conclusion with respect to this issue in his Application and therefore it is
not addressed further.
9
The order in which Petitioner presented his questions is reversed
for analytical purposes.
18
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
not allege (1) the “intentional, knowing, and reckless states of
mind required for the HRS § 291C-12 offense” or (2) the
requirements of HRS § 291C-14(a) and (b), which Petitioner was
supposed to have violated in conjunction with HRS § 291C-12.
Petitioner acknowledges that because he challenges the indictment
for the first time on appeal, it “‘must be liberally construed.’”
(Quoting State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019
(1983).) Under the liberal construction standard, a conviction
will not be reversed on account of a defective indictment
“‘unless the defendant can show prejudice or that the indictment
cannot within reason be construed to charge a crime.’” (Quoting
Motta, 66 Haw. at 91, 657 P.2d at 1020.)
V.
Petitioner first contends that the indictment cannot be
construed to charge a crime because nothing in the indictment can
be read as alleging that the requisite states of mind for the
offense were intentional, knowing, or reckless. Additionally,
Petitioner urges that because the states of mind were not alleged
in the indictment, he did not have fair notice of the requisite
states of mind and therefore was prejudiced by the defect in that
regard. In view of our resolution of Petitioner’s other
arguments, and Respondent’s acknowledgment during oral argument
of its obligation to set forth the applicable states of mind in
the charge, this point is not discussed further.
19
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
VI.
In connection with the first question, Petitioner also
contends that the charge was deficient because it omitted any
allegation of the requirements of HRS § 291C-14, that are
“essential elements” of HRS § 291-12. As indicated, because
Petitioner challenges the sufficiency of the indictment for the
first time in his Application, the liberal construction standard
applies. See Motta, 66 Haw at 91. 657 P.2d at 1020. Under this
standard, this court “‘will not reverse a conviction based upon a
defective [oral charge] unless the defendant can show prejudice
or that the [oral charge] cannot within reason be construed to
charge a crime.’” Id.A.
It must be observed at the outset that Respondent
appears to have prosecuted this case on the basis that Petitioner
had failed to comply with HRS § 291C-12, and that the
requirements of HRS § 291C-14 were elements of HRS § 291C-12.
The indictment itself alleges that Petitioner “did fail to
immediately stop the vehicle at the scene of the accident or as
close thereto as possible, and did fail to forthwith return to
and in every event remain at the scene of the accident and
fulfill the requirements of Section 291C-14[.]” (Emphasis
added.) Also, as Petitioner asserts in his Reply, Respondent
20
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
stated during closing arguments that “Element No. 5” of the
charged offense was that Petitioner failed to “comply[] with the
requirements of the law” which are “set forth under 291C-14.” In
closing argument, Respondent asked, “What are the requirements of
the law?” Respondent stated, “They are set forth under [HRS §]
291C-14[.]” Respondent proceeded to recite the requirements
under both HRS § 291C-14(a) and (b):
In summary fashion the requirements of the law require
that a driver involved in an accident where a -- where death
or serious bodily injury has resulted shall give the
driver’s name, address, and registration number of the
vehicle to any person injured in the accident and, upon
request, the driver shall exhibit his driver’s license to
the person who is injured. Furthermore, the law requires
that the driver shall render reasonable assistance to any
person injured in the accident. Now, that comes straight
from the statute. Now, that’s 291C-14(a).
291C-14(b) speaks to those situations where it is not
possible for the driver to immediately do these things,
specifically where the person -- let me rephrase. Where the
injured person is not in a condition to receive
the information required under subsection (a) and no police
officer is present, then the law requires this. The driver
shall forthwith report the accident to the nearest police
officer. “Forthwith” is a term with which this Court and
attorneys are familiar. Perhaps not to the lay person. But
“forthwith” means immediately, without haste, as soon as
possible. “Shall” is a command. It is not a suggestion.
It is not something open to interpretation. It is a
language really of commanding or directing action. A person
shall -- let me rephrase. The driver shall forthwith report
the incident to the nearest police officer and thereupon
disclose the required information as set forth in subsection
(a). Those are the requirements of the law.
(Emphases added.) Respondent then stated, “So as to Element No.
5, did the defendant . . . fulfill the requirements of the law in
this case? The answer is a resounding no.” Thus, Respondent
took the position at trial that the requirements set forth in HRS
§ 291C-14 were elements of the HRS § 291C-12 offense, which
21
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Respondent was required to prove beyond a reasonable doubt at
trial.
However, in its Response, Respondent takes a contrary
position, arguing that, where it alleges a defendant failed to
stop at all, Respondent need not prove that Petitioner failed to
comply with HRS § 291C-14. Respondent suggests that whether a
defendant complied with HRS § 291C-14 is relevant only when the
defendant stops at or returns to the scene. But, Respondent is
seemingly estopped from now advancing a theory of HRS § 291C-12
inconsistent with its position at trial that Petitioner had
violated HRS § 291C-12, partially on account of his failure to
fulfill the requirements of HRS § 291C-14. Roxas v. Marcos, 89
Hawai#i 91, 124, 969 P.2d 1209, 1242 (1998) (judicial estoppel
“prevents parties from playing fast and loose with the court or
blowing hot and cold during the course of litigation” (quotation
marks and citation omitted)); see also State v. Anger, 105
Hawai#i 423, 98 P.3d 630 (2004) (holding that the prosecution was
judicially estopped from arguing that Rules of Evidence did not
apply to hearings on the motion to suppress because the
prosecution expressly proceeded below on the basis that hearing
was subject to those rules).
B.
In its Response Respondent also maintains that under
the facts of this case, the requirements of HRS § 291C-14 were
22
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
not essential elements of the HRS § 291C-12 offense. This
position is also inconsistent with Respondent’s position at
trial. As pointed out by Petitioner in its Reply, Respondent
stated in its closing arguments that the requirements of HRS §
291C-14 “constitut[ed] ‘element no. 5’ of the [HRS] § 291C-12
offense[,]” and that Respondent had the burden of proving
“Petitioner did not fulfill” those requirements. Respondent is
now estopped from arguing that the requirements of HRS § 291C-14
are not elements of the offense as well.
C.
In any event, Respondent is incorrect that the
requirements of HRS § 291C-14 are not essential elements of a HRS
§ 291-12 offense. As set forth previously, HRS § 291C-12
provides as follows:
(a) The driver of any vehicle involved in an accident
resulting in serious bodily injury to or death of any person
shall immediately stop the vehicle at the scene of the
accident or as close thereto as possible but shall then
forthwith return to and in every event shall remain at the
scene of the accident until the driver has fulfilled the
requirements of section 291C-14. Every such stop shall be
made without obstructing traffic more than is necessary.
(Emphasis added.) HRS § 291C-12 requires a driver involved in an
accident resulting in serious bodily injury or death to either
“immediately stop” at the scene of the accident or “stop as
close” to the scene of the accident “as possible[,]” but then
“forthwith return to and remain at the scene of the accident
23
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
until the driver has fulfilled the requirements of [HRS] § 291C-
14.”
HRS § 291C-14(a) describes the information and aid a
driver must provide when he or she is involved in an accident
described by HRS § 291C-12.10 Thus, under HRS § 291C-12, a
driver may be criminally liable if he or she did not stop at or
return to the scene of the accident and, consequently, did not
provide the information and aid required to be provided under HRS
§ 291C-14(a). A driver may also be criminally liable under HRS §
291C-12 if the driver did stop at or return to the scene of the
accident, but failed to remain at the scene until he or she
provided all of the information and aid described in HRS § 291C-
14(a).
10
To reiterate, HRS § 291C-14(a) provides as follows:
(a) The driver of any vehicle involved in an accident
resulting in injury to or death of any person or damage to
any vehicle or other property which is driven or attended by
any person shall give the driver’s name, address, and the
registration number of the vehicle the driver is driving,
and shall upon request and if available exhibit the driver's
license or permit to drive to any person injured in the
accident or to the driver or occupant of or person attending
any vehicle or other property damaged in the accident and
shall give such information and upon request exhibit such
license or permit to any police officer at the scene of the
accident or who is investigating the accident and shall
render to any person injured in the accident reasonable
assistance, including the carrying, or the making of
arrangements for the carrying, of the person to a physician,
surgeon, or hospital for medical or surgical treatment if it
is apparent that such treatment is necessary, or if such
carrying is requested by the injured person; provided that
if the vehicle involved in the accident is a bicycle, the
driver of the bicycle need not exhibit a license or permit
to drive.
(Emphasis added.)
24
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
On the other hand, HRS § 291C-14(b) appears to qualify
a driver’s duty to comply with HRS §§ 291C-12 and 291C-14(a) in
certain instances described in HRS § 291C-14(b). HRS § 291C-
14(b) refers to circumstances in which persons involved in the
accident are not in a condition to receive the information
described under subsection (a), and no officer is present. In
such an event, HRS § 291C-14(b) provides that after fulfilling
the requirements of HRS § 291C-12 and HRS § 291C-14(a), among
other statutes, “insofar as possible on the driver’s part to be
performed,” (emphasis added), the driver must “forthwith report
the accident to the nearest police officer and provide the
officer with the information set forth in [HRS §] 291C-14(a).11
HRS § 291C-12, read in conjunction with HRS § 291C-
14(b), would require a driver to stop or return to the scene of
the accident, and provide the required information and aid only
“insofar as possible.” In such circumstances, the driver must
11
As previously set forth, HRS § 291C-14(b) provides in its entirety
as follows:
(b) In the event that none of the persons specified is in
condition to receive the information to which they otherwise
would be entitled under subsection (a), and no police
officer is present, the driver of any vehicle involved in
the accident after fulfilling all other requirements of
section 291C-12, 291C-12.5, or 291C-12.6, and subsection (a)
of this section, insofar as possible on the driver's part to
be performed, shall forthwith report the accident to the
nearest police officer and submit thereto the information
specified in subsection (a).
(Emphasis added.)
25
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
“forthwith report the accident to the nearest police officer and
submit thereto the information specified in subsection (a).”
HRS § 291C-12 does not speak in terms of requiring a
driver to complete the requirements of HRS § 291C-14(a) only.
The language of HRS § 291C-12 would allow compliance therewith by
satisfying the requirements of either HRS § 291C-14(a) or (b).
The prosecution would need to prove beyond a reasonable doubt
that the defendant failed to fulfill the requirements under HRS §
291C-14 (a) or (b), which set forth specific conduct constituting
the offense.12 Plainly then, the requirements in 291C-14 (a) and
(b) were essential elements that needed to be included in the
charge.
Additionally, the mere reference to HRS § 291C-14 in
the indictment was insufficient to allege the specific
requirements set forth under HRS § 291C-14 (a) and (b) that
Petitioner was alleged to have contravened. State v. Elliott is
instructive. 77 Hawai#i 309, 884 P.2d 372 (2012). In Elliott,
the defendant Elliott challenged, among other things, the charge
12
Arguably, HRS § 291C-12 and HRS § 291C-14(b), appear somewhat
contradictory. HRS § 291C-12 requires a driver involved in an accident
resulting in serious bodily injury to or death to either stop or return to the
scene of the accident and remain there until he or she has provided all of the
information and aid required by HRS § 291C-14(a). Under such a construction,
only the requirements of HRS § 291C-14(a) would be possible of application
with respect to the conduct prescribed in HRS § 291C-12. However, the duties
of a driver under the circumstances set forth in HRS § 291C-14(b) qualify the
obligations imposed under HRS § 291C-12 and HRS § 291C-14(a). The potential
confusion created by the relationship between HRS § 291C-12 and the separate
conditions in HRS § 291C-14(a) and (b) underscores the necessity for alleging
HRS § 291C-14(b) was violated by Petitioner.
26
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
of assault on a police officer. He was charged orally as
follows:
On or about the 28th day of June, 1991 in Kona, County and
State of [Hawai#i] [defendant] intentionally, knowingly [or]
recklessly caused bodily injury to Officer Belinda Kahiwa by
biting her thereby committing the offense of assault in the
third degree, assault of police office [sic] violation of
Section 707-712.5 [HRS] as [a]mended.
(Emphasis added.) 77 Hawai#i at 310, 884 P.2d at 373. Elliott
argued that “the State failed to allege that the assault was
against ‘a police officer who was engaged in the performance of
duty.’” Id. at 311, 884 P.2d 374. This court held that, even
under the liberal construction standard, “the statutory
reference” was insufficient “to provide the necessary element
missing from the charges so as to sufficiently state the offenses
charged against Elliott.” Id. (internal quotation marks,
citation, and brackets omitted).
VII.
A.
The defective charge must result in vacation of
Petitioner’s conviction if Petitioner can show that he was
surprised, prejudiced, or hampered in his defense on account of
the defective charge. See Motta, 66 Haw. at 90-91, 657 P.2d at
1019-20 (holding that under the liberal construction standard,
even if the charge may be construed reasonably to charge an
offense, the conviction must be vacated if the defendant
27
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
establishes he or she was surprised, prejudiced, or hampered in
his or her defense on account of the defective charge).
The record in this case establishes that Petitioner was
prejudiced on account of the defective charge, insofar as the
charge failed to allege whether HRS § 291C-14 (a) or (b) was
charged. As discussed, under HRS §§ 291C-12 and 291C-14(b), if
the “persons specified” are not in a condition to receive the
information described in HRS § 291C-14(a) and no officer is
present, the driver must comply with HRS §§ 291C-12 and 291C-
14(a), but only “insofar as possible on the driver’s part to be
performed[.]” Subsequently, the driver must “forthwith report”
the accident and furnish the information to the nearest police
officer. HRS § 291-14(b).
In that context, Petitioner maintains the omission in
the indictment of the subsections of HRS § 291C-14 “prejudiced
[his] ability to defend . . . because HRS § 291C-14 provides an
alternative basis for criminal conduct” “more than what was
actually charged in the indictment.” According to Petitioner, he
was “not aware of the conduct element” in HRS § 291C-14(b) for
the offense of HRS § 291C-12. Therefore, he was unaware that he
could be criminally liable under HRS § 291C-12 even in the event
that he could not stop at or return to the scene of the accident,
if he failed to “forthwith report” the accident to the nearest
police officer. (Quoting HRS § 291C-14(b).) Petitioner
28
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
maintains thus that he was not given notice of being charged with
failing to comply with HRS § 291C-14(b) which would “negate[] his
‘contemporaneous awareness’ and choice-of-evils defenses.”
B.
As indicated, the indictment did not allege whether
Petitioner was being charged with failing to comply with HRS §
291C-14(a) or HRS § 291C-14(b), or both.13 In its opening
statement, Respondent stated that after Petitioner struck Lee,
the vehicle “never stopped and never returned. The driver in
this case never immediately stopped to give his name, address, or
the registration number of his vehicle. He did not provide his
driver’s license or any other identification information.”
(Emphasis added.) Respondent maintained that,
The evidence will further show that [Petitioner] did
not immediately stop after that collision. He did not
provide the information required under the law, namely his
name, address, the registration number of his vehicle, nor
did he provide any other identifying information.
The evidence will show that he left Zippy’s Kahala
parking lot that late evening or early morning and did not
immediately return, or in other words of the statute,
forthwith return to comply with the requirements of the law.
(Emphases added.) Absent from Respondent’s indictment and the
opening statement was any reference to Petitioner having failed
to “forthwith report the accident to the nearest police officer
13
In light of the omission, Petitioner was uninformed as to the
nature and cause of the accusation against him, as required by Haw. Const. Art
I § 14. Article I, section 14 of the Hawai#i Constitution provides in
relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be informed of the nature and cause of the accusation[.]”
29
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
and submit thereto the information specified in [HRS §] 291C-
14(a)[,]” as required in HRS § 291C-14(b). Thus, it is apparent
from Respondent’s opening statement that Respondent was
proceeding under the theory that Petitioner had violated HRS §
291C-12 and failed to comply with HRS § 291C-14(a).
At the close of the prosecution’s case-in-chief,
Petitioner moved for a judgment of acquittal. First, defense
counsel argued that HRS § 291C-12 required Respondent “to prove
that [Petitioner was] aware of the accident at the time it
occurred.” According to the defense, Respondent’s case
established reasonable doubt as to whether Petitioner knew at
Zippy’s that he had struck Lee. Defense counsel also argued that
Respondent’s evidence established his choice-of-evils defense.
The court then inquired, “So he had no obligation to go
to a place of safety, safe haven, whatever it is, and call the
police?” Apparently believing Petitioner had been charged with
violating HRS § 291C-12 for failing to fulfill the requirements
of HRS § 291C-14(a), as Respondent had suggested, defense counsel
urged that the statute “did not envision the circumstances [in
this case].” Further establishing Petitioner’s understanding
that Respondent had charged him with failing to comply with HRS §
291C-14(a), defense counsel argued, that “[t]he statute doesn’t
address” whether Petitioner should have contacted the police when
he did in fact learn he had been involved in an accident,
30
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
stating, “if upon learning that he was involved in an accident,
should he have contacted the police? The statute doesn’t address
that. But morally we feel like it would be morally correct to do
so.”
In rebuttal, Respondent responded to Petitioner
stating, “The requirements of the law are found in 291C-14” which
recognizes that when “the person injured in the accident is not
in condition to receive the information, the driver nonetheless
had an affirmative duty to . . . forthwith report the accident to
the nearest police officer and submit thereto the information
specified in the sub-section[,]” and “[t]hat did not happen in
this case.” However, Respondent had not alleged in the
indictment the requirements under HRS § 291C-14(b) that
Petitioner was said to have violated. Absent an allegation that
Petitioner had failed to comply with HRS § 291C-14(b), Petitioner
was not provided notice of the requirement that, although unable
to stop at or return to the scene of the accident, he must
“forthwith report” the accident to the nearest police officer
under HRS § 291C-14(b).
Seemingly, from the foregoing, up until Respondent’s
rebuttal of Petitioner’s arguments for judgment of acquittal,
Petitioner believed he had been charged with violating HRS §
291C-12 and HRS § 291C-14(a). Only after Petitioner argued that
the charged offense did not cover situations in which a defendant
31
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
fails to report the accident to the police did Respondent contend
Petitioner could also be found criminally liable under HRS §
291C-14(b). Such notification does not cure the prejudice to
Petitioner. Cf. State v. Valeros, 126 Hawai#i 370, 380, 271 P.3d
665, 675 (2012) (stating that the defense’s “opportunity to
interview” the prosecution’s witness, an individual whom the
defendant had intended to call as an alibi witness, “during the
middle of trial” “did not cure the prejudice to Defendant”). In
this regard Petitioner was hampered in his defense.
Subsequently, Petitioner seemingly attempted to shift
the focus of his defense a bit. But, even during closing
arguments, defense counsel argued that Petitioner had been
charged with failing to return to the scene, indicating that it
was the defense’s belief the charge focused on HRS § 291C-12 and
HRS § 291C-14(a):
Under HRS § 291C-14, when someone is injured, it’s pretty
clear that if you read the statute as being applicable in
this case, you would have to find, as [Respondent] has
suggested, that the person has to be aware . . . that he
injured that individual or caused the death of that person
right then and there.
(Emphases added.) At that point, the court referred defense
counsel to HRS § 291C-14(b):
What is the second portion here? I’ve been trying to cross-
reference these. 291C-14 and 12 that says, [i]n the event
none of the persons specified is in the condition to receive
the information in which they otherwise would be entitled,
and no police officer is present, the driver of any vehicle
in the accident, insofar as possible on the driver’s part to
be performed, shall forthwith report the accident to the
nearest police officer, etc.
32
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
The court stated that it understood Petitioner’s position as
interpreting HRS § 291C-12 to require a driver to report the
accident “right there at the scene[.]” Defense counsel affirmed
that that was Petitioner’s position, “as [Respondent]
suggest[ed].”
It would appear that because the subsection of HRS §
291C-14 with which Petitioner was being charged was not
specified, Petitioner was not made aware that even if his failure
to stop was defensible, the law imposed the additional
requirement that he “forthwith report the accident[,]” pursuant
to HRS § 291C-14(b). Because Respondent advanced the theory that
Petitioner was charged with failing to comply with HRS § 291C-
14(b) during the middle of trial, Petitioner was hampered in
presenting his defense. In sum, Petitioner appears to have been
prejudiced by the omission in the indictment of the requirements
of HRS § 291C-14 he allegedly violated.
VIII.
In connection with the second question, Petitioner
argues that (1) the court’s examination of Lance was improper
because (a) it “did not simply ‘clarify’ any areas in the
prosecution’s or the defense’s line of questioning,” and (b) the
questioning exhibited bias in favor of the prosecution and
against the defense; (2) although Petitioner did not object to
the court’s questioning, the error constituted plain error
33
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
because it violated Petitioner’s right to an impartial judge; and
(3) assuming the court’s questioning did not rise to the level of
plain error, Petitioner was deprived of his constitutional right
to effective assistance of counsel where defense counsel failed
to object to the court’s questioning. We discuss these issues in
light of the probability of retrial in this case.
A.
This court has said that although a trial court may
within its discretion ask questions of the witnesses, “the trial
judge should not cross-examine a [witness] so extensively as to
give rise to jury bias.” State v. Hutch, 75 Haw. 307, 326, 861
P.2d 11, 21 (1993) (quotation marks and citation omitted). “When
the court assumes the role of a prosecutor, it violates the
fundamental due process requirement that the tribunal be
impartial[.]” State v. Silva, 78 Hawai#i 115, 121, 890 P.2d 702,
708 (App. 1995). However, a trial “judge is accorded
considerably greater discretion in the questioning of witnesses
in jury waived trials” because “[i]n such cases, it is the judge
who is the trier of fact” and “there is no possibility of jury
bias[.]” Hutch, 75 Haw. at 326, 861 P.2d at 21 (quotation marks
and citation omitted). Hence, in bench trials such as in this
case, “the judge’s duty to clarify testimony and fully develop
the truth in the case becomes particularly heightened.” Id.(quotation marks and citation omitted) (emphases added). In this
34
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
case, the court’s questioning of Lance seemingly “clarified”14
and “developed”15 the evidence.
First, as recounted, Petitioner contends the court’s
questioning did not merely clarify other testimony inasmuch as
there was no testimony “regarding [] Khamlong’s personal
friendship with [Lee].” Petitioner testified on direct
examination that Khamlong was at Shell when Petitioner arrived
immediately after the incident at Zippy’s. He explained that
Khamlong and others were standing near his vehicle. Petitioner
admitted that he “heard that maybe somebody had been run over?”
Petitioner related, however, that he did not believe that he had
struck anyone, in part, because “it was coming from the other
side[.]” Petitioner’s defense counsel then clarified,
“[Khamlong] as being with the other side?” Petitioner answered,
“Yes.”
The court’s questioning regarding whether Khamlong “was
friends with Lee” clarified what Petitioner’s testimony
suggested, i.e., that Khamlong was affiliated with Lee or at
least one of Lee’s friends. Hence, there was testimony
suggesting that Khamlong and Lee were friends. The court’s
14
“Clarify” is defined, inter alia, as to make “clear” or “free of
confusion”; “to make understandable.” Merriam Webster’s Collegiate Dictionary
at 211.
15
“Develop” is defined, inter alia, as “to make clear . . . in more
detail.” Merriam Webster’s Collegiate Dictionary at 316.
35
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
questioning made “clear” and “free of confusion[,]” Merriam
Webster’s Collegiate Dictionary at 211, whether Petitioner had
meant that he did not believe someone had been run over because
Khamlong had said it, and Khamlong was a friend of Lee.
Petitioner also contends that the court’s inquiry of
whether Petitioner first learned at Shell of someone being
injured was not a clarification of any testimony. However, as
recounted, at that point, Perreira had already testified that at
Shell, Khamlong said something about “somebody being run over” by
a Murano. Petitioner also stated that he heard that someone had
been run over, and suggested that this statement had originated
with Khamlong.
On direct examination, Petitioner’s defense counsel
asked Lance, “As far as – you know today somebody was run over;
is that correct?” Lance was asked whether he knew “anyone was
run over” “at that time[,]” Lance explained, “[P]eople [were]
telling us that somebody was run over.” Defense counsel then
attempted to clarify, “When you say people telling you, that’s
over the telephone?” Lance explained, “No, no. It was one of
the guys at Shell gas station.”
The court’s question, “At what point did you think
maybe that somebody had been run over” made more understandable
the “time” that Lance became aware of this, in light of defense
counsel’s inquiry of whether Lance knew anyone had been run over
36
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
“at that time.” Additionally, the court’s question regarding
whether it was Khamlong who “made [Lance] think that” clarified
who Lance was referring to when Lance said he learned that
someone had been run over by “one of the guys at Shell gas
station[.]” Further, the court’s question as to whether Khamlong
had said this in front of Petitioner, revealed the details
regarding “at [what] time” Lance learned of this information, as
asked by defense counsel, i.e., whether it was said at Shell
while Petitioner was still present. In sum, Petitioner is
incorrect that the court’s questioning of Lance did not clarify
or develop other testimony.
Finally, Petitioner challenges the court’s questions
regarding, “Khamlong’s anger toward Petitioner upon hearing that
it was Petitioner’s vehicle that ran over [Lee], and Khamlong’s
actions of wanting to hit Petitioner as a result.” It does not
seem that Khamlong’s anger toward Petitioner was brought out in
any of the other testimony. However, it does not appear the
court expressly considered this testimony in adjudging Petitioner
guilty.
B.
Petitioner also asserts the court’s ruling indicates
the court relied on Lance’s testimony in rendering its decision
in this case. As noted, the court concluded Petitioner was
guilty of the charged offense because he “knew and was quite
37
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
aware of what he did[.]” The court explained that although
Petitioner might “now sincerely believe that he didn’t see or
know [] Lee was struck by his Murano[,]” the “facts show
otherwise beyond a reasonable doubt that he is guilty.” Thus the
court held that, “[o]nce Petitioner reached [] Shell -- if not
before, he should have -- should have and did not call 911 and
follow what the statute required.” The court noted that
Petitioner “did not report this for some time after he was able
to do so without harm to himself or to his car.”
The court did not expressly reference Lance’s
testimony. It may be argued that the court found that Petitioner
knew prior to reaching Shell that he struck Lee; otherwise the
court could not have concluded Petitioner should report the
accident to the police “[o]nce Petitioner reached [] Shell if not
before.” In any event, although it cannot be ascertained
definitively whether the court considered Lance’s testimony, the
court would be acting within its discretion to do so inasmuch as
the court’s questioning of Lance only clarified and developed the
testimony. Although Petitioner maintains the court exhibited
bias in favor of Respondent and against Petitioner, it cannot be
concluded on this record that the court was biased. Consequently,
the court did not plainly err in questioning Lance. Because the
court did not err in questioning Lance, private defense counsel
38
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
cannot be said to have been ineffective for failing to object to
the court’s questioning.
IX.
In light of the foregoing, the April 5, 2012 judgment
of the ICA, which affirmed the court’s November 30, 2010 Judgment
of Conviction and Probation Sentence, and the court’s aforesaid
judgment are vacated and the case is remanded to the court for
proceedings consistent with this opinion.
Summer M.M. Kupau, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent,
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard K. Perkins
39