Slavick v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-OCT-2020
07:48 AM
Dkt. 211 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CHRIS SLAVICK, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(SPP. NO. 16-1-0004; CR. NO. 04-1-1534)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)
Petitioner-Appellant Chris Slavick (Slavick) appeals
pro se from the October 10, 2019 Order Denying Petition to
Vacate, Set Aside, or Correct Judgment or to Release Petitioner
From Custody (Order Denying Petition) entered by the Circuit
Court of the First Circuit (Circuit Court).1
In his Opening Brief, Slavick raises various "Issues on
Appeal," but fails to identify points of error and otherwise
fails to comply with Hawai#i Rules of Appellate Procedure (HRAP)
1
The Honorable Karen T. Nakasone presided.
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Rule 28(b)(4). Nevertheless, in light of Slavick's pro se status
and in the interest of justice, we address the discernible issues
raised in this appeal.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Slavick's contentions as follows:
1. Minimum Term of Imprisonment
Slavick argues that the Hawai#i Paroling Authority
(HPA) erred in setting his minimum term of imprisonment.
However, Slavick's arguments on this point are moot without
exception because his minimum term expired on April 10, 2019.
See In re Carl Corp. v. State, Dep't of Educ., 93 Hawai#i 155,
164, 997 P.2d 567, 576 (2000). See also Right to Know Comm. v.
City Council, 117 Hawai#i 1, 8, 175 P.3d 111, 118 (App. 2007);
Hopkins v. State, CAAP-XX-XXXXXXX, 2013 WL 4522598, *1 (Haw. App.
Aug. 23, 2013) (SDO); Fukumoto v. State, CAAP-XX-XXXXXXX, 2012 WL
5897411, *1 (Haw. App. Nov. 21, 2012) (SDO).
2. Judicial Bias – Judge Nakasone
Slavick argues that Judge Nakasone, who denied
Slavick's February 18, 2016 Petition to Vacate, Set Aside, or
Correct Judgment or to Release Petitioner From Custody, and June
21, 2017 Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner From Custody (Petition), "confessed to her
being conflicted and partial due to her involvement, at least, in
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Civil cases 1CC151001557 and 1CC151001683" and "since both of the
latter Civil cases preceded CR 13-1-1461 and SPP 16-1-0004
regarding the assignment/involvement of [J]udge Nakasone with her
then conceding her disqualification in CR 13-1-1461, likewise,
[J]udge Nakasone is also disqualified from SPP 16-1-00004 and her
denial of my Petition is null and void."
Slavick does not state where in the record Judge
Nakasone indicated she had a conflict of interest or that Slavick
moved Judge Nakasone to recuse herself, and we find no evidence
of such in the record. See HRAP Rule 28(b)(4)(ii) and (iii).
Moreover, a judge's involvement in prior cases involving the same
defendant does not necessarily create a conflict of interest.
Therefore, Slavick has failed to demonstrate clearly and
precisely that Judge Nakasone was prejudiced against him. See
State v. Birano, 109 Hawai#i 314, 323, 126 P.3d 357, 366 (2006).
3. Ineffective Assistance of Counsel
Slavick argues that Earl Partington (Partington), who
represented Slavick on direct appeal, provided Slavick with
ineffective assistance for refusing "to cite meritorious appeal
issues that [Slavick] raised to him."2 Slavick argues, among
2
Slavick argues:
Partington failed to cite that [Respondent-Appellee
State of Hawai#i (State)] never carried any burden for
the mistrial and the prosecution utilized the trial as
a preview of the defense. [Partington] failed to
raise the significant and obvious issue of the
prosecution using a new expert witness, an alternate
theory, and new evidence of an interview audio
(continued...)
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other things, that Richard Gronna (Gronna), Slavick's stand-by
counsel at retrial, failed to timely file a Motion for New
Trial/Rule 33 and Motion for Acquittal/Rule 29(c), refused to
communicate with Slavick so that Slavick could prepare for
retrial, refused to assist Slavick zealously and at crucial times
during retrial,3 and improperly apprised the prosecution about
Slavick's evidence and trial strategy.
Based on the record before this court, it is unclear
whether counsels' actions reflected "specific errors or omissions
reflecting [a] lack of skill, judgment, or diligence." State v.
Aplaca, 74 Haw. 54, 67, 837 P.2d 1298, 1305 (1992); see Loher v.
State, 118 Hawai#i 522, 534, 193 P.3d 438, 450 (App. 2008),
overruled on other grounds in State v. Auld, 136 Hawai#i 244, 361
P.3d 471 (2015) ("[I]n the absence of a sufficient record on this
2
(...continued)
recording that they chose not to use at trial, yet
they then used at retrial in order to enhance their
ability to convict -- such tactics are flagrant
violations of the Double Jeopardy Clause and are
strictly forbidden. . . . . Further evidence of
ineffectiveness was [Partington's] failure to cite
prosecutor misconduct when DPA Yamane falsely claimed
to the jury that she was quoting Slavick to have said
"Yeah, I read them" as she referenced the medication
label in this instant case[.] . . . . [Partington]
even committed FRAUD in his Opening Brief[.] . . . .
[H]e also failed to appeal the failure by [retrial
stand-by counsel, Richard Gronna] to timely file the
Motion for New Trial/Rule 33 and Motion for
Acquittal/Rule 29(c)[.] . . . . Partington attempted
to prejudicially harm Slavick's appeal case.
3
Slavick's first trial resulted in a mistrial, and he was
subsequently retried and convicted of Promoting a Harmful Drug in the First
Degree, in violation of Hawaii Revised Statutes § 712-1244(1)(a), for
possessing ten or more capsules, tablets, or doses, of methandrostenolene
(methandienone), a steroid. Judge Karen S.S. Ahn ( Judge Ahn) presided over
the retrial.
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appeal, including an opportunity for Loher's former appellate
counsel to be heard, we must remand for the development of such a
record on the issue of whether Loher had ineffective assistance
of appellate counsel."). We conclude that the Circuit Court
erred by denying the Petition without holding a hearing on these
issues.
Slavick waived his remaining arguments because he
failed to raise them on direct appeal and does not present
extraordinary circumstances justifying his failure to raise them.
See Hawai#i Rules of Penal Procedure (HRPP) Rule 40(a)(3). See
also, e.g., Stanley v. State, 76 Hawai#i 446, 451, 879 P.2d 551,
556 (1994); Loher, 118 Hawai#i at 531, 193 P.3d at 447. In any
case, as discussed below, it appears that Slavick's further
arguments lack merit.
4. Prosecutorial Misconduct
a. Slavick's Cross-Examination
Slavick argues that counsel for the State committed
prosecutorial misconduct by continuously objecting during
Slavick's cross-examination of pharmacist Kevin Ho (Ho), and that
the State and Circuit Court committed misconduct by obstructing
Slavick's opening statement and his cross-examination of U.S.
Border and Customs agent Gail Fukunaga (Fukunaga). However,
during Slavick's opening statement, the State objected numerous
times on the basis that Slavick was presenting arguments, and the
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Circuit Court sustained most of the objections. Slavick did not
claim that the prosecutor or court were committing misconduct.
Further, during Slavick's cross-examination of
Fukunaga, counsel for the State articulated bases for all but
four of her objections, and Slavick did not complain that counsel
was committing prosecutorial misconduct. During Slavick's cross-
examination of Ho, the State's counsel articulated a basis for
all but one of her objections, and, again, Slavick did not
object. See State v. Vliet, 91 Hawai#i 288, 299, 983 P.2d 189,
200 (1999) ("A complete failure to object will waive the
point[.]").
b. State's Closing Argument
Slavick appears to argue that the Circuit Court
erroneously rejected his claim that the prosecution misquoted him
to the jury (as saying "Yeah, I read them"), in reference to the
labels on the pharmacy bottles, and played an interview recording
to "coincide" with her misstatement to falsely prove Slavick
possessed the requisite "knowing" state of mind. However, during
closing argument, a prosecutor is "permitted to draw reasonable
inferences from the evidence and wide latitude is allowed in
discussing the evidence." State v. Klinge, 92 Hawai#i 577, 592,
994 P.2d 509, 524 (2000) (citation and internal quotation marks
omitted). Further, there was evidence that Slavick read the
labels, and "it is . . . within the bounds of legitimate argument
for prosecutors to state, discuss, and comment on the evidence as
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well as to draw all reasonable inferences from the evidence."
Id. (citation and internal quotation marks omitted).
5. Jury Instructions on Mistake of Fact and Mistake
of Law
Slavick argues the trial court erroneously instructed
the jury on mistake of fact and mistake of law, which Slavick did
not request and which was inconsistent with his defense.
However, at retrial, no party objected to jury instruction No. 34
(Mistake of Fact) being given, and the State, not Slavick,
objected to the jury instruction No. 35 (Mistake of Law).
Slavick did not object when the Circuit Court gave the jury the
instructions. See Vliet, 91 Hawai#i at 298-99, 983 P.2d at 199-
200. Slavick does not contend that the instructions were a wrong
statement of the law. We conclude that Slavick's argument is
without merit.
6. Transcripts
Slavick argues that the Circuit Court erred and
violated his rights to due process and confrontation when it
failed "to provide and . . . assure that first trial transcripts
[were] provided to [Slavick] in order for him to have any
meaningful opportunity to prepare" for his retrial. Slavick
fails to meet his burden to cite to where in the record that he
requested the transcripts or informed the Circuit Court that he
did not receive them. See HRAP Rule 28(b)(4)(ii) and (iii);
State v. Adler, 108 Hawai#i 169, 178, 118 P.3d 642, 661 (2005).
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Regardless, the record does not support Slavick's claim that he
was deprived of the trial transcripts prior to retrial.
Further, at retrial, Slavick did not claim that he had
not been provided with the first trial transcripts or that he had
inadequate time to review the transcripts, and Slavick used
several transcripts during cross-examination of the State's
witnesses. This argument is without merit.
7. Interview CD
Slavick argues that the Circuit Court broke its promise
to allow him to utilize the court's audio equipment the week of
February 4, 2013, so he could listen to a CD of an October 28,
2003 interview of him, since he lacked the means to do so in
prison, and he was unable to hear the recording until the day
before or of trial. Slavick does not show where in the record
the Circuit Court made such a promise. See HRAP Rule
28(b)(4)(ii). The record shows that Slavick was provided with an
opportunity to listen to the CD of the interview one day prior to
the retrial and he did not object or request a trial continuance
on the ground that he had an inadequate amount of time to review
the CD. See Vliet, 91 Hawai#i at 298-99, 983 P.2d at 199-200.
The Circuit Court did not err in rejecting this argument.
8. Discovery Violation
Slavick appears to argue that during discovery, the
prosecution provided him with a transcript of an October 28, 2003
interview with him, in which the words "sell them over here" had
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been falsely attributed to Slavick to prove he possessed the
requisite intent. However, a transcript of the interview was not
offered or received into evidence and, therefore, any error was
harmless.
9. Judicial Bias – Judge Ahn
Slavick argues that prior to retrial, on October 17,
2012, Circuit Court Judge Ahn exhibited bias against him when she
said, "'if you were a person that I felt: A, would not
reoffend:' as she distinctly refers to the charge of 'promoting a
harmful drug' with her specific alphabetical separation."
However, the record makes clear that the remark pertained to the
grounds for denying Slavick's request to reduce bail and was not
a pronouncement regarding his guilt. Slavick has not shown "a
clear and precise demonstration of prejudice." Birano, 109
Hawai#i at 323, 126 P.3d at 366 (block quotation format and
citation omitted). Therefore, this argument is without merit.
10. Perjury by State's Witnesses
Slavick argues that the State's witnesses perjured
themselves at retrial. However, Slavick did not raise these
issues in the Petition and fails to demonstrate grounds for their
review on this appeal. Accordingly, we decline to address these
issues.
For these reasons, this case is remanded to the Circuit
Court for a hearing pursuant to Hawai#i Rules of Penal Procedure
Rule 40 on Slavick's claims of ineffective assistance of counsel,
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and in all other respects, the Circuit Court's October 10, 2019
Order Denying Petition is affirmed.
DATED: Honolulu, Hawai#i, October 16, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Chris Slavick, Chief Judge
Petitioner-Appellant.
/s/ Katherine G. Leonard
Sonja P. McCullen, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Derrick H.M. Chan
for Respondent-Appellee. Associate Judge
Diane K. Taira,
Lisa M. Itomura,
Deputy Attorneys General,
for Respondent-Appellee.
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