NOT FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER
NO. 293l3
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IN THE INTERMEDIATE COURT OF APPEALS §§
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oF THE STATE cF HAWAI‘I §§
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g _ _ as
STATE OF HAWAI I, Plaintiff-Appellee, v. §§
STEVEN M. ADACHI, Defendant-Appellant §§
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APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(HPD Criminal NO. O7509734 (lPlO8~OO254))
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Fujise and Leonard, JJ.)
Defendant-Appellant Steven M. Adachi (Adachi) appeals
2008 in the District Court of
After a
from the Judgment filed on July l5,
the First Circuit, Honolulu Divisionl (district court).
bench trial, the district court convicted Adachi of Harassment
under Hawaii Revised Statutes (HRS) § 7ll-llO6(l)(a) (Supp.
2OO8)2 and sentenced him to six months of probation and fifty
hours of community service and ordered Adachi to pay various
fines and fees.
On appeal, Adachi argues that the district court erred
and violated his constitutional rights to a fair trial and to
present a defense when the court denied his Motion for New Trial
(l) the State of HawaFi (State) committed prosecutorial
(HRPP)
where
misconduct and violated Hawafi Rules of Penal Procedure
Rule l2.l(b)3 by failing to inform Adachi in writing of the
1 The Honorable Lono J. Lee presided.
2 HRS § 711-llO6(l)(a) provides that "[a] person commits the offense of
harassment if, with intent to harass, annoy, or alarm any other person, that
person: (a) Strikes, shoves, kicks, or otherwise touches another person in an
offensive manner or subjects the other person to offensive physical contact."
3 HRPP Rule l2.l(b) provides
Rule l2.l. Notice of alibi.
(b) Disclosure of information and witnesses. Upon receipt
of notice that the defendant intends to rely upon an alibi
defense, the prosecutor shall inform the defendant in writing of
the specific time, date, and place at which the offense is alleged
to have been committed. The defendant shall then inform the
(continued...)
FY
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specific date, time, and place of the alleged offense in response
to his Notice of Alibi; (2) the court erroneously refused to
allow Seung Sep Kim (Kim) to testify that he had not seen the
Complaining Witness (CW) at the apartment he shared with the CW
and Adachi (the apartment) at l0:30 p.m. on December 22, 2007
(the 22nd), the date of the alleged incident; and (3) the court
erroneously refused to allow Adachi to present newly discovered
evidence, i.e., the testimony of Dr. Wailua Brandman
(Dr. Brandman), the CW's doctor, that on December 2l, 2007 he
observed on CW the same injuries she alleged Adachi had inflicted
on her on the 22nd. In the alternative, Adachi maintains the
district court deprived him of effective assistance of counsel
where his counsel, upon learning of the State's violation of HRPP
Rule l2.l(b), failed to inform the court of the misconduct and
move for dismissal, a mistrial, or a trial continuance. He
requests that we vacate his conviction and remand this case for a
new trial or, in the alternative, remand this case for further
proceedings on the Motion for New Trial.
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, as
well as the relevant statutory and case law, we resolve Adachi's
points of error as follows:
The district court did not abuse its discretion or
deprive Adachi of his constitutional rights in denying the Motion
for New Trial. Although the State failed to respond to Adachi's
Notice of Alibi pursuant to HRPP Rule l2.l(b), the district court
did not plainly err by denying the Motion for New Trial on that
basis. Adachi untimely filed his Notice of Alibi. HRPP Rules
l2.l(a) ("the defendant shall, within the time provided for the
3(...continued)
prosecutor in writing of the specific place at which the defendant
claims to have been at the time of the alleged offense and the
names and addresses of the witnesses upon whom the defendant
intends to rely to establish such alibi, The prosecutor shall
then inform the defendant in writing of the names and addresses of
the witnesses upon whom the government intends to rely to
establish defendant's presence at the scene of the alleged
offense.
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filing of pretrial motions or at such later time as the court may
direct, notify the prosecutor") and l2(c) ("Pretrial motions and
requests must be made within 21 days after arraignment unless the
court otherwise directs."). Adachi also failed to bring the
State’s failure to respond to the circuit court's attention and
to ask for a continuance. See State v. Sherman, 70 Haw. 334,
34l, 770 P.2d 789, 793 (l989) (trial court should have granted
reasonable continuance for defendant to conduct discovery once
date of offense was made apparent).
The district court did not abuse its discretion in
denying Adachi's request to reopen the case and admit into
evidence Kim's proffered testimony. There was no reasonable
possibility that the district court's refusal to allow Adachi to
recall Kim to the stand might have contributed to Adachi's
conviction. Whether Kim saw the CW at the apartment at the time
the incident allegedly occurred was not likely to influence the
district court's verdict, where Kim had already testified that he
did not see the CW at the scene at the time of the incident, the
court found the CW credible and gave weight to State's EXhibits l
and 2 depicting the CW’s injuries caused by the incident, and the
court found Adachi's testimony to be "vague and evasive." State
V. Paulin€, lOO HaWafi 356, 378, 60 P,3d 306, 328 (2002).
The district court did abuse its discretion in denying
Adachi's request to recall Kim to testify on the second day of
trial. On the first day of trial, Kim testified on direct
examination and cross~eXamination, and Adachi declined the
opportunity to question him on redirect examination. Adachi does
not explain what Kim would have testified to with regard to the
CW‘s injuries or how Adachi was prejudiced by the district
court's denial of his request to recall Kim.
The district court did not abuse its discretion by
denying Adachi‘s request to reopen the case and admit into
evidence Dr. Brandman's proffered testimony. Adachi could have
discovered this evidence before trial and prepared accordingly.
See State v. Faulkner, l Haw. App. 65l, 656~57, 624 P.2d 940,
944-45 (l98l).
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The record here is insufficiently developed to
determine whether the facts alleged by Adachi, if proven, would
entitle him to relief on his ineffective assistance of counsel
claim. State v. Silva, 75 Haw. 4l9, 439, 864 P.2d 583, 592-93
(l993). A motion for post-conviction relief under HRPP Rule 40
is the proper method of addressing that claim. State v. Libero,
103 Hawafi 490, 507, 83 P.3d 753, 770 (App. 2003), abrogated on
other grounds by State v. Frisbee, 114 HawaiH.76, 83, 156 P.3d
ll82, 1189 (2007).
Therefore,
IT 18 HEREBY ORDERED that the Judgment filed on
July l5, 2008 in the District Court of the First Circuit,
Honolulu Division, is affirmed without prejudice to Adachi's
filing an HRPP Rule 40 petition on his ineffective assistance of
counsel claim.
DATED; Honoluiu, Hawai‘i, April 27, 2010.
On the briefs:
Joyce K. Matsumori-Hoshijo
for Defendant-Appellant.
Anne K. Clarkin,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.
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Associate Judg