N()'I` I*`()I{ PLIBI,JICA'I`I()N IN WEST'S HAWAI‘I REP()RTS AND PACIFIC REPORTER
NO. 29307
§§
lN THE INTERMEDlATE COURT OF APPEALS §§
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oF THE STATE oF HAWA:‘: =v -»,»,
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STATE OF HAwAl I, Plaintifr-Appellee, v. ;g §
CHRISTOPHER GRINDLING, Defendant-Appellan€K ¢» w
33 ¢¢
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APPEAL FROM THE CIRCUlT COURT OF THE SECOND CIRCUlT
(CR. NO. 07-l~O533(2))
SUMMARY DlSPOSITION ORDER
(By: Foley, Presiding J., Fujise and Leonard, JJ.)
(Grindling)
Defendant-Appellant Christopher Grindling
Conviction and Sentence filed on
appeals from the Judgment,
2008 in the Circuit Court of the Second Circuit
November 6,
(circuit court).1 After a jury trial, the circuit court
convicted Grindling of Promoting a Dangerous Drug in the Third
in violation of Hawaii Revised Statutes (HRS) § 712-
and Prohibited Acts Related to
Degree,
2009)2 (Count One)
(l993)
l243(l) (Supp.
Drug Paraphernalia, in violation of HRS § 329-43.5(a)
The circuit court sentenced Grindling to five years
(Count Two).
the terms to run consecutively.
of imprisonment for each count,
On appeal, Grindling contends:
(l) The circuit court erred by granting the
November 2, 2007 Motion for Mental Examination filed by the State
of HaWaiU_(State).
4 (2) The circuit court erred and improperly denied him
his constitutional rights to counsel and to self-representation
when the court denied his motions for substitute counsel.
With regard to the court's discharge of
(a>
Cary virtue (Virtue),
Grindling‘s second court-appointed counsel,
the circuit court erroneously
The Honorable Shackley F. Raffetto presided.
l
The Felony lnformation misstates the HRS provision as "HRS § 2-
n
l243(l).
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(i) refused to consider the conflict between
Grindling and Virtue, when Grindling first raised the issue on
November 8, 2007 and on numerous subsequent occasions;
(ii) found that Grindling had elected to
represent himself based on his conduct, even though he clearly
stated numerous times that he did not wish to do so; and
(iii) allowed Grindling to waive his right to
counsel, even though the waiver was equivocal at best.
(b) with regard to the court‘s discharge of
Grindling's third court-appointed counsel, Steven B. Songstad
(Songstad), the court failed to clearly advise Grindling before
he waived his right to counsel of the dangers of self-
representation, his right to counsel, and his right to waive his
right to counsel.
(3) The circuit court abused its discretion by denying
his February 7, 2008 Motion to Quash (Motion to Quash);
February l2, 2008 Motion to Suppress (2/12/08 Motion to
Suppress); March 24, 2008 Motion to Compel/Motion to Suppress
(referred to separately as 3/24/08 Motion to Compel and 3/24/08
Motion to Suppress); and March 24, 2008 Supplement to 3/24/08
Motion to Suppress (Supplement to 3/24/08 Motion to Suppress).
The 2/12/08 Motion to Suppress, 3/24/08 Motion to Suppress, and
Supplement to 3/24/08 Motion to Suppress will be referred to
collectively as Motions to Suppress.
(4) The circuit court erred in failing to compel the
State to reveal the identity of its confidential informant (CI)
because "[p]rior to ruling on privilege[,] court must at the
minimum receive an affidavit avering [sic] [CI] wasn't present at
the raid."
(5) The circuit court abused its discretion by denying
his February 2l, 2008 Motion to Compel (2/21/08 Motion to
Compel), 3/24/08 Motion to Compel, and a second Motion to Compel
filed on March 24, 3008 (Second 3/24/08 Motion to Compel)
(collectively, Motions to Compel).
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(6) The circuit court erred by not finding that the
State lost or destroyed Grindling's cell phone records.
{7) The circuit court erred by failing to obtain on
the record his waiver of his right to testify.
(8) The circuit court abused its discretion by denying
his oral motion for mistrial without first inquiring into his
allegation that the jury had been exposed to extrinsic evidence.
(9) The circuit court erred by denying his oral Motion
for Judgment of Acquittal (JOA Motion) because there was
insufficient evidence of constructive possession.
(l0) The circuit court plainly and manifestly abused
its discretion by denying him a term of probation and, instead,
imposing upon him consecutive sentences of imprisonment.
(ll) The circuit court erred by denying his November 6,
2008 Amended Petition for D.N.A. Test (Petition for DNA Test), in
which Grindling sought post-conviction DNA testing of the glass
pipe recovered from the bedroom floor.
(l2) The State committed several errors which amounted
to prosecutorial misconduct.
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
Grindling's points of error as follows:
(1) Based on the letters attached to the State's
Motion for Mental Examination, which reveal Grindling's belief
that 0fficer Esperanza, the circuit court, and the circuit court
clerk were conspiring against him and in which Grindling accused
his attorney of "aiding and abetting" Officer Esperanza in
falsifying his search warrant affidavit, the court did not abuse
its discretion by granting the Motion for Mental Examination.
HRS § 704-404(1) (1993 & Supp. 2007).
(2) The circuit court did not err or deny Grindling
his constitutional rights to counsel and to self-representation.
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(a) with regard to the court's discharge of
Virtue,
(i) the court should have held an
evidentiary hearing to establish Grindling's objections on the
record and to conduct a "penetrating and comprehensive
examination" of Grindling to ascertain the bases for his request
for replacement counsel. State v. Soares, 81 HawaFi 332, 355,
916 P.2d 1233, 1256 (App. 1996). Also, before discharging virtue
and requiring Grindling to proceed to trial without
representation, the court should have advised Grindling that the
court was not required to appoint substitute counsel to represent
Grindling if the court were to discharge Virtue. ld;
(ii) Nevertheless, the errors were harmless
beyond a reasonable doubt because Grindling was without counsel
for only roughly one weeK, about four months before trial began.
Hawai‘i Rules of Penal Procedure (HRPP) Rule 52(a) ("Any error,
defect, irregularity or variance which does not affect
substantial rights shall be disregarded."); Korean Buddhist Dae
won Sa Temple of Hawaii v. Sullivan, 87 Hawaid_217, 245, 953
P.2d 1315, 1343 (1998) ("A constitutional error is harmless as
long as the court is able to declare a belief that it was
harmless beyond a reasonable doubt "). Grindling does not
explain and we fail to see how he was prejudiced by his lack of
representation for that time.
(iii) The court did not find that Grindling
had elected to represent himself based on his conduct.
(iv) Grindling's waiver of his right to
counsel appeared to be equivocal because although he moved to
waive his right to counsel, he really wanted substitute counsel.
(b) with regard to the court's discharge of
Songstad, there was no gap between the time that Songstad
withdrew from representing Grindling and Cynthia A. Kagiwada
(Kagiwada) replaced Songstad. Grindling does not dispute that he
wanted the court to discharge Songstad, and Grindling did not
contest subsequent Kagiwada‘s representation of him. Therefore,
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we fail to see how Grindling could have been prejudiced by any
error on the part of the court when the court replaced Songstad
with Kagiwada, and we hold that any such error was harmless.
HRPP Rule 52(a); Korean Buddhist Dae won Sa Temple of Hawaii, 87
Hawai‘i at 245, 953 P.zd at 1343.
(3) The circuit court did not abuse its discretion by
denying Grindling‘s Motion to Quash and Motions to Suppress.
(a) The court found that Grindling's testimony
lacked credibility and did not prove that Officer Esperanza's
affidavit contained false or misleading information. we decline
to review this credibility determination. §§§ State v.
MattiellO, 90 Hawafi 255, 259, 978 P.2d 693, 697 (l999) ("It is
well-settled that an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of the
evidence; this is the province of the trier of fact.").
(b) under state v. Detroy, 102 Hawai‘i 13, 13~20,
72 P.3d 485, 490-92 (2003), there was no requirement that Officer
Esperan2a provide corroborating evidence for assertions he made
in Paragraph 20 of his affidavit. we find no authority for
Grindling's assertion that the officer was required to provide
such corroboration.
(c) The court did not improperly deprive
Grindling of his right to cross-examine Officer Esperanza
regarding the officer's statement in his affidavit that Grindling
had a prior narcotics arrest and conviction. Franks v. Delaware,
438 U.S. l54, l55-56, 98 S. Ct. 2674, 2676 (l978), which
Grindling cites to in support of this argument, is inapposite
because here, the court found that Grindling did not make a
substantial preliminary showing that Officer Esperanza made a
false statement in his affidavit.
(d) Officer Esperanza's affidavit, attached as EXhibit
A to the State's opposition memorandum to the Motions to
Suppress, was sufficient, even though Officer Esperanza did not
state that he actually observed contraband within the Awakea
house. 1n his affidavit, Officer Esperanza provided some of the
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underlying circumstances from which the CI concluded the
narcotics were where the C1 claimed they were and some of the
underlying circumstances from which Officer Esperanza concluded
the Cl was credible and the C1's information was reliable.
Detroy, 102 Hawafi at 18-l9, 72 P.3d at 490-91 (holding that
when a police officer relies on anonymous tip to establish
probable cause for issuance of search warrant, the officer, in
his search warrant affidavit, must fulfill the two-prong test set
out in §guilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. l509, 1514
(1964)); see also State v. Kanda, 63 HawaiH_36, 42, 620 P.2d
1072, 1076 (1980) (holding that in a search warrant affidavit,
affiant must reveal adequate basis for informer's conclusion
regarding location of objects sought to be recovered and must
demonstrate that affiant's trust in informer's credibility was
warranted).
(4) The circuit court did not err in failing to compel
the State to reveal the identity of its CI. State v. Rodriques,
88 Hawaiu,363, 364, 966 P.2d lO89, lO9O (l998), is
distinguishable because Grindling did not file a motion to compel
the State to reveal the C1's identity, the CI was not present at
the raid, and the State did not plan to call the CI to testify at
trial. lQ; at 367-68, 966 P.2d at lO93-94.
(5) The circuit court did not abuse its discretion by
denying Grindling's Motions to Compel. HRPP Rule 16.
(a) we do not see in the record on appeal where
Grindling moved the court to compel the State to produce Maui
Police Department (MPD) sign-out logs for money to conduct drug
buys, and consider this argument waived. See State v. Moses, 102
Hawai‘i 449, 456, 77 P.Bd 940, 947 (2003) molding that "if a
party does not raise an argument at trial, that argument will be
deemed to have been waived on appeal").
(b) The court did not abuse its discretion by
refusing to compel the State to produce Grindling and Officer
Esperanza‘s respective cell phone location records or Officer
Esperanza's cell phone bill because the court did not find
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credible Grindling's theory that the evidence would prove the
officer had lied when he stated in his affidavit that the drug
buy occurred, and we decline to review that credibility
determination. Mattiello, 90 Hawari at 259, 978 P.2d at 697.
(c) Even if the court erred by not compelling the
State to produce MPD mileage logs of undercover vehicles, in
light of the entire proceedings and giving the error the effect
to which the whole record shows it is entitled, State v.
§prattling, 99 Hawari 312, 320, 55 P.3d 276, 284 (2002), there
was no reasonable possibility that the error might have
contributed to the conviction. State v. Pauline, 100 Hawafi
356, 378, 60 P.3d 306, 328 (2002). Even if such vehicle mileage
logs revealed that Officer Esperanza or other MPD officers drove
different distances on the date of the drug buy and date of the
raid respectively, such evidence would not necessarily prove that
the drug buy did not occur.
(6) The circuit court did not err by failing to find
that the State lost or destroyed Grindling‘s cell phone records.
Grindling acknowledged that such records were not in the State‘s
control and is estopped from now claiming otherwise. §§§ Roxas
v. MarCOs, 89 HaWafi 9l, l24, 969 P.2d l209, l242 (l998)
(internal quotation marks and citation omitted) (holding that the
doctrine of judicial estoppel "prevents parties from playing
'fast and loose' with the court or blowing 'hot and cold' during
the course of litigation"). v
(7) The circuit court gave Grindling the pretrial
advisement regarding his right to testify required by State v.
Lewis, 94 HawaFi 292, 297, l2 P.3d l233, l238 (2000), and
obtained on the record Grindling's waiver of his right to
testify. Tachibana v. State, 79 Hawafi 226, 236, 900 P.2d 1293,
l303 (l995).
(8) The circuit court did not abuse its discretion by
denying Grindling's motion for mistrial, given the speculative
nature of Grindling‘s assertion that jurors in this case
witnessed him in shackles. State v. Samonte, 83 Hawafi 507,
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523, 928 P.2d 1, 17 (1996) (holding that if a court does not
determine that an outside influence on a jury rises to the level
of being substantially prejudicial, the trial court is under no
duty to interrogate the jury); State v. Morishiqe, 65 Haw. 354,
362, 652 P.2d 1119, 1126 (1982) (internal quotation marks and
citation omitted) (holding that the jury's viewing of defendant
in shackles "does not, ipso facto, raise a presumption of
prejudice").
(9) The circuit court did not err by denying
Grindling‘s JOA Motion because circumstantial evidence adduced at
trial provided sufficient evidence to support a finding of
constructive possession beyond a reasonable doubt. State v.
Mundeii, a Haw. App. 610, 615-16, 322 P.zd 23, 26 (1991> ("A
person who . . . knowingly has both the power and the intention,
at a given time, to exercise dominion over a thing, either
directly or through another person or persons, is then in
constructive possession of it."); State v. Moniz, 92 Hawafi 472,
476, 992 P.2d 741, 745 (App. 1999) (internal quotation marks and
citation omitted) ("To support a finding of constructive l
possession the evidence must show a sufficient nexus between the
accused and the drug to permit an inference that the accused had
both the power and the intent to exercise dominion and control
over the drug "); HRS §§ 329-43.5(a) and 712-1243.
(10) The circuit court did not abuse its discretion in
sentencing Grindling to consecutive terms of imprisonment and not
probation.
(a) For a defendant to be eligible for probation
under HRS § 706-622.5 (Supp. 2008), the court must first
determine the defendant is non-violent after reviewing the
defendant's criminal history and other relevant information. 1n
the instant case, the court found Grindling not an appropriate
candidate for probation because of his past misconduct and
behavior. Gindling had a previous conviction for Terroristic
Threatening in the First Degree. The court concluded that
incarceration of Grind1ing was necessary to protect the public.
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(b) The court was within its discretion in
finding that regardless of what any substance abuse assessment or
proposed substance abuse plan stated with regard to the potential
effectiveness of rehabilitation, the factors enumerated in HRS
§§ 706-606 (1993) and 706-621 {1993) weighed in favor of
sentencing Grind1ing to imprisonment rather than probation. HRS
§§ 706-605 (Supp. 2009), 706-606, 706-62l, 706-622.5 & Cmt.;
§§§§§ v. Gay1Q;Q, 78 Hawafi 127, l50, 890 P.2d l167, 1190 (l995)
(holding that sentencing courts are to implement HRS § 706-606
from the perspective that the general sentencing scheme set out
in HRS Chapter 706 emphasizes deterrence and just punishment);
§§ate v. Akana, 10 HaW. App. 38l, 386, 876 P.2d l331, 1334 (1994)
("A sentencing court exercises a broad discretion in deciding
whether to impose a prison term.").
(c) The court did not plainly and manifestly
abuse its discretion by imposing consecutive sentences of
imprisonment upon Grindling even though the court did not
specifically state that it was imposing such sentences to achieve
retributive, incapacitative, and deterrent objectives. we find
no authority -- including Gaylord, which Grindling cites to in
support of this point -- for the notion that the court was
required to specifically state it was fulfilling such objectives
in imposing its sentences.
(d) we find no authority in this jurisdiction for
Grindling's claim that his sentence "shocks the conscience."
(11) The circuit court did not err by denying
Grindling's Petition for DNA Test because no reasonable
probability exists that Grindling would have escaped prosecution
or conviction if exculpatory results had been obtained through
DNA analysis of the glass pipe. Because the State showed that
Grindling constructively possessed the pipe, any absence of
Grindling's DNA on it would be of little consequence. HRS
§§ 329-43.5(a), 712-l243(1), 844D-121 (Supp, 2009), and 844D-123
(Supp. 2009).
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(l2) The State did not commit prosecutorial misconduct.
(a) The State did not impermissibly disclose a
confidential plea agreement between Grindling and the State when
the State attached to its opposition to the Motions to Compel a
letter from Grindling, in which Grindling threatened to expose
the identity of the C1 if the case was not dismissed. The letter
was not related to any plea discussion.
(b) Grindling is estopped from arguing that the
State impermissibly failed to produce the chain of custody
because at trial on August 5, 2008, Songstad stipulated to the
chain of custody in this case, Roxas, 89 Hawafi at 124, 969
P.2d at l242.
(c) Grindling does not explain how he was
prejudiced by the State's reference to a letter from Grindling to
Richard Gronna (Gronna) in which Grindling stated to Gronna, "If
1 see you on Maui, 1 will kill you" and "F-you, punk!", and we do
not see how it prejudiced Grindling. Regardless, the circuit
court was made aware of the letter when Gronna submitted a copy
of it to the court at a hearing on June 30, 2008 in connection
with Grindling's motion to discharge Gronna as his counsel. The
State did not commit prosecutorial misconduct by making reference
to the letter.
(d) The State did not impermissibly refuse to
produce fingerprint evidence collected from a glass pipe found on
the bedroom floor during the drug raid because, according to the
record on appeal, the State did not collect such evidence.
(e) The State did not commit prosecutorial
misconduct in its closing argument. See State v. Hauqe, 103
Hawafi 38, 56, 79 P.3d l31, 149 (2003) ("[I]n the absence of
improper burden shifting, this court has consistently viewed
prosecutorial comment on the state of the evidence as
legitimate.">. The State did not comment on Grindling's failure
to testify or misrepresent the evidence when it referred to
Grindling's admissions in its closing argument.
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(f) Given the obscurity of his contentions and
record references in his remaining points regarding prosecutorial
misconduct, we are unable to address those points. State v.
gd1§r, 108 Hawai‘i 169, 178, 118 P.3d 652, 661 (2005) (internal
quotation marks, citations, and brackets omitted) (holding that
"the appellant bears the burden to show error by reference to
matters in the record, and this court is not obligated to sift
through the voluminous record to verify an appe1lant’s
inadequately documented contentions.")
Therefore,
1T 18 HEREBY ORDERED that the Judgment, Conviction and
Sentence filed in the Circuit Court of the Second Circuit on
November 6, 2008 is affirmed.
DATED: Honolulu, HawaFi, March 19, 2010.
On the briefs:
Cynthia A. Kagiwada
on the Opening Brief j j 3
for Defendant-Appellant. dl2;%Aé%éUZ5 `
ge
Christopher Grind1ing, »Presiding Jud
Defendant-Appellant pro se
on the Supplemental Opening
Brief and Reply Brief.
Renee 1shikawa Delizo, C:ZZa*¢d, "
Deputy Prosecuting Attorney,
County of Maui, Associate Judge
for Plaintiff-Appellee.
f
/
,Associate Judge
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