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Electronically Filed
Supreme Court
SCWC-13-0000396
15-JUN-2017
08:16 AM
SCWC-13-0000396
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
DEIRDRE ICHIMURA, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000396; CR. NO. 12-1-1497)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Deirdre Ichimura (Ichimura or defendant) was charged
with assaulting a law enforcement officer. The incident occurred
when the officer was attempting to arrest Ichimura pursuant to an
arrest warrant. Ichimura was tried before a jury and did not
testify at trial.1 The jury found her guilty.
1
The Honorable Patrick W. Border presided.
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On appeal to the Intermediate Court of Appeals (ICA),
Ichimura argued that the trial court abused its discretion when
it permitted a police officer to testify that Ichimura appeared
to be “more on drugs than under a mental illness” at the time of
the incident, and that he believed that the court who issued
Ichimura’s arrest warrant “would have been made aware if
[Ichimura] had a mental illness.” The ICA affirmed Ichimura’s
conviction, and she sought review in this court.
We conclude that the circuit court erred in admitting
the police officer’s statements. We also conclude that the
circuit court erred in failing to conduct a proper colloquy
regarding Ichimura’s right to testify as required by State v.
Tachibana, 79 Hawai#i 226, 900 P.2d 1293 (1995). Accordingly, we
vacate the ICA’s Judgment on Appeal and the circuit court’s
Judgment of Conviction and Sentence, and remand to the circuit
court for further proceedings consistent with this opinion.
I. Background
A. Circuit Court Proceedings
Ichimura was charged by complaint with Assault Against
a Law Enforcement Officer in the Second Degree, in violation of
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HRS § 707-712.6 (Supp. 2012).2 The complaint alleged that on
December 30, 2011, Ichimura “did recklessly cause bodily injury
to Vincent Gonzales, a law enforcement officer who was engaged in
the performance of duty[.]”
1. Trial
Prior to the beginning of trial, the court conducted a
colloquy with Ichimura:
THE COURT: I want to briefly address, if I
might, Ms. Ichimura.
I want you to know that you have a
Constitutional right to testify in your own defense.
You should consult with your lawyer regarding the
decision to testify because, of course, he’s a good
strategist and he has access to other people who are
also good strategists. So it’s a decision that’s made
with care, but it’s your decision; and if you decide
that you want to testify, no one can prevent you from
testifying, if it’s your decision.
So you also have the Constitutional right not to
testify and to remain silent.
Oh, I should point out, if you do testify, of
course, after your attorney is finished questioning
you, then the State’s attorney would also have the
opportunity to cross-examine you. Of course, the
prosecutor’s function is to undercut witnesses’
testimony, so you could assume that that would be
probably not -- not friendly questioning in contrast
2
HRS § 707-712.6 provides:
(1) A person commits the offense of assault against a
law enforcement officer in the second degree if the
person recklessly causes bodily injury to a law
enforcement officer who is engaged in the performance
of duty.
(2) Assault of a law enforcement officer in the second
degree is a misdemeanor. The court shall sentence the
person who has been convicted of this offense to a
definite term of imprisonment, pursuant to section
706-663, of not less than thirty days without
possibility of probation or suspension of sentence.
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to your own attorney’s questioning.
You also have the Constitutional right not to
testify and to remain silent, and that’s your
decision. If you choose not to testify, I will
specifically inform the jury that it may not hold your
decision against you, that it cannot hold your silence
against you in deciding your case or even considering
that as one factor. They have to ignore it
altogether.
If you have not testified by the end of the
trial I will briefly question you to make sure that it
is your decision not to testify. You don’t have to
decide anything right now. The State can put on its
whole case and -- so you have time to make that
decision.
But do you understand all that I’ve described,
that these decisions to testify or not to testify are
your decisions?
[ICHIMURA]: (No audible response.)
THE COURT: All right. Very good.
During opening statements, the Deputy Prosecuting
Attorney (DPA) told the jury that they would hear testimony from
police officers about responding to the scene of a reported purse
theft, and encountering Ichimura. The DPA further said that the
officers would testify about Ichimura’s erratic behavior, her
refusal to respond to the officers’ commands, and that she kicked
Officer Gonzales in the knee and groin area.
Defense counsel’s opening statement began by explaining
that Ichimura is a diagnosed schizophrenic, and that her way of
interacting with people “is not the typical way you or I might
interact with somebody. She’s going to exhibit symptoms.”
Defense counsel then asserted that the evidence in the case would
show that “what the police claim happened is not actually what
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happened in this case,” and that Ichimura did not kick any of the
officers.
The State’s evidence established that when police
officer Christopher Nutter arrived at the scene, he saw two
people walking away and Ichimura waiving her hands at him and
flagging him down. Officer Nutter testified that Ichimura was
acting “[e]xcited, kind of hurried, [and] urgent[,]” and that
Ichimura told him that the two people walking away had possession
of her bag. Officer Nutter told the people to stop and received
their permission to show Ichimura their bag. Ichimura could not
describe “anything that would have been in the bag or what the
bag looked like[.]” Ichimura’s mother, Betty Ichimura (Betty),
who was with Ichimura at the scene, was “adamant” that the bag
did not belong to Ichimura.
Ichimura insisted that Officer Nutter make a theft
report, and he informed her that he would.3 Police officers
Denny Santiago and Vincent Gonzalez then arrived on the scene.
While Officer Nutter was completing the report, he heard Ichimura
engaging in some “verbal back-and-forth” with Officer Santiago.
Officer Nutter further stated that Ichimura was acting:
Just irrational--I mean, I understand that people get
upset. But typically when people call us to make the
3
Officer Nutter did not complete the theft report for Ichimura’s
bag because he was interrupted by the subsequent events.
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reports they understand that we are--we have safety to
be concerned with. We don’t want them reaching in
bags, we don’t want them going all over the place,
getting into it with other people around them, stuff
like that. They usually--most people let us--let us
do our part of the job without acting irrationally.
. . . .
[Ichimura was i]nsisting on reaching in bags,
disregarding officers’ requests to stay in one place,
answer questions without yelling at the officers,
things like that.
Officer Santiago testified that Ichimura was “extremely
upset, very agitated,” was on a “rant,” and was “very loud
spoken, almost to a point where yelling.” Officer Santiago also
testified that, based on Ichimura’s behavior, it appeared to him
that Ichimura was more likely under the influence of drugs rather
than suffering from a mental illness:
PROSECUTOR: Okay. So again, you didn’t make any--did
you make any judgment--I’m sorry--about whether she,
you know, was high or whether she was mental?
OFFICER SANTIAGO: It appeared to me that it would
lean more towards being on something. There’s
sometimes clues when somebody has mental illness, if
they’re–-
Defense counsel then objected as to foundation, which
the court sustained. The DPA asked Officer Santiago whether he
had been trained to recognize signs of drug intoxication.
Officer Santiago replied that he received annual training from
his department psychologist on “ways to recognize and ways to
deal with people with mental illness.” He also stated that his
training applied to people that are under the influence of drugs.
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Over the objection of the defense, the circuit court allowed
Officer Santiago to answer, reasoning that it went toward his
state of mind, which would help explain his interaction with
Ichimura:
PROSECUTOR: Okay. And, so, based on your training,
then, and experience, what is your opinion of the way
Defendant was behaving?
OFFICER SANTIAGO: It seemed to me that she was more–-
DEFENSE COUNSEL: And, again, Your Honor, I’m going to
object as to foundation.
THE COURT: Well, he may testify based on the
foundation as to what his perception was, which may in
turn give you some leads as to what he did. But
it--it--it’s not for the truth of the matter as such,
but he can describe his--his reaction. So I’ll allow
the testimony for that limited purpose.
. . . .
OFFICER SANTIAGO: It appeared to be that she was more
on drugs than having a mental illness.
PROSECUTOR: But you didn’t know whether she was on
drugs or not; right?
OFFICER SANTIAGO: No.
Officer Nutter stated that Ichimura’s uncooperative
behavior led him to check for an outstanding warrant. Officer
Santiago testified that while the officers were waiting for
police dispatch to confirm the warrant, Ichimura started yelling
for “somebody to call the police,” and that she “kn[ew] her
rights” and “doesn’t have a warrant.”
The check came back with a warrant for Ichimura, and
the officers had her sit down on the curb because they determined
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that she was so upset and angry that she might run away or hurt
someone. Officer Santiago feared that Ichimura might grab
something like a weapon that could hurt them, so he told Ichimura
to “not to go through her bag.”
Officer Santiago testified that during the incident, he
was not informed whether Ichimura had a mental illness or
physical ailment. Officer Santiago also testified that even if
he had known that Ichimura had a mental illness, the illness
“didn’t seem to impair [Ichimura] to the point where [he]
wouldn’t arrest her for the warrant,” and it would not have
affected the process in which he arrested Ichimura. Officer
Santiago further testified that the court that issued the warrant
for her arrest “would have been made aware if [Ichimura] had a
mental illness because that might have affect --[.]” Before he
could finish his sentence, defense counsel objected based on
speculation and foundation and moved to strike the response. The
court replied that “the question--once again, it involves the
state of mind, and the question of would he have done anything
differently . . . calls for some assumptions on his part. So I’m
going to allow the testimony.” Officer Santiago answered that he
would not have handled the case any differently if he had known
Ichimura had a mental illness.
Officer Gonzalez also told Ichimura several times to
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stop going through her bag, as the officers were concerned about
their safety. However, Ichimura began to go through her bag, and
when she did not stop, Officer Gonzalez leaned over Ichimura as
she sat on the curb, grabbed the bag, and tried to pull it from
her. Ichimura rolled onto her back and started kicking, and her
kick connected with Officer Gonzalez’ groin, which he described
as very painful.
Officer Gonzalez turned to the side to avoid being
kicked again and continued to hold onto the bag, worried for his
safety because he was not sure if the bag contained a weapon. As
Officer Gonzalez blocked his groin with his leg, Ichimura kicked
his leg several times.
After Ichimura was handcuffed and taken to a police
car, Officer Gonzalez asked Ichimura several times to bring her
legs into the car, but she refused to do so. As Officer Gonzalez
reached down to place Ichimura’s legs into the car, Ichimura
rolled onto her back and kicked Officer Gonzalez once again in
his groin, and, when he turned to the side, she kicked his leg
and then his kneecap. Officer Gonzalez told Ichimura to stop
kicking, and when she did not stop, he took out his pepper spray
and “gave her a one-second burst into her face.” The pepper
spray caused Ichimura to stop kicking.
After the State rested its case, the court held a bench
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conference on the record with counsel and the defendant:
THE COURT: (Indiscernible) do you wish to
testify? Do you remember a day or two ago
(indiscernible) testify if you wanted to
(indiscernible)?
So it’s your choice.
Now, you’ve seen how the process works, so
(indiscernible) if you testify [the deputy prosecuting
attorney] will cross-examine you (indiscernible)
friendly questioning. So you have to -- if you -- if
you do decide to testify, you have to (indiscernible)
cross-examination.
You also have the right not to testify. You
don’t have to say anything (indiscernible).
(Indiscernible) tell the jury that they can’t hold
that against you (indiscernible).
Do you understand the things that I've told you
this morning -- just now, while we’re up here?
THE DEFENDANT: Uh-huh.
THE COURT: Okay. So are there any other
witnesses (indiscernible)?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Okay. (Indiscernible).
THE DEFENDANT: (Indiscernible).
THE COURT: Okay. And after that, you really
have to decide, and it’s your decision.
So (indiscernible), do you want to testify?
THE DEFENDANT: I think I should.
THE COURT: You’re still going to talk about it?
[DEFENSE COUNSEL]: Yeah.
THE COURT: Okay. Just remember, he’s learned
counsel. (Indiscernible).
Okay?
THE DEFENDANT: Okay.
THE COURT: All right.
Betty Ichimura testified on behalf of the defense.
Betty testified that Ichimura cooperated with the officers and
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that she did not see Ichimura either kick or strike any of the
officers. Betty also testified that Ichimura had a handicap, for
which she takes medication and is treated by a psychiatrist.
The defense rested its case. The court then stated
that the evidence-taking portion of the trial was over, and
excused the jury. The court then held another conference
regarding Ichimura’s decision on whether to testify:
THE COURT: The jury has now departed. The
parties remain.
I would like to ask one more time now,
Ms. Ichimura. I -- I know you kind of sounded
like you wanted to testify. Your side has rested.
So your mom testified but you didn’t.
Now, what is your preference on testimony?
Because I can still open up the case again and
let you testify if you want to.
Okay?
THE DEFENDANT: No, thank you.
THE COURT: I’m sorry?
THE DEFENDANT: No, thank you.
THE COURT: Okay. That means you don’t want to
testify. Very good, then. That means that the
case – the testimonial part of the case is over.
The jury found Ichimura guilty as charged. The court
entered its Judgment of Conviction and Sentence on March 14,
2013, sentencing Ichimura to one year of probation, 180 days of
imprisonment, and various fees. Execution of sentence was stayed
pending disposition of Ichimura’s case on appeal.
B. ICA Appeal
On appeal to the ICA, Ichimura argued that the trial
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court abused its discretion when it permitted Officer Santiago to
testify that: (1) it appeared “Ichimura was more on drugs than
under a mental illness”; and (2) his belief that the issuing
court for Ichimura’s warrant for arrest “would have been made
aware if she had a mental illness.”
The State argued that the trial court properly
exercised its discretion in allowing Officer Santiago’s first
statement. The State agreed that Officer Santiago’s second
remark was speculative, but contended it was harmless because it
did not distract the jury from determining the elements of the
offense.
In a Summary Disposition Order, the ICA concluded that
the trial court did not abuse its discretion in allowing Officer
Santiago’s first statement. The ICA concluded that the trial
court should not have permitted Officer Santiago’s second
statement, but that any error was harmless. Therefore, the ICA
affirmed the circuit court’s judgment, and filed its Judgment on
Appeal on May 10, 2016.
II. Discussion
Ichimura’s application for writ of certiorari presents
two questions:
Whether the ICA gravely erred when it held that the
trial court did not abuse its discretion when it
permitted a police officer who was present at the
scene of the incident to testify that
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(1) Ichimura “appeared to be under the influence of
drugs rather than suffering from a mental illness” and
(2) that the judge who issued a bench warrant for
Ichimura’s arrest for an unrelated matter would have
known whether or not Ichimura had a mental illness.
For the following reasons, we determine that the
circuit court erred in admitting Officer Santiago’s statements at
trial and failing to conduct a proper Tachibana colloquy with
Ichimura.
We find that Officer Santiago’s testimony during trial
that: (1) it appeared Ichimura was “more on drugs than having a
mental illness;” and 2) he assumed that the court who issued
Ichimura’s arrest warrant “would have been made aware if
[Ichimura] had a mental illness” was improper. Officer
Santiago’s first statement was improper because it lacked
foundation and in any event was not relevant to explain the
officer’s subsequent actions. Thus, the circuit court should
have sustained defense counsel’s objection. Officer Santiago’s
second statement was improper because it was based on mere
speculation, and therefore the circuit court should have stricken
the testimony as requested by defense counsel.
Although we determine that the circuit court erred in
permitting Officer Santiago’s statements at trial, we need not
address whether the error was harmless because we conclude that
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the circuit court plainly erred in failing to conduct a proper
colloquy with Ichimura regarding her decision not to testify at
the end of the trial.4
In Tachibana v. State, this court held that in order to
“protect the right to testify under the Hawai#i Constitution,
trial courts must advise criminal defendants of their right to
testify and must obtain an on-the-record waiver of that right in
every case in which the defendant does not testify.” 79 Hawai#i
226, 236, 900 P.2d 1293, 1303 (1995). “A defendant’s waiver of a
constitutional right must be knowing, intelligent, and
voluntary.” State v. Staley, 91 Hawai#i 275, 287, 982 P.2d 904,
916 (1999). This court stated that when conducting the colloquy,
the trial court must “be careful not to influence the defendant’s
decision whether or not to testify and should limit the colloquy
to advising the defendant”:
that he [or she] has a right to testify, that if he
[or she] wants to testify that no one can prevent him
[or her] from doing so, [and] that if he [or she]
testifies the prosecution will be allowed to
cross-examine him [or her]. In connection with the
privilege against self-incrimination, the defendant
should also be advised that he [or she] has a right
4
Accordingly, we find it unnecessary to address the timing of this
colloquy, which took place after the defense rested, or to address the lack of
an audible response from Ichimura during the pretrial colloquy. See State v.
Han, 130 Hawai#i 83, 89, 306 P.3d 128, 134 (2013) (finding pretrial colloquy
“problematic” when there was no audible response by defendant reflected on the
record, since it was not known whether the defendant was able to understand
the court’s advisement, thus precluding appellate review of the adequacy of
the advisement). However, in view of the inadequacy of the colloquy during
the trial, we need not address the effect of the pretrial colloquy. Id.
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not to testify and that if he [or she] does not
testify then the jury can be instructed about that
right.
Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7 (quotation
omitted).
Here, the circuit court failed to engage Ichimura in a
proper Tachibana colloquy after the State rested its case. The
court stated to Ichimura that: (1) if she testified, then she
would be subject to cross-examination; and (2) she had the right
not to testify. The colloquy was insufficient because the court
failed to inform Ichimura that: (1) she had a right to testify;
and (2) if she wanted to testify that no one could prevent her
from doing so. Id. (quotation omitted).
Further, the circuit court did not obtain a proper on-
the-record waiver of Ichimura’s right to testify. This court has
stated that “colloquy between the judge and a defendant involves
a verbal exchange in which the judge ascertains the defendant’s
understanding of the defendant’s rights.” State v. Han, 130
Hawai#i at 84, 306 P.3d at 129. The “failure to engage in a true
exchange to ascertain the defendant’s understanding of the
individual rights comprising the Tachibana colloquy results in
the failure to ‘ensure that [the defendant] understood his rights
[and] amounts to a failure to obtain the on-the-record waiver
required by Tachibana.’” State v. Pomroy, 132 Hawai#i 85, 93,
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319 P.3d 1093, 1101 (2014) (emphasis added) (citing Han, 130
Hawai#i at 91, 306 P.3d at 136); see also Staley, 91 Hawai#i at
287, 982 P.2d at 916 (citation and internal quotation marks
omitted) (“[I]f the [trial] court does not establish on the
record that the defendant has waived his [or her] right to
testify, it is extremely difficult to determine at a
post-conviction relief hearing whether such a waiver occurred.”).
Here, the court “recited a litany of rights[,]” and
then asked Ichimura if she “unders[tood] the things that [it]
told her.” See Pomroy, 132 Hawai#i at 93, 319 P.3d at 1101. In
response, Ichimura simply said, “Uh-huh.” Moreover, this court
has stated that the presence of a “salient fact” concerning the
defendant’s ability to understand the colloquy “require[s] that a
court effectively engage the defendant in a dialogue that will
effectuate the rationale behind the colloquy and the
on-the-record waiver requirements as set forth in Tachibana.”
Han, 130 Hawai#i at 92, 306 P.3d at 137 (citing Tachibana, 79
Hawai#i at 235, 900 P.2d at 1302); see also United States v.
Duarte–Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997) (stating
that a “salient fact,” like a defendant’s language barrier or
mental illness, that is known to the court, “put[s] the court on
notice that [the defendant’s] waiver might be less than knowing
and intelligent,” and serves as an additional reason for the
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court to engage in a colloquy with the defendant “to carry out
its ‘serious and weighty responsibility’ of ensuring that a
defendant’s jury waiver is voluntary, knowing, and intelligent”).
In the instant case, Ichimura’s mother testified that
Ichimura had a “handicap” for which she took medication, and that
she was being treated by a psychiatrist. This was a “salient
fact” of which the circuit court was aware, and thus should have
served as an additional reason for the court to conduct a more
searching inquiry of Ichimura, rather than relying on her “Uh-
huh” response to a list of rights. Similarly, given Ichimura’s
initial inclination to testify when first engaged by the court
after the State rested, the court should have conducted a more
searching inquiry when it spoke with her again at the end of the
defense’s case.
This court has held that “to determine whether a waiver
[of a fundamental right] was voluntarily and intelligently
undertaken, this court will look to the totality of the facts and
circumstances of each particular case.” Han, 130 Hawai#i at 89,
306 P.3d at 134. Here, given the totality of the circumstances,
Ichimura’s waiver was not voluntarily and intelligently made.5
“[W]here plain error has been committed and substantial rights
5
At oral argument before this court, the State conceded that the
colloquy at the end of trial did not comply with Tachibana’s requirements, and
thus that there was a Tachibana violation.
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have been affected thereby, the error may be noticed even though
it was not brought to the attention of the trial court.” State
v. Miller, 122 Hawai#i 92, 117, 223 P.3d 157, 182 (2010)
(brackets and emphasis omitted) (quoting State v. Kaiama, 81
Hawai#i 15, 25, 911 P.2d 735, 745 (1996)); see also Hawai#i Rules
of Penal Procedure Rule 52(b) (1977). Given the circumstances
here, we conclude that Ichimura’s substantial rights were
affected by the circuit court’s errors.
The circuit court’s failure to conduct an adequate
colloquy was not harmless. “Once a violation of the
constitutional right to testify is established, the conviction
must be vacated unless the State can prove that the violation was
harmless beyond a reasonable doubt.” Tachibana, 79 Hawai#i at
240, 900 P.2d at 1307 (citations omitted). “[I]t is inherently
difficult, if not impossible, to divine what effect a violation
of the defendant’s constitutional right to testify had on the
outcome of any particular case.” State v. Hoang, 94 Hawai#i 271,
279, 12 P.3d 371, 379 (2000) (citation omitted). Here, the
record does not offer any indication as to what Ichimura would
have said under oath on the witness stand. See id. (citation
omitted). Thus, it cannot be said that the circuit court’s
inadequate colloquy was harmless beyond a reasonable doubt,
Tachibana, 79 Hawai#i at 240, 900 P.2d at 1307, because it is
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unknowable from the record whether any testimony by Ichimura
would have established reasonable doubt that she committed the
offense charged, see Pomroy, 132 Hawai#i at 94, 319 P.3d at 1102.
Therefore, we conclude that the circuit court erred in
failing to conduct a proper Tachibana colloquy.
IV. Conclusion
For the foregoing reasons, the circuit court erred in
admitting the two challenged statements of Officer Santiago, and
failing to conduct a proper Tachibana colloquy with Ichimura.
Accordingly, we vacate the ICA’s May 10, 2016 Judgment on Appeal
and the circuit court’s March 14, 2013 Judgment of Conviction and
Sentence, and remand this case to the circuit court for further
proceedings consistent with this opinion.
DATED: Honolulu, Hawai#i, June 15, 2017.
Elika O. Stimpson /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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