State v. Mark

LAW L|BHAHY

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IN THE SUPREME COURT OF THE STATE OF HAWAYI

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STATE oF HAWAI‘I ,
ReSpondent/Plaintiff-Appellee

VS.
SHANE MARK,

Petitioner/Defendant-Appellant
(NO. 26784; CR. NO. 03-1-O495)

STATE oF HAWA:‘I ,

Respondent/Plaintiff-Appellee “q
VS. §§
53

SHANE MARK,
Petitioner/Defendant-Appellant
(NO. 26785; CR. NO. 03-1-O496)

NO. 26784

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 03-1-O495 & O3~l-O496)

MAY l2, 2010

MOON, C.J., NAKAYAMA, ACOBA,'AND DUFFY, JJ., AND
CIRCUIT JUDGE KIM IN PLACE OF RECKTENWALD, J., RECUSED
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Defendant-Appellant Shane Mark (Petitioner)
applied for a writ of certiorari on August 27, 2009, to review

the judgment of the Intermediate Court of Appeals (ICA) filed on

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May 29, 2009, pursuant to its May 8, 2009 published opinion
(opinion)1 affirming in its entirety the August 2, 2004 Judgment
in Cr. No. 03-1-0495 (Mark I) filed by the first circuit court
(the court)2; and affirming the court’s‘August 2, 2004 Judgment
in Cr. No. 03-1-O496 (Mark II) with regard to the merits of the
convictions but vacating the extended term sentences, and
remanding Mark ll to the court. See State v. Mark, 120 HawaFi
499, 210 P.3d 22 (App. 2009). We hold that (l) for Petitioner’s
convictions of attempted assault in the second degree, HawaiH
Revised Statutes (HRS) §§ 705-500 (l993) and 707-711 (1993) in
Mark I, murder in the second degree, (HRS) § 707-70l.5 (l993) and

attempted assault in the first degree, HRS §§ 705-500 and 707-710

'(l993) in Mark Ll, jury instruction No. 65 with regard to Mark I

and Mark ll relating to the defense of use of force in defense of
others pursuant to HRS § 703-305 (l993) was erroneous, inasmuch
as it improperly included elements relating to the defense of
defense of self, HRS § 703~304 (1993 & Supp. 2003); however,

(2) the error was harmless because there was no evidence in the
record to support a finding that, under the circumstances as a
person would reasonably believe them to be, Petitioner was
justified in using force in defense of 0thers; (3) although there

was concurrent representation of Petitioner and a hostile witness

1 The opinion was authored by then-Chief Judge Mark E. Recktenwald
and joined by Associate Judges Craig H. Nakamura and Katherine G. Le0nard.

2 The H0norable Karen S.S. Ahn presided.

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by the Office of the Public Defender (OPD or the OPD) in a matter
unrelated to Petitioner’s trial, the concurrent representation
ended and OfD withdrew as the witness’s counsel before an actual
conflict arose and, thus, retrial is not necessary;

(4) Petitioner’s argument that he was denied the right to a fair
trial due to prejudicial publicity, jury taint, and prosecutorial
misconduct is incorrect inasmuch the record contains no evidence
to support such a conclusion; and (5) on remand the court may
empanel a jury to consider whether Petitioner should be sentenced
to an extended term either pursuant to the judicially amended
version of the extended term sentencing statute or pursuant to
Act 1 of the Second Special Session of the 2007 legislature. §ge
2007 Haw. Sess. L. (Second Special Session) Act 1 at 1.

I.

The following essential matters, some verbatim, are

from the record and the submissions of the parties.
A.

In summary, with respect to Mark I, in January of 2003,
Petitioner purchased a camera from Kimo and John Piko (Piko).
Petitioner then sold the camera to his friend, Russell Kimura
(Kimura), who, a few days later, called Petitioner to tell him
that the camera did not work. After informing Kimo that the
camera was broken, Kimo agreed to return the money in exchange
for the camera. On February 1, 2003, Petitioner, along with his

pregnant girlfriend Leslie Martin (Martin), drove to a meeting at

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a parking lot in order to complete the exchange. Although
Petitioner had planned on meeting Kimo at the meeting, Piko and
Denny Paikai (Paikai) arrived instead. Eventually, Kimura and
his girlfriend Carle Enosara arrived with the camera.

Conflicting testimony was adduced at trial as to what
happened next. The witnesses agreed, however, that a
disagreement ensued regarding a box that contained the camera,
initially held by Petitioner, which eventually ended up in Piko’s
possession. Petitioner testified that at that point “he took out
the gun, pointed it above Piko's head and fired off a round into
the air.” According to Petitioner, he “was standing by the car
right next to fMartin]. She was sitting on the driver's side.
Paikai was moving to the front of the car by the headlightsQ”
Petitioner “testified that he took the gun and reached over the
car and fired a single shot into Paikai’s leg; [Petitioner] said
he meant to shoot the leg and did not aim for the head or body.”

B.

In summary, with respect to Mark 1I, on March 4, 2003,
Petitioner, accompanied by Martin, went to a Baskin Robbins ice
cream store in Kapolei to meet his ex-girlfriend Melissa Sennett
(Sennett) and their daughter Shansy (Daughter). At the time,
Petitioner was wanted by police in connection with Mark I.
Operating on a tip from Sennett, police officers Glenn Gaspar
(Officer Gaspar) and Calvin Sung (Officer Sung), both dressed in

plain clothes, entered Baskin Robbins and attempted to arrest

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Petitioner. While carrying out the arrest, a struggle ensued,
during which Petitioner fired three shots from his gun. Officer
Gaspar died as a result of gunshot wounds from the struggle5

C.

1.

On March 6, 2003, two indictments were filed against
Petitioner. In the first indictment related to Mark I,
Petitioner was charged with one count of attempted murder in the
second degree of Piko (Count I), and one count of attempted
murder in the second degree of Paikai (Count 1l), HRS §§ 705-

500,? 707-701.5,4 and 706-656 (1993 & Supp. 2003),5 two counts of

3 HRS § 705-500 states in relevant part:

(l) A person is guilty of an attempt to commit a
crime if the person:

(b). Intentionally engages in conduct which, under
the circumstances as the person believes them to
be, constitutes a substantial step in a course
of conduct intended to culminate in the person's
commission of the crime.

'(2) When causing a particular result is an element
of the crime, a person is guilty of an attempt to commit the
crime if, acting with the state of mind required to
establish liability with respect to the attendant
circumstances specified in the definition of the crime, the
person intentionally engages in conduct which is a
substantial step in a course of conduct intended or known to
cause such a result.

4 HRS § 707-701.5 provides as follows:

(1) Except as provided in section 707-701, a person
commits the offense of murder in the second degree if the
person intentionally or knowingly causes the death of
another person.

(2) Murder in the second degree is a felony for
which the defendant shall be sentenced to imprisonment as
provided in section 706-656.

5 ' HRS § 706-656 involves the sentencing of persons “for first and
second degree murder and attempted first and second degree murder” and, thus,
(continued..J

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carrying, using or threatening to use a firearm in the commission
of a separate felony, HRS §§ 134-6(a) (Supp. 2O03)6 and 134-6(e)
(Supp. 2003)7 (Counts 111 and 1V), and one count of ownership or
possession prohibited of any firearm or ammunition by a person
convicted of certain crimes, HRS §§ 134-7(b) (Supp. 2003)8 and
134-7(h) (Supp. 2003)9 (Count V).
On November 7, 2003, Petitioner pled no contest to
Count V in Mark 1.
2.
1n the second indictment related to Mark 11, Petitioner
was charged with the offense of murder in the first degree of

Officer Gaspar, HRS §§ 707-701(1)(b) (1993 & Supp. 2003)w and

5(...continued)
was not technically “violated” by Petitioner.

5 HRS § 134-6(a) provides that

[i]t shall be unlawful for a person to knowingly carry on
the person or have within the person's immediate control or
intentionally use or threaten to use a firearm while engaged
in the commission of a separate felony, whether the firearm
was loaded or not, and whether operable or not[.]

7 HRS § 134-6(e) provides in relevant part that “[a]ny person
violating subsection (a) or (b) shall be guilty of a class A felony.”

8 HRS § 134-7(b) states that “[n]o person who is under indictment
for, . . . or has been convicted in this state or elsewhere of having

committed a felony, or any crime of violence, or an illegal sale of any drug
shall own, possess, or control any firearm or ammunition therefor.”

9 HRS § 134~7(h) provides that “[a]ny person violating subsection
(a) or (b) shall be guilty of a class C felony; provided that any felon
violating subsection (b) shall be guilty of a class B felony.”

w HRS § 707-701(1)(b) states that “[a] person commits the offense of
murder in the first degree if the person intentionally or knowingly causes the
death of . . . [a] law enforcement officer, judge, or prosecutor arising out

of the performance of official duties[.]”

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706-656 (Count 1), one count of attempted murder in the first
degree of Officer Sung, HRS §§ 705-500 and 707-70l(1)(a)“ (Count

11), one count of carrying, using, or threatening to use a

2firearm in the commission of a separate felony, HRS §§ 134-6(a)

and 134-6(e) (Count 111), one count of possession of any firearm
by a person convicted of certain crimes, HRS §§ 134-7(b) and 134-
7(h) (Count 1V), one count of promoting a dangerous drug in the
third degree, HRS § 712-1243 (1993 & Supp. 2003)” (Count V), and
one count of unlawful use of drug paraphernalia, HRS § 329-
43.5(3) (1993)13 (Count v:).
0n November 7, 2003, Petitioner pled no contest to
Counts 1V, V, and V1 in Mark 11.
D.
1.

Mark 1 and Mark 11 were consolidated “at [Petitioner’s]

“ Pursuant to HRS § 707-701(1)(a), “[a] person commits the offense
of murder in the first degree if the person intentionally or knowingly causes
the death of . . . [m]ore than one person in the same or separate incident[.]”

” HRS § 712-1243(1) provides in relevant part that “[a] person

commits the offense of promoting a dangerous drug in the third degree if the
person knowingly possesses any dangerous drug in any amount.”

“ HRS § 329-43.5(a) states as follows: ,

(a) 1t is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to plant,
propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled
substance in violation of this chapter. Any person who
violates this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section 706-660
and, if appropriate as provided in section 706-64l, fined
pursuant to section 706-640.

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request, and they were tried [by] a jury in December 2003.”

Mark, 120 Hawaifi at 507, 210 P.3d at 30. 1n regard to Mark 1,
Petitioner testified that after he arrived in the parking lot, he
looked through the rear window of his car and saw Piko and Paikai
approaching. Petitioner “thought they was going to do something
to us” and he felt “[p]retty frightened . . . because their looks
was intimidating and they was pretty big, and it’s just their
attitudes.” At that point, Petitioner “grabbed the gun from the
back seat and [] put it in [his] waist” “for protection, safety,”
although Petitioner did not plan to use the gun, Petitioner said
he was worried about safety “[blecause [Martin] was in the car
and she was pregnant, and also my friend’s girlfriend was right
there.”

Petitioner testified that he was standing between the
cars while Piko and Paikai approached him from opposite
directions. According to Petitioner, Piko “whack[ed]
[Petitioner’s] car pretty hard with his one hand” and then
“turned towards me and he told me we just going take the camera
away from you, what you going do?” Petitioner then “gave [Piko]
the camera and [] saidy here, you can have it.” According to
Petitioner, Piko then “smiled and he was about to put the camera
down on the trunk, and he turned towards me and he said that we
just going take everything from you.” Petitioner took this to
mean that “we was being robbed[,]” and he felt “[p]retty scared”

because “[t]he guys was going trap me between the two cars and

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beat me up.” Petitioner stated that he was also afraid for
Martin and his unborn child because “[s]he would see these guys
beating me up, and she would come out and try and stop them.”
Petitioner then pulled out his gun intending to scare Piko and
Paikai away. He “pointed it above [Piko’s] head and [] shot a
round,” at which point Piko ran off.

After Petitioner lost sight of Piko, he turned to look
for Paikai. Petitioner saw him “kneeling down, and he was coming
around [Petitioner’s] car towards [Petitioner].” Petitioner
“[f]elt like . . . [Paikai] might have a weapon or something[,]”
and he “was real scared[.]” Petitioner “reached over the car,
and when [Paikai] was about to turn the corner by the headlights
by the front fender, [Petitioner] shot him in the leg.”
Petitioner “mean[t] to shoot his leg” in order “to stop him.”

As to Mark 11, on direct examination, Petitioner
testified that he went to Baskin Robbins with Martin in order to
meet Daughter, Sennett, and Sennett’s boyfriend," later
identified as John Kortz (Kortz). Petitioner had a gun in his
possession that he was carrying . . . with [him] everywhere.”
Petitioner entered Baskin Robbins, and saw Daughter, Sennett, and
Kortz. He went up to Daughter and patted her on the back.
Petitioner stated that as he was standing behind Daughter, who

was sitting on a chair, he “pulled out [a] necklace and was going

14 Petitioner initially referred to Sennett’s boyfriend as “Scott,"
but later in his testimony referred to the same person as "John Kortz.”
"Scott" was John Kortz's middle name, as well as his nickname.

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to put it around her neck.” When asked if Petitioner was able to
“get the necklace on her neck[,]” Petitioner replied “no,” and
stated that “[a]t that time, these two guys was trying to grab

ll

Hl€.

According to Petitioner, he did not see the “two guys”
before they tried to grab him, and that he heard them say, “Put
your hands up, put your hands up.” Once the men had grabbed
Petitioner, he “responded” by “[t]r[ying] for get these guys off
of me . . . [b]ecause 1 didn't know who they wasj” Petitioner
stated that he “had a feeling that they was going to pull me out
of the store” to “[t]ake me someplace and kill me.” Petitioner
testified that in response to the efforts of the two men to “move
me towards my daughter and out the door[,]” he “backed up” and
“took them as far away from my daughter as 1 could.” Petitioner
stated he was “[p]retty scared, because my daughter can get
hurt.” During the struggle, a third man came up behind
Petitioner and grabbed him in_a “bear hug.” Petitioner then got
his right hand free, and grabbed the gun “[t]o get these guys off
of me.” Petitioner said, “1 turned to one side like this, and
then 1 shot him one time.” Petitioner then “shot two more
times.”

According to Petitioner, had he known that the men
grabbing him were police, he “would have stopped and listened to
every command they told me . . . [b]ecause 1 would know that my

daughter them would be safe.” Petitioner stated that he “first

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learn[ed] that the people that had grabbed [him] were police
officers . . . [a]s they were picking [him] up and dragging [him]
out of the store.”

1 Officer Sung testified that he and Officer Gaspar
entered the store and “[one] hundred percent positively 1D’d
[Petitioner], and then we turned toward [Petitioner]” and lifted
up their shirts to display their police badges. Officer Sung
stated that Petitioner was “about eight to ten feet away” at the
time, He stated that “then 1 see [Petitioner] reaching for
something, and from my police training and experiences, usually
when they reach for something in their pocket, usually it means
weapon, so 1’m telling [Petitioner] pull [sic] your hands up,
police, and then 1 kept on approaching [Petitioner].” Officer
Sung testified that Petitioner “was reaching toward his right
pants pocket[,]” “and that’s the reason why 1 told him ‘Put up
your hands, police.’”

According to Officer Sung, “[Officer Gaspar] reache[d]
over, he was using his -- both of his hands, he grabbed. He’s
using his left hand to grab [Petitioner’s] right wrist area, and
he was using his right hand to grab his left hand area, and then
1 was trying to grab his elbow area to -- to restrain his right
arm.” Officer Sung stated that he was grabbing for Petitioner’s
right hand in order to stop Petitioner from “[r]eaching for any
kind of weapons, possibly gun or possibly knife, possibly harming

other people.” Officer Sung went on to describe the struggle,

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stating that Petitioner “was trying to break free of us, our
restraint, and then he was reaching something into his pocket.”

Petitioner was then able to get his hand free to grab
the gun, and Officer Sung saw it pointed at both him and Officer
Gaspar. As the struggle continued, Officer Sung “heard two
gunshots going off, like right after the other.” The group then
fell to the ground, and, according to Officer Sung, Petitioner
“tried to curl his arm, and then he was pointing the gun at me at
the same time[.]” Officer Sung testified that Petitioner pointed
the gun at him “at least two times.” Officer Sung next heard a
third detective say that he had taken Petitioner’s gun, and then
Officer Sung was able to handcuff Petitioner and place him under
arrest,

At that trial, the court gave jury instructions
regarding “the defense of another person,” as well as self-
defense, to Counts 1-1V of Mark 1 and Counts 1-111 of Mark 11.

As pointed out by the 1CA, “[t]he instructions were similar to
each other, with some exceptions that are not relevant to this
appeal.”“ Mgrk, 120 HawaFi at 522, 210 P.3d at 45. 1n his
Application, Petitioner takes issue with Jury 1nstruction No. 65,
relating to a defense to the charge of murder in the first degree

(Count 1 in Mark 11), which stated in part as follows:

[l] 1n Count [1] of [Mark 11], if you unanimously find
that the prosecution has proven beyond a reasonable doubt

“ Petitioner did not disagree with this conclusion.

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(Emphases added.)

No.

65.

all of the material elements of Murder in the First Degree,
or of the included offense of Murder in the Second Degree,
or of the included offense of Manslaughter based upon
reckless conduct, then you must consider whether the force
used by Defendant was justifiable based upon use of force in
defense of another person. .

[2] Justifiable use of force or deadly force in
defense of another person is a defense to the offenses of
Murder in the First Degree, Murder in the Second Degree, and
Manslaughter based upon reckless conduct. The burden is on
the prosecution to prove beyond a reasonable doubt that the
force used by the Defendant was not justifiable based upon
use of force in defense of another person. 1f you
unanimously find that the prosecution has not met its
burden, then you must find the Defendant not guilty as to
Count [1] of [Mark 11]. 1f you are not unanimous as to
whether the prosecution has met its burden, then a verdict
cannot be returned as to Count [1] of [Mark 11].

[3] The use of force upon or toward another person is
justified to protect a third person when:

1. Under the circumstances as the Defendant
reasonably believed them to be, the third person would have
been justified in using such force to protect himself or
herself; and

2. The Defendant reasonably believed that his
intervention was immediately necessary to protect the third
person.

[4] The reasonableness of the Defendant’s belief that
the use of such protective force was immediately necessary
shall be determined from the viewpoint of a reasonable
person in the Defendant's position under the circumstances
of which the Defendant was aware or as the Defendant
reasonably believed them to be.

[5] The third person would have been justified in
using force upon or toward [Officer Gaspar] if he or she
reasonably believed that such force was immediately
necessary to protect himself or herself on the present
occasion against the use of unlawful force by [Officer
Gasparl.

[6] The third person would have been justified in
using deadly force upon or toward (Officer Gaspar] if he or
she reasonably believed that deadly force was immediately
necessary to protect himself or herself on the present

occasion against death, serious bodily injury, or
kidnapping.
[7] The use of deadly force is not justifiable [(a)]

if the Defendant, with the intent of causing death or

serious bodily injury, provoked the use of force against

_himself in the same encounter, or (b) if the Defendant

knows that he can avoid the necessity of using such force
with complete safety by retreating.

Petitioner did not object to Jury 1nstruction

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2.

On December 22, 2003, in regard to Mark 1, the jury
returned the following verdict: Count 1, no verdict on the
charge of attempted murder in the second degree of Piko; Count
11, Petitioner guilty of the included offense of attempted
assault in the second degree of Paikai; Count 111, no verdict on
the first of two charges of carrying, using or threatening to use
a firearm in the commission of a separate felony, Count 1V,
Petitioner guilty on the second charge of carrying, using, or
threatening to use a firearm in the commission of a separate
felony. Also on December 22, the jury returned the following
verdict in regard to Mark 11: Count 1, Petitioner guilty of
murder in the second degree of Officer Gaspar; Count 11, no
verdict on the charge of attempted murder in the first degree of
Officer Sungi Count 111, Petitioner guilty of carrying, using or
threatening to use a firearm in the commission of a separate
felony.

As to Counts 1 and 111 in Mark 1 and Count 11 in Mark
_1, the court found “manifest necessity” and “set these cases for
retrial[.]” As to the four counts of which Petitioner was found
guilty, the court left “the sentencing date until after the
retrial[.]”

On March 31, 2004, Respondent/Plaintiff-Appellee State

of Hawafi (Respondent or the prosecution) filed motions for

extended terms of imprisonment in Mark 1 and Mark 11.

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E.
1.
On July 7, 2004, Petitioner’s second trial began as to
Counts 1 and 111 in Mark 1 and Count 11 in Mark 11. On July l4,
2004, during the second trial, at a conference with the court out
of the presence of the jury, Deputy Public Defender (DPD) Debra
Loy (Loy), who was representing Petitioner, engaged in the
following colloquy regarding the prosecution’s plan to put Piko

on the stand:

[LOY]: Your Honor, we have also been informed that []
Piko is in custody; and rather than have a question about
prior bad acts, we need to find out what that is. 1 have
not been able to find him in the records of the state
custody people. And, so, 1 need an offer of proof what he's

serving time for.
THE COURT: How long have you known that [] Piko was

in custody? -

[LOY]: This morning 1 had it confirmed. 1 thought []
Paikai was in custody, and he denied it, and he told me Piko
was; .

THE COURT: 1s [] Piko in custody?

[PROSECUTOR]: Well, Judge, 1 find it impossible to
believe that they don't know that he's in custody since
their office represented him in the last six months, in this
building¢ Jason Burks (Burks) ¢ Deputy Public Defender,

which 1 think raises serious ethical problems in that

office. But they did it; they know it.
[LOY]: And you knew it all this time?
[PRosEcUToR]: No, no. '
[LOY]: We haven't known it.

(Emphases added.) Loy argued that “[i]f [Piko is] on probation
and we’re still representing him, we have a mistrial problem, and
we cannot cross-examine him.” However, the prosecutor argued
that “[t]hey can cross-examine him on anything[.]”

The discussion continued at length, with Loy explaining
that she felt there was an “ethical problem” related to

representing Petitioner and Piko at the same time, and the

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prosecutor arguing that no such problem existed. Loy argued that
“[t]he issue is related to [Petitioner's] right to have
representation, full and fair representation by a person who has

no loyalty to anyone else, Judge.” The colloquy then resumed:

THE COURT: . . . 1 do not know, 1 will not know until
1 look at the case law on this duty to defend and duty of
loyalty and whether in a big office like the Public
'Defender's Office that [sic] can be divided.

[LOY]: Well, [] Burks works in the same section 1 do.
We probably share the same secretary. 1 have to confirm
that.

THE COURT: Are you asking for a mistrial?

[LOY]: 1’m asking for a mistrial.

THE COURT: Okay. We'll take it under advisement.
We're going to have to excuse the jury, though.

[PROSECUTOR]: And we’re objecting, Your Honor.

(Emphases added.)
On July 20, 2004, Petitioner filed a Motion for

Mistrial and Motion to Withdraw as Counsel and to Appoint Other
Counsel (Petitioner’s Motion). Attached to Petitioner’s Motion
was a “Declaration of Counsel,” in which Loy explained that

(1) in November and December of 2003, she and [DPD] Teresa
Marshall (Marshall) represented Petitioner during his first
trial, (2) “[a]t that time, neither [Loyj nor Marshall was aware
that [Piko] had been represented by the [OPD] in 2001 and 2002,
for forgery and drug charge[s] in which Piko was sentenced to
probation[,]” (3) “[i]n April of 2004, although then unknown by.
[Loy] and Marshall, the [0PD], through another [DPD], represented
[Piko] in a Motion to Revoke Probation for the earlier [f]orgery
offense[,]” (4) prior to July l4, 2004, when Loy sought an offer
of proof from the prosecution regarding Piko, “[she] and Marshall

were unaware . . . about the representation of [Piko,]”

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(5) “neither [Piko] nor [Petitioner] is willing to waive any
conflict of interest arising from their dual representation[,]”
(6) “[i]n the current trial the defense is compelled to either
cross-examine [Piko] or to call and question him as an adverse
witness, using all available impeachment[,]” and “[Loy] would be
duty bound to use the information from the prior conviction and
any other impeachment she could find to adequately represent
[Petitioner] and yet bound not to adversely impact Piko.”

Loy declared that she had communicated with Charles
Hite (Hite) from the Office of Discip1inary Counsel, and that
“Hite gave an ‘informal opinion’ that the [OPD] had a conflict of
interest and must move for a mistrial and move to withdraw from
representing [Petitioner].” Loy concluded that the 0PD “has a
conflict of interest which requires a mistrial and withdrawal
from representation of [Petitioner].”

1n a Memorandum in Support of Petitioner’s Motion,
Petitioner argued that (1) in representing Petitioner, Loy would
be required to impeach Piko, which would be “‘directly adverse’
to [Piko’s] interest[,]” (2) the conflict of interest was not
remedied by the fact that Petitioner and Piko were represented by
different DPDs because under the Hawai/i Rules of Professional
Conduct (HRPC), the 0PD was “more akin to a ‘law firm’ than a

‘governmental agency’ under [HRPC] Rule l.10[,]”M (3) [t]he

“ HRPC Rule 1.l0 states in relevant part:

(continued...)

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[OPD] does not have in place any ‘screens' or procedures to allow

separate representation without conflict[,]” (4) the DPDs

representing Petitioner and Piko “have the same secretary, the
same supervisor, and share investigators and messengers and
receptionists[,]” and (5) “the [DPDs] of the [OPD] are totally
integrated into one firm within the meaning of the [HRPC].”

On July 20, 2004, the court held a hearing on
Petitioner’s Motion. At the hearing, Petitioner’s witness
Timothy Ho (Ho), the Acting Chief Deputy Public Defender,
testified on cross:examination that DPDs shared clientg
information with one another because “it is as if we are one firm
and we can freely share that information among other attorneys
within that firm in order to help us prepare cases.” On July 21,
2004, the court orally denied Petitioner’s Motion. Additionally,
the court disqualified the OPD from further representing Piko.

On August 16, 2004, the court issued its “Findings of
Fact [(findings)], Conclusions of Law [(conclusions)], and 0rder

Denying [Petitioner's] Consolidated Oral Motions for Mistrial and

“(...continued)

’ (a) While lawyers are associated in a firm, none of
them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rules
1.7, 1.8(c), 1.9 or 2.2.

(c) A firm disqualification prescribed by this rule
may be waived by the affected client by consent after
consultation.

(d) The disqualifications of Rules 1.7, 1.9(a),
~1.9(b), or 1.l1(c)(l) shall not be imputed to government
lawyers provided the disqualified government lawyer has been
screened from participation in the matter.

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to Withdraw as Counsel.” 1n sum, the court found that

(1) “[n]either [] Burks nor the [OPD] have any matters pending
with regard to Piko and the [OPD] has closed the file[,]”

(2) “Loy had not learned of any secrets of Piko nor did she have
knowledge of any confidential attorney-client communications had
between Piko and [] Burks[,]” (3) “[Petitioner's] trial does not
involve either the same or any matter substantially related to
the facts and circumstances regarding the case in which Piko was
placed on probation[,]” and (4) “Loy’s ability to represent
zealously the interests of [Petitioner] will not be affected by
Piko’s status as former client of the [OPD].”

The court determined that (l) “there is no basis to
conclude that confidential attorney-client communications had
between [] Burks and Piko will be communicated to either [] Loy
or [j Marshall[,]” (2) “Piko’s status is that of a prior or
former client for purposes of conflict analysis[,]” (3) “Piko’s
status as a former or prior client makes State v. Richie, 88
HawaFi 19, 960 P.2d 1227 (l998), distinguishable from the
situation in the instant matter[,]” (4) neither HRPC Rule 1.7 nor
Rule 1.9 prevented the OPD from representing Petitioner, (5) the
ability of Loy and Marshall to represent Petitioner would “not be
materially limited due to [Burks's] prior representation of
Piko,” and (6) the OPD was immediately disqualified from

representing Piko.

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The OPD continued to represent Petitioner at the
resumption of his trial. On July 22, 2004, Loy called Piko as an
adverse witness, Piko admitted on direct examination that in the
parking lot during the incident related to Mark 1, he asked
Petitioner, “[W]hat you going do if 1 take [the camera] fromj
y<>um"

2.

On July 30, 2004, the jury returned a verdict on the
remaining counts in Mark 1 and Mark 11. As to Mark 1, the jury
was unable to reach a verdict on the remaining counts. As to
Mark 11, the jury found Petitioner guilty of the included offense
of attempted assault in the first degree of Officer Sung. On
August 2, 2004, the court held a sentencing hearing, during which
it dismissed Counts 1 and 111 in Mark 1.

As to the remaining counts in Mark 1, the court denied
the prosecution’s motion for extended term of imprisonment.
However, in regard to the remaining counts in Mark 11, the court
granted the prosecution’s motion for extended term of

imprisonment,

finding that [Petitioner] was a persistent and multiple
offender and that extended terms of imprisonment were
necessary for the protection of the public. Accordingly,
[the court1 sentenced fPetitionerl to an extended term of
imprisonment of life without the possibility of parole for
Count 1 in Mark II, rather than the term of life with the
possibility of parole that would otherwise apply to a second
degree murder conviction. §g§ HRS § 706-661 (Supp. 2003).
The court also imposed extended terms of imprisonment on the
other counts of conviction in Mark 11.

Mark, 120 HawaiH_at 508, 210 P.3d at 31 (emphasis added).

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F.
On appeal to the 1CA, Petitioner argued nine different
grounds for reversing or vacating his convictions and sentences,

Petitioner argued that the court

erred by (1) granting in part the Honolulu Police
Department's (HPD) motion to quash a subpoena for certain
1nternal Affairs Division records; (2) admitting a slow
motion version of a videotape taken during the incident at
{] Baskin-Robbins and refusing [Petitioner's] proposed jury
instructions on the videotape; (3) incorrectly instructing
the jury on the justification of defense of others in the
first and second trials; (4) referring the jury back to the
court's instructions in response to a communication during
deliberations in the first trial; (5) denying his motion for
mistrial and his counse1's motion to withdraw during the
second trial after it was discovered that the [OPD] had
represented Piko; and (6) denying his motion for a mistrial
after it was discovered during the second trial that Piko
believed that he had made a deal with [Respondent] in
exchange for his testimony in the first trial, and after a
juror received an anonymous voice mail which suggested that
the juror should “watch [her] back.” [Petitioner] further
argue[d] that [(7)] he was denied a fair trial and impartial
jury in the first trial based on factors including
prejudicial publicity and the prosecutor's questioning of
witnesses during trial, and that [(8)] there was
insufficient evidence to convict him of the attempted
assault in the first degree of Officer Sung in the second
trial. . . . [Petitioner] also argues that [(9)] the
extended term sentences in Mark 11 violated his

constitutional rights.

1d. The 1CA rejected Petitioner’s arguments with respect to his

convictions and affirmed the decision of the court. 1g4 Not all
of the arguments presented to the 1CA were included in his
App1ication to this court.

11.

Petitioner lists the following questions in his

Application:
1) Did the [1CA] Err in Ruling That Any Error in the Jury
1nstructions on Defense of Others Was Harmless Error?
2) Did the [1CA] Err in Ruling That the Trial Court Did

Not Err in Denying the Motion for Mistrial and
Withdrawal of Counsel in the Second Trial?

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3) Did the [1CA] Err in Ruling That [Petitioner] Was Not
Denied a Fair Trial?
4) Did the [1CA] Err in Not Remanding Mark 11 Only For

Non-Extended Sentencing?
1n seeking to reverse or vacate his convictions, Petitioner has
the burden to demonstrate that the 1CA gravely erred. §g§ HRS
§ 602-59 (Supp. 2009).

Respondent filed a memorandum in opposition on
September 10, 2009.

111.
A.

As to Petitioner’s first question, preliminarily, at
Petitioner’s first trial, the court gave several jury
instructions regarding the defense of others. 1n his
Application, Petitioner states that in his Opening Brief he
“argued plain error in all the court's instructions on Defense of
Others because they contained misleading and confusing language.”
The 1CA noted that “[t]he instructions were similar to each
other, with some exceptions that are not relevant to this
appeal.” M§rk, 120 HawaiH.at 522, 210 P.3d at 45. Petitioner
does not take issue with this conclusion, and only identifies one
jury instruction in his Application, Jury 1nstruction No. 65, in
arguing that the court's jury instructions on defense of others
were erroneous. Thus, only Jury 1nstruction No. 65 in regard to
Petitioner’s first trial is substantially examined.

1t does not appear that Petitioner directly challenges

any jury instructions related to his second trial. Petitioner’s

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Application refers to the second trial only once in regard to
jury instructions. He states that “[t]he prosecutor made the
same argument at the second trial” as he did at the first trial
“that it was [Petitioner] who provoked the use of force by
reaching for his gun first.” However, Petitioner does not say
what this argument had to do with any particular jury instruction
given at his second trial. Additionally, Petitioner relates that
“[t]he 1CA found that ‘. . . there was no evidence establishing=
that [Petitioner] reasonably believed that Martin or Daughter
would have been justified in using deadly force to protect
themselves inside [] Baskin Robbins.’” (Quoting Mark, 120
Hawaifi at 528, 210 P.3d at 51. (Ellipsis in original.)) The
1CA had reached this conclusion in regard to Petitioner’s second

trial. Similar to his reference to the prosecutor's argument,

`Petitioner does not explain why the 1CA was incorrect in regard

to any jury instructions given at his second trial.

Assuming, arguendo, that in his Application Petitioner
has properly challenged jury instructions on defense of others in
his second trial, “only one of those instructions, which related
to the first degree attempted murder charge for Officer Sung and
the lesser included offenses of that charge, resulted in a
conviction.” Mg;k, 120 HawaiH at 527, 210 P.3d at 50. That

jury instruction is discussed further infra.

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B.
1.
Petitioner argues that “[b]y omitting and mixing up
crucial elements of HRS [§] 703-304[“] and [HRS § 703-305
relating to the defense of others], the jury instructions on
defense of others were confusing, misleading, and prejudicial.”
Relying on State v. Augustin, 101 HawaiH.127, 63 P.3d 1097

(2002),” Petitioner asserts that “[u]nder HRS [§] 703-305, the

“ HRS § 703-304, related to the defense of self, provides in
relevant part as follows:

(2) The use of deadly force is justifiable under
this section if the actor believes that deadly force is
necessary to protect himself against death, serious bodily
in'ur , kidnapping, rape, or forcible sodomy.

(3) Except as otherwise provided in subsections (4)
and (5) of this section, a person employing protective force
may estimate the necessity thereof under the circumstances
as he believes them to be when the force is used without
retreating, surrendering possession, doing any other act
which he has no legal duty to do, or abstaining from any
lawful action.

(4) The use of force is not justifiable under this
section:

(a) To resist an arrest which the actor knows is

being made by a law enforcement officer,
although the arrest is unlawful; []

5) The use of deadly force is not justifiable under
rhia;@gtLLrif= _
(a) The actor, with the intent of causing death or

serious bodily injury, provoked the use of force

against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity

of using such force with complete safety by
retreating or by surrendering possession of a
thing to a person asserting a claim of right
thereto or by complying with a demand that he
abstain from any action which he has no duty to
take[.]

(Emphases added.)

“ Augustin provides no support for Petitioner’s position. 1n that
case, this court analyzed a jury instruction that, like the jury instruction
at issue here, was based on HawaiE Pattern Jury 1nstructions-- Criminal
(HAWJ1C) No. 7.02 on defense of others. Petitioner argues that “[e]ven in

(continued...)

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jury is supposed to look at the circumstances as the defendant
believed them to be, not the third party.” Petitioner takes
issue with paragraphs 5 and 6 of Jury 1nstruction No. 65,”
asserting that paragraphs 5 and 6 “to1d the jury that even if the
actor had a reasonably mistaken belief, it did not matter if the
third party himself or herself could not reasonably believe that
force was immediately necessary to protect himself or herself.”
2.
Respondent does not argue that the court's jury

instructions were not erroneous. 1nstead, Respondent argues that

”(...continued)
Augustin, [this court] recognized that the actor could have a reasonable but
mistaken belief.” 1n Au ustin, the defendant challenged a different part of
the jury instruction, which “advis[ed] the jury to consider [the defendant’s]
justification claims ‘from the viewpoint of a reasonable person in [the
defendant’s] position under the circumstances of which fthe defendant] was
aware or as (the defendant] reasonably believed them to be[.]’” 101 HawaiH
at 127, 63 P.3d at 1097 (emphasis added). A majority of this court upheld
that statement, because it would be “error to judge the reasonableness of a
defendant's viewpoint based on circumstances ‘shown in the evidence’ but of
which the defendant is not ‘aware.’” 1gy 7

1n this case, Jury 1nstruction No. 65 contained language identical to
that challenged above in Augustin. Paragraph 4 stated that “[t]he
reasonableness of the Defendant's belief that the use of such protective force
was immediately necessary shall be determined from the viewpoint of a
reasonable person in the Defendant's position under the circumstances of which
the Defendant was aware or as the Defendant reasonably believed them to be.”
(Emphasis added.) Thus, as in Augustin, paragraph 4 indicated to the jury
that Petitioner “could have a reasonable but mistaken belief.”

” As noted above, paragraphs 5 and 6 stated as follows:

[5] The third person would have been justified in
using force upon or toward [Officer Gaspar] if he or she
reasonably believed that such force was immediately
necessary to protect himself or herself on the present
occasion against the use of unlawful force by [Officer
Gaspar].

[6] The third person would have been justified in
using deadly force upon or toward [Officer Gaspar] if he or
she reasonably believed that deadly force was immediately
necessary to protect himself or herself on the present
occasion against death, serious bodily injury, or
kidnapping.

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“there is no ‘reasonable possibility that the error contributed
to [Petitioner's] conviction[s]’ for the murder of Officer Gaspar
(first trial), the assault of Officer Sung (second trial), or the
assault of Paikai (first trial)[.]”
3.

The 1CA held that paragraph 3” of Jury 1nstruction No.
65 “makes clear that the jury must evaluate the issue ‘[u]nder
the circumstances as the Defendant reasonably believed them to
be,’ and paragraph 4 . . . further discusses how to assess the
reasonableness of the defendant's belief.” Mg;k, 120 Hawafi at
524, 210 P.3d at 47. According to the 1CA, “[v]iewed in the
context of the entire instruction, paragraphs 5 and 6 did not

improperly suggest that the jury should decide whether the third

party was in fact justified in using force or deadly force.” 1d.

(footnote omitted). 1nstead, the 1CA concluded that “they
provided the jury with the underlying principles to evaluate the
reasonableness of the defendant's belief that the third party
would be so justified.” lgp Thus, the 1CA held that
Petitioner’s argument as to the jury instructions regarding the
defense of others was “without merit.” 1gp
C.
1.
This court has stated that “‘[w]hen jury instructions

or the omission thereof are at issue on appeal, the standard of

2° ee discussion infra.

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review is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading[.]’” State v. Gomes, 93 HawaiU_13,
l8, 995 P.2d 314, 319 (2000) (quoting State v. Kinnane, 79
Hawafi 46, 49, 897 P.2d 973, 976 (l995)). 1n this connection,
“[e]rroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial.” State v.
Aganon, 97 Hawai‘i 299, 302, 36 P.3d 1269, 1272 (2001) (internal
quotation marks and citation omitted). However, “jury
instructions to which no objection has been made at trial will be
reviewed only for plain error.”` State v. Sawyer, 88 HawaiT_325,
330, 966 P.2d 637, 642 (1998) (citing State v. Pinero, 75 Haw.
282, 292, 859 P.2d 1369, 1374 (1993)). 1n this case, Petitioner
did not object to the jury instructions he challenges on appeal,
and thus, the jury instructions are reviewed for plain error.
2.

As pointed out by the 1CA, Jury 1nstruction No. 65 was
substantively identical to HawaFi Pattern Jury 1nstructions--
Criminal (HAWJ1C) No. 7.02 on defense of others. However,
appellate courts are not bound by pattern jury instructions.
State v. Nupeiset, 90 Hawafi 175, 182 n.9, 977 P.2d 183, 190 n.9
(App. 1999). 1n order to determine whether Jury 1nstruction No.

65 was erroneous, it “must be examined in the context of the

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justification defenses[”] of the use of force in the defense of
others and the use of force in the defense of oneself.” 1d. at

179-80, 977 P.2d at 187-88 (footnote altered). The justification

Adefense of the “[u]se of force for the protection of other

persons” is codified in HRS § 703-305, which provides in relevant

part as follows:

(1) Subject to the provisions of this section and of
section 703-310,["] the use of force upon or toward the
person of another is justifiable to protect a third person
when:

(a) Under the circumstances as the actor believes

them to be, the person whom the actor seeks to
protect would be justified in using such

protective'force; and

(b) The actor believes that the actor's intervention
is necessary for the protection of the other
person.

(2) Notwithstanding subsection (l):

(a) When the actor would be obliged under section

703-304 to retreat, to surrender the possession
of a thing, or to comply with a demand before
using force in self-protection, the actor is not
obliged to do so before using force for the
protection of another person, unless the actor
knows that the actor can thereby secure the
complete safety of such other person; and

(b) When the person whom the actor seeks to protect
would be obliged under section 703-304 to
retreat, to surrender the possession of a thing
or to comply with a demand if the person knew
that the person could obtain complete safety by
so doing, the actor is obliged to try to cause
the person to do so before using force in the
person's protection if the actor knows that the
actor can obtain the other's complete safety in

that way[.]
(Emphases added.)
“ Nupeiset pointed out that “HRS § 703-301(1) (1993) provides, ‘1n

any prosecution for an offense, justification, as defined in sections 703-302
through 703-309, is a defense.’” 90 HawaiH at 180 n.3, 977 P.2d at 188 n.3.

" The parties have not argued that HRS § 703-310, which limits the

defense of others where the defendant has a reckless or negligent belief or
engages in reckless or negligent conduct, is at issue in this case.

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The commentary to HRS § 703-305 states that this
section “permits a person to use force to protect another person

when the actor believes the other person would have been

justified in using force to protect himself and he believes that

his intervention is necessary to protect the other person.””

(Emphasis added.) 1n the context of the use-of-force defenses,
“‘[b]elieves’ means reasonably believes[.]” HRS § 703-300
(1993). 1n order for “the other person [to] have been justified
in using force to protect himself,” the following requirements

set forth in HRS § 703-304 regarding self-protection would apply:

(l) Subject to the provisions of this section and of
section 703-308,[“] the use of force upon or toward another
person is justifiable when the actor believes that such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by the other
person on the present occasion.

_(2) The use of deadly force is justifiable under this
section if the actor believes that deadly force is necessary
to protect himself against death, serious bodily injury,
kidnapping, rape, or forcible sodomy.

(Emphases added.) Thus, under HRS § 703-305, in order to use
force to protect a third person, the actor must have a reasonable
belief that, as to the third person, (1) “force is immediately
necessary for the purpose of protecting himself against the use

of unlawful force by the other person on the present occasion,”

” Additionally, the commentary to HRS § 703-305 states that “[t]his
formulation covers situations in which the other's infirmity, infancy, or
other physical condition makes him especially unable to protect himself or
susceptible to injury, even though the actor, in a similar predicament, might
not himself have been justified in using force.” (Emphasis added.)

“ HRS § 703-308, which justifies the use of force upon another
person if the force is enough to prevent, inter alia, suicide or the
commission of a crime, is not relevant to this case.

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or (2) “deadly force is necessary to protect himself against
death, serious bodily injury, kidnapping, rape, or forcible
sodomy.”
This conclusion is supported by the Model Penal 0ode

and Commentaries (Official Draft and Revised Comments 1985)
[hereinafter MPC] § 3.05. lt has been observed that “HRS

§ 703-305 is nearly identical to [the MPC].” Nu eiset, 90
Hawafi at 180, 977 P.2d at 188. The commentary to the MPC

states in pertinent part that

given the circumstances as the actor believes them to be,
the third person must legally be justified in using such
protective force. Thus, if the third person were resisting
an arrest by a known police officer, or if he were
attempting to effect an arrest with excessive force, pp
would have no defense, and, if the circumstances were known

to the actor, the actor would have no defense either.

MPC § 3.05 cmt. 1 at 64 (emphases added). 1n other words, if the
actor knew that the third person could not reasonably believe
that the use of force was justified, the actor could not use
force in the protection of the third person.

D.

As stated before, Petitioner argued that paragraphs 5
and 6 “told the jury that even if the actor had a reasonably
mistaken belief, it did not matter if the third party himself or
herself could not reasonably believe that force was immediately
necessary to protect himself or herself.” Petitioner appears to
argue, as he did in his Opening Brief, that “the jury should not

be deciding whether the third person had the right to defend

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[himself]. The focus should have been on whether the defendant
reasonably believed [he or she] had that right.”

Paragraph 5, related to the use of force, and paragraph
6, related to the use of deadly force, did address the reasonable
belief of the third person, rather than the defendant. However,
these paragraphs must be read in conjunction with paragraph 3 of
Jury 1nstruction No. 65.” Paragraph 3 stated that “[t]he use of
force upon or toward another person is justified to protect a
third person when . . . [ulnder the circumstances as the
Defendant reasonably believed them to be, the third person would

have been justified in using such force to protect himself or

herself[.]” (Emphasis added.) Paragraph 3 makes clear that the

focus of the jury should be upon “the circumstances as the
Defendant reasonably believed them to be[.]” Viewing paragraphs
5 and 6 in the context of paragraph 3, Jury 1nstruction No. 65
correctly stated that the defendant must have reasonably believed
that the third person was justified in believing that “force was
immediately necessary to protect himself or herself” or “that
deadly force was immediately necessary to protect himself or

herself[.]” Thus, paragraphs 5 and 6, taken in conjunction with

” , The court instructed the jury to view the instructions as a whole,
stating~that,

[y]ou must consider all of the instructions as a whole and
consider each instruction in light of all of the others. Do
not single out any word, phrase, sentence or instruction and
ignore the others. Do not give greater emphasis to any
word, phrase, sentence or instruction simply because it is
repeated in these instructions.

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paragraph 3 of Jury 1nstruction No. 65, was not an incorrect
statement of the law.
IV.
A.
1.

Petitioner also argues that paragraph 7 of Jury
1nstruction No. 65 was erroneous, apparently for two reasons.
First, Petitioner claims that (1) “[b]y repeatedly using the word
‘Defendant,' the focus is on the defendant, not the third

party[,]” and (2) “[t]he jury might have thought [Petitioner]

could have either retreated or used non-deadly force[,]” but “the

‘circumstances would be different if he were also looking out for

his pregnant girlfriend or his young daughter who was sick with
the flu.” Second, Petitioner argues that (1) because “[t]he
prosecution essentially argued that it was [Petitioner] who
provoked the use of force by reaching for his gun first[, t]he
court's confusing instruction would have led the jury to
incorrectly conclude that this prohibited [Petitioner’s] Defense
of Others defense[,]” and (2) “[b]ased on what had happened
before [with Piko and Paikai], [Petitioner] had every reason to
believe that [Daughter] or [Martin] would get seriously injured
or kidnapped.” 5
2.
As to paragraph 7 of Jury 1nstruction No. 65, the 1CA

in effect divided the paragraph into two parts and analyzed each

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part separately. As to “the first part of paragraph 7 of the
instruction, [(clause (a))] which provided that the use of deadly
force is not justified ‘if the Defendant, with the intent of
causing death or serious bodily injury, provoked the use of force

against himself in the same encounter[,]’” the.1CA “agree[d] with

1Petitioner] that this part of the instruction does appear to mix

principles of self-defense with those of defense of others in a
way that could be confusing to a jury.” Ma;k, 120 Hawafi at

527, 210 P.3d at 50 (emphasis added). H@wev@r, the icA held that
the error was harmless because “[t]here [was] nothing in the
record to suggest that fPetitioner], with the intent of causing
death or serious bodily injury, did anything in [regard to Mark 1
or Mark 11] to provoke the use of force against himself.” lgp
The 1CA concluded that “[t]his forecloses the possibility that
the jury would have denied the defense of others justification to

[Petitioner] based on the erroneous part of the instruction.”

1n regard to the second part of paragraph 7, (clause
(b)), the 1CA held that it was not erroneous because,

[r]ead in context of the entire instruction, the “necessity”
for using force in paragraph 7 refers to the threat to the
third party, and the instruction thus advises the jury that
the defendant must retreat only if he or she can avoid “the ‘
necessity of such force with complete safety” of that third
party,

1d. at 526, 210 P.3d at 49 (emphasis added). The 1CA also

concluded that even if clause (b) were erroneous, the error would

ybe harmless beyond a reasonable doubt because (l) in regard to

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Mark 1, (a) there was no evidence to “support a reasonable belief
on [Petitioner’s] part that Martin was justified in using deadly
force against Piko, let alone Paikai[,]” and (b) “the jury was
also instructed on self-defense with regard to the counts at
issue here, and necessarily rejected that defense in finding
[Petitioner] guilty[,]” and, therefore, “it is not reasonably
possible that a jury would find that [Petitioner] lacked
justification to use deadly force to protect himself, but would
find that he was justified in using it to protect

Martin[,]” and (2) in regard to Mark 11, (a) “th[e] evidence
foreclosed the possibility that [Petitioner] could have retreated
in`any event[,]” (b) “the jury was also instructed on
self-defense with regard to the counts at issue here, and
necessarily rejected that defense in finding [Petitioner]
guilty[,]” and, therefore, “it is not reasonably possible that a
jury would find that fPetitionerl lacked justification to use
deadly force to protect himself, but would find that he was
justified in using it to protect Daughter and Martin[,]”

(c) defense counsel conceded that the use of deadly force by
Daughter at Baskin-Robbins would have been excessive, and

(d) Petitioner could not “have reasonably believed that there was
a threat to Martin at [] Baskin-Robbins that would have justified
the use of deadly force by her.” 1gp at 526-27, 210 P.3d at 49-

50 (emphases added).

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B.
To reiterate, paragraph 7 of Jury 1nstruction No. 65

stated that

[t]he use of deadly force is not justifiable [(a)] if the
Defendant, with the intent of causing death or serious
bodily injury, provoked the use of force against himself in
the same encounter, or [(b)] if the Defendant knows that he
can avoid the necessity of using such force with complete

safety by retreating.

(Emphases added.) Paragraph 7 is identical to language contained
in HAWJ1C 7.02, which sets forth the pattern jury instruction of
defense-of-others. The commentary to HAWJ1C 7.02 does not
indicate why such language is included in the instruction.
However, as noted above, “[t]he instructions . . . are not
binding on the Hawafi appellate courts.” Nupeiset, 90 Hawafi at
182, 977 P.2d at 190 (citation omitted).

1n this case, contrary to the 1CA's conclusion that
“the ‘necessity’ for using force in paragraph 7 refers to the
threat to the third party,” Mgrk, 120 Hawafi at 526, 210 P.3d at
49, the plain language of paragraph 7 is substantively identical
to HRS § 703-304(5), dealing with self-protection, That HRS

section states in relevant part that`

[t]he use of deadly force is not justifiable under this

section if . . . [t]he actor, with the intent of causing
death or serious bodily injury, provoked the use of force
against himself in the same encounter; or . . . [t]he actor

knows that he can avoid the necessity of using such force
with complete safety by retreating[.]

Additionally, as to clause (a) of paragraph 7, nothing in HRS
§ 703-305 relating to the protection of other persons involves

the concept of provocation on the part of the defendant. Thus,

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contrary to the 1CA’s “necessity” reasoning, clause (a) is a
clearly erroneous statement of the law.

As to clause (b), the manner in which HRS § 703-305
relating to defense of others deals with retreat is fundamentally
different from the language set forth in clause (b) of paragraph
7. HRS § 703-305(2)(g) states that “[wlhen the actor would be
obliged under section 703-304 to retreat,[”] . . . the actor is
not obliged to do so before using force for the protection of
another person, unless the actor knows that the actor can thereby
secure the complete safety of such other person[.]” (Emphases
added.) On the other hand, HRS § 703-305(2)(p) deals with the

obligation of the actor if the third person is obliged to

retreat:

When the person whom the actor seeks to protect would be
obliged under section 703-304 to retreat, . . . if the
person knew that the person could obtain complete safety by
so doing, the actor is obliged to try to cause the person to
do so before using force in the person's protection if the
actor knows that the actor can obtain the other's complete
safety in that way[.]

(Emphasis added.) As noted before, the language of clause (b) of
paragraph 7 relates to self-protection and, thus, pply addresses
retreat in the context of self-protection. Thus, clause (b) of
paragraph 7 bonflicts with the retreat provision relating to

defense of others in HRS § 703-305. Accordingly, clause (b) of

“ Under HRS § 703-304(5)(b) related to self-protection, the actor
would be obliged to retreat if “[t]he actor knows that he can avoid the
necessity of using [deadly force] with complete safety by retreating or by
surrendering possession of a thing to a person asserting a claim of right
thereto or by complying with a demand that he abstain from any action[.]”

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paragraph 7 was also erroneous.

As said before, there is no explanation in the
commentary to HAWJ1C 7.02 as to why the language in paragraph 7
should be included in an instruction on the justification of
defense of others. Paragraph 7 obviously relates to the
justification of self-defense, and thus would appear to have no
place in an instruction related to the defense of others. HRS
§ 703-305 says nothing about provocation, and the concept of
retreat set forth in HRS § 703-305(2) is entirely different from
the concept of retreat as discussed in clause (b) of paragraph 7.

The 1CA, despite concluding that clause (a) of
paragraph 7 “appear[ed] to mix principles of self-defense with
those of defense of others in a way that would be confusing to a
jury,” Mg;k, 120 Hawafi at 527, 210 P.3d at 50, did not address
the inclusion of paragraph 7 in the HAWJ1C. Moreover, the 1CA
concluded that clause (b) of paragraph 7 was not erroneous,
because it “referred to the threat to the third partyL and the
instruction advises the jury that the defendant must retreat only
if he or she can avoid ‘the necessity of such force with complete
safety' of that third party.” 1gp at 526, 210 P.3d at 49,
1nasmuch as paragraph 7 is erroneous, the 1CA's decision is
incorrect. Thus, contrary to the 1CA’s decision, we hold that
the language in paragraph 7 should not be included in HAWJ1C

7.02.

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C.

Because the giving of paragraph 7 rendered Jury
1nstruction No. 65 erroneous, it must be determined whether such
error was harmless. §pp Nupeiset, 90 HawaFi at 184, 977 P.2d at
192 (stating that while the challenged jury instruction was “an
incomplete statement of the law, we believe any error in giving
it was harmless”). Preliminarily, as noted above, the 1CA held
that “[e]ven if we were to find that [paragraph 7] was a
potentially misleading statement of the law, the error would be

harmless beyond a reasonable doubt” because

the jury was also instructed on self-defense with regard to
the counts at issue here, and necessarily rejected that
defense in finding [Petitioner] guilty fof the attempted
assault of Paikai and the second degree murder of Officer
Gaspar]. Given the evidence at trial, it is not reasonably
possible that a jury would find that [Petitioner] lacked
justification to use deadly force to protect himself, but
would find that he was justified in using it to protect
Daughter and Martin (at [] Baskin-Robbins) or Martin (at the
church parking lot).

Mark, 120 HawaiYi at 526, 210 P.3d at 49 (emphases added).

However, as Petitioner stated, “‘[a]n intervenor’s
right to react is not strictly coterminous with a participant's
right to self-defense.’” (Quoting Alexander v. State, 447 A.2d
880, 887 (Md. Ct. Spec. App. 1982).) This statement is supported
by the commentary to HRS § 703-305, which, as noted §pprg at note
23, states that “[t]his formulation covers situations in which
the other's infirmity, infancy, or other physical condition makes
him especially unable to protect himself or susceptible to
injury, even though the actor, in a similar predicament, might
not himself have been justified in using force.” (Emphasis

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added.) As the commentary makes evident, it is possible that a
defendant could be justified in using force to protect another
person, even if the defendant himself or herself was not
justified in using force for self protection, Therefore,
contrary to the 1CA’s conclusion, it does not follow that a
jury's rejection of a defendant's defense of self-defense, as in
this case, would necessarily result in its rejection of a defense
of defense of others, and, accordingly, the 1CA also erred in
this aspect of its reasoning.
D.
1.

1n regard to clause (a) of paragraph 7 as it relates to
provocation, the following evidence with respect to Mark 1 was
adduced at Petitioner’s first trial.” As discussed su ra,
Petitioner testified that he was being approached from opposite
sides by Piko and Paikai, when Piko “whacked” Petitioner’s car
with his hand. Piko then turned to Petitioner and asked
Petitioner what he would do if Piko and Paikai took the camera
from him. After giving the camera to Piko, Piko turned to
Petitioner and stated that he and\Paikai were “just going to take
everything,” which Petitioner took to mean that he and Martin
were being robbed. Petitioner thought Piko and Paikai were going

ll

to “trap [him] . . . and beat [him] up.

" Petitioner does not point to any difference in the evidence
adduced at his first and second trials related to the provocation of force on

his part.

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Paikai testified that while Petitioner and Piko were
having a conversation, “the discussion got heated, and 1 guess
the discussion was over where the property was going to go at the
time.” Paikai stated that next, “[a]ll 1 seen was [Petitioner]
give him the box and pull a gun.” According to Paikai, he saw
Petitioner making “gestures” “like just before a fight is about
to start[.]” He saw Piko “raising [his] hands out with [his]
palms open,” as if Piko was saying “what or something.” Paikai
related that Petitioner pulled the handgun and pointed it
“[r]ight at [Piko’s] head” “[a]s soon as he put [the box] in
[Piko’s] hand.” Paikai saw Piko “lift[] up the box[,]” at which
point Petitioner “[f]ired a round[.]” Piko then turned and ran,
while Petitioner “pull[ed] off maybe one or two more rounds[.]”

Paikai stated that after Piko ran away, “[Petitioner]
turned his sights on [Paikai].” Paikai stated that Petitioner
aimed the gun at him, “and 1 ran closer to [Petitioner’s] car,
you know, making it a little harder for him to shoot me. And 1
think he pulled off two more shots, and then that’s when 1 got
one in the leg[.]”

Piko gave the following testimony about what happened

between him and Petitioner during the exchange of the box:

[Petitioner] started explaining to me about something, so 1
told him what if 1 just take this from you, what you goin'

gpi . . . That’s when he told me, you know what, here. He

went hand the camera to me, and when 1 went grab ‘em, he

just went pull out his gun,

(Emphasis added.) According to Piko, “[a]fter that, all 1 heard

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was pah, and 1 just - 1 was gone.” Piko testified that he did
not “touch [Petitioner] that night” or “verbally threaten him
with words[.]” He stated that he did not “do anything to
physically threaten [Petitioner],” and that the discussion he was
having with Petitioner “wasn't even [an] argument.”
2.

HRS § 703-300 defines “force” as “any bodily impact,
restraint, or confinement, or the threat thereof.” (Emphasis
added.) As to Mark 1, based on Petitioner’s testimony discussed
above, it would appear that he felt threatened by force from Piko
and Paikai. However, nothing in Petitioner’s testimony indicates
that he provoked such a threat. To “provoke” means “to incite to
anger” or “to bring about deliberately[.]” Webster’s Third New
1nt’l Dictionary 1827 (1961). Petitioner’s testimony indicates
that in speaking to Piko and giving him the box, Petitioner did
not provoke the threat of the use of force against himself.

Thus, had the jury believed Petitioner’s testimony, the effect of
clause (a) of paragraph 7 would have been harmless, because no
provocation occurred on Petitioner’s part to invite the threat of
force. 1f the jury believed Petitioner’s testimony, the
limitation in clause (a) of paragraph 7 would have been harmless
error, because Petitioner’s testimony did not support a finding
that he had provoked the threat of force.

As to Paikai’s testimony, nothing in his testimony

indicated that he used force or the threat of force against

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Petitioner in Mark 1. Paikai did not testify that he heard the
actual conversation between Petitioner and Piko, but only that it
appeared to get “heated.” Piko testified that he “told
[Petitioner, W]hat if 1 just take this from you, what you goin'
do?”

Piko’s foregoing statement could be interpreted as the
threat of force, but neither Piko nor Paikai testified that such
force was provoked by Petitioner. 1nstead, Piko testified that
“[Petitioner] started explaining to me about something,” at which
point he asked Petitioner what Petitioner would do if Piko took
the box from him. The fact that Petitioner was “explaining
something” cannot be interpreted as provoking force by Piko or
Paikai. Similarly, Paikai’s testimony that Petitioner was making
“gestures” is not an indication that Petitioner provoked the use
of force by Piko or Paikai. Thus, had the jury believed Piko’s
and Paikai’s testimony, the error in clause (a) of paragraph 7
relating to the provocation of Petitioner would have been
harmless, because their testimony did not support a finding that
Petitioner had provoked the use of force.

3.

Turning to clause (b) of paragraph 7, that clause
stated that “[t]he use of deadly force is not justifiable
if the Defendant knows that he can avoid the necessity of using
such force with complete safety by retreating.” (Emphasis

added.) As noted before, the language in this clause pertains

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only to self protection, HRS § 703-300 defines “deadly force” as

follows:

I

“Deadly force” means force which the actor uses with the
intent of causing or which the actor knows to create a
substantial risk of causing death or serious bodily harms
1ntentionally firing a firearm in the direction of another
person or in the direction which another person is believed
to be constitutes deadly force. A threat to cause death or
serious bodily injury, by the production of a weapon or
otherwise, so long as the actor's intent is limited to
creating an apprehension that the actor will use deadly
force if necessary, does not constitute deadly force.

(Emphasis added.)

1t is undisputed that Petitioner “[i]ntentionally
fir[ed] a firearm in the direction of another person,” igp,
namely Piko and Paikai, and thus used deadly force, twice in the
Mark 1 incident. As to the use of deadly force in regard to
Pikop however, the jury was unable to reach a verdict. Thus,
Petitioner’s use of deadly force and Petitioner’s duty to retreat
in regard to Piko is not further discussed.”

1n regard to Paikai, it does not appear that any
witness testified directly as to whether Petitioner could have
retreated, and thus avoid the necessity of using deadly force
with complete safety. Petitioner stated that after Piko had run
off, he turned to look for Paikai, and saw him kneeling down at
the front of Petitioner’s car, Petitioner stated that he “[f]elt

like . . . [Paikai] might have a weapon or something[,]” and he

” As noted su ra, the charges related to Piko were ultimately
dismissed after the jury was again unable to reach a verdict on them in the
second trial.

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“was real scared[.]” Petitioner then reached over the car and
shot Paikai in the leg in order to “stop him.”

Nothing in this testimony indicates that Petitioner
knew that he could avoid the necessity of using deadly force by
retreating. According to Petitioner, he saw Paikai “kneeling
down, and . . . coming around [Petitioner's] car towards
[Petitioner].” Petitioner thought Paikai might have a weapon,
and stated that he shot Paikai to “stop him.” The fact that
Petitioner felt that he had to “stop” Paikai indicates that
Petitioner did not believe that he could have retreated with
complete safety. Petitioner did not testify as to any knowledge
he may have had in regard to avoiding the necessity of using
force. Thus, there was no evidence adduced at trial that, as
stated in clause (b), Petitioner knew he could have retreated
with complete safety, thereby “avoid[ing] the necessity of using
such force[.]” HRS § 703-304(5)(b). As a result, clause (b) as
it relates to Mark 1 could not be applied and, hence, was also
harmless error.

E.
1.

1n regard to clause (a) of paragraph 7 of 1nstruction
No. 65 as it relates to Mark 11, as discussed su ra, Petitioner
testified that he did not see Officer Gaspar or Officer Sung
before they grabbed him, and thus, nothing in Petitioner’s

testimony would indicate that he provoked the use of force

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against himself. However, as noted before, Officer Sung
testified that after showing Petitioner his badge, he saw
Petitioner “reaching for something, and from my police training
and experiences, usually when they reach for something in their
pocket, usually it means weapon, so 1’m telling him pull your
hands up, police, and then 1 kept on approaching [Petitioner].”
Officer Sung stated that he grabbed for Petitioner’s right hand
in order to stop Petitioner from “[r]eaching for any kind of
weapons, possibly gun or possibly knife, possibly harming other
people.”

This testimony thus contradicts the 1CA's conclusion
that “[t]here is nothing in the record to suggest that
[Petitioner], with the intent of causing death or serious bodily
injury, did anything in [] Baskin-Robbins to provoke the use of
force against himself.” Mg;k, 120 Hawafi at 527, 210 P.3d at 50
(emphasis added). Officer Sung testified that Petitioner reached
for his pocket, which, in Officer Sung’s experience, usually
meant that the person was reaching for a weapon, Officer Sung
testified that he grabbed for Petitioner’s hand, i.e., used force
on Petitioner, in order to prevent Petitioner from reaching for a
weapon, Since weapons are generally used for the purpose of
causing death or serious bodily injury, Officer Sung's testimony
is evidence that Petitioner provoked the use of force against

himself.

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Because clause (a) of paragraph 7 stated that the

protection of other persons defense was unavailable to Petitioner

if he provoked the use of force, clause (a) as it related to Mark

_1 was potentially harmful. Based on the evidence, the jury
could have be1ieved, following the direction in clause (a) of
paragraph 7, that Petitioner provoked the use of force against
himself, thus disgualifying him from claiming the defense of
others defense. 1nasmuch as paragraph 7, clause (a), of Jury
1nstruction No. 65 was erroneous, the jury could have reached a
decision that was legally infirm.

2.

As to clause (b) of paragraph 7, it is clear from the
testimony of all the witnesses that Petitioner did not know he
could have retreated with complete safety in Baskin Robbins. To
retreat means “to draw back” or “withdraw.” Webster’s Third New
1nt’l Dictionary at 1940. But prior to Petitioner’s use of
force, he was engaged in a struggle with the officers, who,
according to Officer Sung, “grabb[ed]” and “restrain[ed]”
Petitioner. Petitioner testified that the men were “grabbing”
him, and “holding onto [him],” and that while the first two men
were grabbing him, a third man came up behind Petitioner and
grabbed him in a “bear hug.” This testimony indicates that
Petitioner could not have retreated at all, i.e., “withdrawn,”

because he was being “restrain[ed]” by the officers at the time.

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Clause (b) of paragraph 7 instructed the jury that if
Petitioner knew that he could have retreated with complete
safety, the defense of others defense was unavailable to him.
However, as discussed above, there was no evidence adduced at
trial that Petitioner knew he could have retreated with complete
safety, thereby “avoid[ing] the necessity of using such force[.]”
1n fact, the evidence indicated that Petitioner was unable to
retreat because he was being held by the officers. 1nasmuch as
there was no evidence that Petitioner knew he could have
retreated with complete safety, there was no evidence on which
the jury could not have found that the limitation in clause (b)
applied to Petitioner. See State v. Klinge, 92 HawaiH_577, 592,
994 P.2d 509, 524 (2000) (“As a rule, juries are presumed to
follow all of the trial court's instructions.” (Quoting State v.
Knight, 80 Hawai/i 318, 327, 909 P.2d 1133, 1142 (1996).))
(Ellipsis omitted.) Thus, clause (b) as it relates to Mark 11
was harmless error.

3.

As noted §ppra, clause (a) of paragraph 7 relating to
provocation by Petitioner was erroneous and, thus, potentially
harmful error with respect to Mark 11. Nevertheless, it does not
appear there was any evidence upon which an instruction as to the
defense of others, in this case Martin and Daughter, could be
based. 1n order to establish whether Petitioner’s substantial

rights were affected, it must be determined “whether, from the

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objective point of view of a reasonable person, the defendant's
use of force was necessary for the protection of a person who
would be justified in using such force, under the circumstances
as the defendant subjectively believes them to be.” State v.
§gygp, 81 Hawai‘i 142, 145, 913 P.2d 553, 556 (App. 1996). As to
the counts in Mark 11 that Petitioner was charged with in his
first trial, only two related to Petitioner’s use of force, and
the jury only returned a conviction on Count 1, regarding thej
second degree murder of Officer Gaspar.

Any “protective force” Petitioner may have used in that
count amounted to deadly force, because it involved the shooting
of Officer Gaspar. §pp HRS § 703-300 (“1ntentionally firing a
firearm in the direction of another person . . . constitutes
deadly force.”) j1n his Application, Petitioner argues that he
“had every reason to believe that [Daughter] or [Martin] would

get seriously injured or kidnapped.” Thus, it must be determined

whether, under the circumstances as Petitioner must reasonably

believe them to be, Martin or Daughter would have been justified

in using deadly force.

Petitioner points to the following testimony in support

lof his claim that he reasonably believed that Martin or Daughter

would have been justified in using deadly force: (l) Petitioner
testified that since the incident in Mark 1 “he had been hearing
threats against himself and Martin,” (2) “[o]ne of the reasons

why he did not turn himself in right away was because he was

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afraid of what would happen to Martin if she were left alone,”

(3) Petitioner “testified that, when he and Martin were being

`chased by Piko, he thought he saw one of the men holding a gun,”

and (4) “[t]he last time he saw Martin, she was by his side as he
reached to put the necklace on [Daughter, and, i]n his mind,
these were three large men, presumably friends of Piko and
Paikai, who had gang tackled him without provocation.”

Neither Martin nor Daughter testified at Petitioner’s
trial. Several witnesses in Baskin Robbins at the time of the

struggle did testify. For example, Sennett, the mother of

=Daughter, testified that Petitioner was “not even a foot away

from [Daughter]” when Officer Gaspar and Officer Sung entered
Baskin Robbins. According to Sennett, Petitioner “started to

back up a little[,]” and then

[t]hey walked up to him and he still had the necklace in his,
hand, and as they were reaching for him, he dropped the
necklace, and they said, “Shane Mark,” . . . then he bent
down and started like going backwards, and the police
officers were trying to get him to stand completely up, and

he kept going and backed into the counter.

Kortz, Sennett’s boyfriend, testified that as
Petitioner was attempting to place the necklace around Daughter’s
neck, “two gentlemen came walking in from behind me and walked
past me and past [Sennett] towards [Petitioner], and they made a
comment to him or said something to him. [Petitioner] started to
back up. when they - the two gentlemen started to grab for

[Petitioner] and started to struggle[.]”

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As discussed above, Petitioner testified that the first
time he noticed Officer Gaspar and Officer Sung was when they
attempted to grab him. Officer Sung testified that after he and
Officer Gaspar had shown Petitioner their badges, he saw
Petitioner reaching for something in his pocket, and immediately
reached out for Petitioner. Petitioner points to no testimony by
any of the witnesses at Baskin Robbins indicating that the
officers used force or the threat of force against Martin or
Daughter. Although Sennett testified that Petitioner was near
Daughter at the time the officers grabbed him, the testimony
indicates that the officers grabbed directly for Petitioner, and
made no threats or attempts to grab Martin or Daughter.

As noted before, Petitioner testified that he and
Martin had been “hearing threats” and that he was “afraid of what
would happen to Martin if she were left alone.” However,
Petitioner’s own testimony indicates that under the circumstances
known to him, the men were grabbing for him, and not for Martin
or Daughter. As Petitioner stated he “had a feeling” that the
men were “going to pull me out of the store” to “[t]ake me
someplace and kill me.” Nothing in Petitioner’s testimony or in
the testimony of the other witnesses would support a reasonable
belief that it was necessary for Petitioner to use deadly force
in order to protect Martin or Daughter.

Furthermore, there could not have been a reasonable

belief that either Martin or Daughter would have been justified

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in using deadly force. Although Petitioner did testify that he
was “pretty scared” because Daughter could have gotten hurt, it
does not appear that Petitioner offered testimony in this regard
as to Martin. As discussed above, the witnesses’ testimony
indicated that the officers grabbed Petitioner, focusing their
attention on him and no one else. At the settling of Jury
1nstruction No. 65, Loy, Petitioner’s counsel, herself stated, “1
don't think [Daughter] would have the right to use deadly force.
Deadly force is a greater degree of force than is justified.”
Petitioner would not have been justified in using force that
neither Martin nor Daughter were justified in using, “as the
defense applies only when the third person being defended could
himself or herself legitimately employ force.” Q§ygp, 81 HawaFi
at 147, 913 P.2d at 558.

Because under the circumstances as Petitioner believed
them to be, a reasonable person would not believe that Martin or
Daughter would be justified in using deadly force, Petitioner was
not justified in using deadly force, purportedly in their
defense. Hence, Petitioner was not prejudiced by the error in
clause (a) of paragraph 7 in Jury 1nstruction No. 65 with respect
to Mark 11. See id. (holding that because the defendant could
not have reasonably believed that the third person would have
been justified in using force, the trial court's finding of guilt
was supported by substantial evidence). Although “a defendant is

entitled to an instruction on every defense or theory of defense

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having any support in the evidence,” State v. Cabrera, 90 Hawafi
359, 370, 978 P.2d 797, 808 (1999) (citation omitted), based on
the evidence discussed abovey there was no rational basis on
which the jury could conclude that Petitioner was justified in
using force for the protection of others. See State v. Kupihea,
98 Hawafi 196, 206, 46 P.3d 498, 508 (2002) (holding that trial
court was not required to include all statutory definitions in
its instructions but, rather, “should refer only to those
[definitionsl having a rational basis in the evidence adduced at
trial and not otherwise excludable”).

Consequently, viewing the evidence as a whole, there is
no reasonable possibility that the inclusion of paragraph 7,
clause (a) relating to provocation, in Jury 1nstruction No. 65
contributed to Petitioner’s conviction. See State v. Arceo, 84
HawaiH.1, 12, 928 P.2d 843, 854 (1996) (“Error is not to be
viewed in isolation and considered purely in the abstract. 1t
must be examined in the light of the entire proceedings and
[i]n that context, the real question becomes whether there is a
reasonable possibility that error might have contributed to
conviction.”) (Emphasis added.) (Citation omitted.) Based on
the entire proceedings, clause (a) of paragraph 7 in Jury
1nstruction No. 65 as it relates to Mark 11 was harmless error.

F.
1n Petitioner’s second trial, the court's instruction

on defense of others was identical to Jury 1nstruction No. 65,

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except that the language in paragraph 7 related to retreat had
been altered to track the language related to retreat in HRS §
703-305(2). However, the instruction retained the language on

provocation as follows:

The use of deadly force is not justifiable if the
defendant, with the intent of causing death or serious

bodily injury, provoked the use of force against himself in
the same encounter.

When, under the law of justification based upon
self-defense, the defendant would’ve been obliged to retreat
or comply with a demand before using deadly force, he is not
obliged to do so before using deadly force to protect
another person unless he knows that he can thereby secure
the complete safety of the third person.

When, under the law of justification based upon self-
defense, the person whom the defendant seeks to protect
would be obliged to retreat or comply with a demand before
using deadly force if that person knew that he or she could
obtain complete safety by doing so, the defendant is obliged
to try to cause the person to do so before using deadly
force in the person's protection if the defendant knows that
he can obtain the other's complete safety in that way.

(Emphases added.)

Petitioner does not claim that the language related to
retreat in the court's protection of others instruction in the
second trial was erroneous, and indeed, the 1CA stated that
“[Petitioner] appears to concede that this modified instruction
resolves his objection to the language regarding the duty to
retreat in paragraph 7 of the instructions given in the first
trial.” Mgrk, 120 Hawafi at 528, 210 P.3d at 51. Because the
language related to retreat in this instruction tracks the
language in HRS § 703-305(2), this portion of the instruction was
an accurate statement of the law.

However, the instruction continued to contain the same

erroneous language related to provocation by Petitioner as in

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clause (a) of paragraph 7 in Jury 1nstruction No. 65, The 1CA
“agree[d] with [Petitioner] on that point,” but held that the

error was harmless beyond a reasonable doubt because

[tlhe jury was instructed with regard to self-defense in the
second trial, and implicitly rejected that defense by
convicting Petitioner of the attempted first degree
assault of Officer Sung. Although there were some
differences in the evidence between the two trials,
nevertheless there was no evidence establishing that
[Petitioner] reasonably believed that Martin or Daughter
would have been justified in using deadly force to protect
themselves inside fl Baskin-Robbins.

1d. (footnote omitted). With this statement, the 1CA implied

that because the jury “implicitly rejected” the defense of self-
defense, the defense of others defense was therefore unavailable
to Petitioner. However, as discussed above, this conclusion by
the 1CA was wrong because the commentary to HRS § 703-305
specifically provides that a defendant may be justified in using
force to protect another person, even if the defendant himself or
herself was not justified in using force for self protection,

The only apparent difference in the evidence between
the two trials was that at his second trial, Petitioner testified
that he was “worried” about Martin in Baskin Robbins because she
was pregnant. Petitioner had not mentioned being “worried” about
Martin during his first trial. Petitioner’s testimony at his
second trial that he was “worried” about Martin does not alter
the conclusion reached above in regard to the court's instruction
on protection of others.

There was no evidence adduced at Petitioner’s second

trial that would have given rise to a reasonable belief that

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Martin would have been justified in using deadly force to protect
herself. The testimony in regard to the actions of the officers
was the same, in that they grabbed for Petitioner, and did not
threaten Martin or Daughter in any way. Therefore, as with
clause (a) of paragraph 7 in Jury 1nstruction No. 65, Petitioner
was not prejudiced by the language related to provocation in the
instruction on protection of others in his second trial.
G.

Related to Petitioner’s claim of erroneous jury
instructions, Petitioner also argues in a footnote in his
Application that “[i]n [his] Reply Brief, [Petitioner] raised an
additional issue regarding the [court’s] failure to give a
complete definition of Kidnapping. [Petitioner] would again
renew the request to consider this as plain error.” Petitioner
makes no further argument regarding this issue in his
Application.

1n his Reply Brief, Petitioner stated that, during his
first trial, he testified that he thought the men “were robbing
the Baskin Robbins store” and that, in his second trial, he
testified that “[t]hese guys go take my money.” Petitioner
stated that “theft of property from the person of another is a
Class C felony,” and HRS § 707-720 (1993) with respect to

kidnapping states that

[a] person commits the offense of kidnapping if the person
intentionally or knowingly restrains another person with
intent to: 1

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(c) Facilitate the commission of a felony or flight

thereafter;
(d) 1nflict bodily injury upon that person or
subject that person to a sexual offense; [or]
(e) Terrorize that person or a third person[.]

(Emphasis added.)

Petitioner stated that “[i]n his case, for both trials,

the court gave the following definition of kidnapping, which

covered only [HRS § 707-720(d) and HRS § 707-720(e)]: “‘A person

commits kidnapping if he intentionally or knowingly restrains
another person with intent to inflict bodily injury upon that
person or terrorize that person.’” Petitioner argued that the
court's instruction was plainly erroneous because the instruction
did not cover HRS § 707-720(c) relating to the commission of a
felony.
1t does not appear that the 1CA addressed Petitioner’s

argument regarding an allegedly erroneous definition of
kidnapping, nor did Respondent address this issue in its
memorandum in opposition. Petitioner did not object to the
court's kidnapping instruction at trial. Additionally,
Petitioner acknowledged in his Reply Brief that “[t]his specific
argument was not raised as a point of error in the opening
brief.” Thus, we are not obligated to address Petitioner’s
argument regarding the court's purportedly erroneous kidnapping
instruction. See 1n re Hawaiian Flour Mills, 1nc., 76 HawaiT.1,
14 n.5, 868 P.2d 419, 432 n.5 (1994) (holding that arguments

raised for the first time in the reply briefs on appeal were

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deemed waived) (citation omitted); Hawafi Rules of Appellate
Procedure Rule 28(d) (2005) (providing that “[t]he reply brief
shall be confined to matters presented in the answering brief”).
However, because Petitioner’s assertion relates to jury

instructions, whether the court's instruction was plain error is
briefly discussed. See State v. Nichols, 111 HawaFi 327, 335,
141 P.3d 974, 982 (2006) (holding that the plain error and
harmless error standards of review merge in the case of jury
instructions, because “the duty to properly instruct the jury
lies with the trial court[,]” and, thus, “the same standard of
review is to be applied both in cases in which a timely objection
to a jury instruction was made and those in which no timely
objection was made”). 1n the case of jury instructions, “once
instructional error is demonstrated, we will vacate, without
regard to whether timely objection was made, if there is a
reasonable possibility that the error contributed to the
defendant's conviction, i.e., that the erroneous jury instruction
was not harmless beyond a reasonable doubt.” 1gp at 337, 141
P.3d at 984 (emphasis added). The questions to be addressed,
then, are (l) whether there was instructional error and

(2) whether any such error was harmless.

Again, as to whether instructional error occurred,

“[w]hen jury instructions or the omission thereof are at issue on
appeal, the standard of review is whether, when read and

considered as a whole, the instructions given are prejudicially

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insufficient, erroneous, inconsistent, or misleading.” State v.
Gonsalves, 108 Hawafi 289, 292, 119 P.3d 597, 600 72005)
(internal quotation marks and citation omitted) (emphasis added).
1n this case, it does not appear that any prejudice resulted from
the court's instructions. Petitioner’s theory is that, based on
his statement in the second trial that “[t]hese guys go take my
money[,]”” there is a reasonable possibility that the jury might
have concluded that Petitioner was justified in using deadly
force in order to prevent a kidnapping, because he believed the
officers were “intentionally or knowingly restrain[ing] another
person with intent to . . . [f]acilitate the commission of a
felony[,]” i.e., theft. However, based only on the lone
statement of “taking my money,” there would not be a reasonable
possibility that any potential error regarding the kidnapping
instruction might have contributed to Petitioner’s conviction,

and thus, his argument that this court should recognize plain

error must be rejected.

” The testimony upon which Petitioner relies was as follows:

[DEFENSE COUNSEL] Q. -- that they were reaching
around your pocket area?

[PET1T1ONER] A. They was reaching in my
pockets.

Q. And, what -- when they reached in your
pockets, what did you think? y

A. These guys go take my money.

Petitioner does not point to any testimony or other evidence indicating his

actions against the officers were taken because he believed they were going to
steal his money.

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V.
A.
1.

As to his second question, Petitioner maintains in his
Application that the “[c]oncurrent representation of Piko and
[Petitioner] should have led to imputed disqualification of the
[OPD] requiring a mistrial and appointment of new counsel.”
Petitioner asserts that the OPD represented Piko “from 2001 to
2002[, t]he OPD continued its representation of Piko in April of
2004[,]” and that “[d]uring this time, the OPD was also
representing [Petitioner] during his two trials starting from
March of 2003.” According to Petitioner, DPD Ho “testified that
within the OPD, there was ‘free sharing of information.’

There was no screening procedure to prevent [DPDs] from
discussing client confidences with other [DPDs].”

Petitioner avers that the OPD was required to find
evidence to impeach Piko, including evidence in the 0PD’s files,
and the fact that it “supposedly did not discover [the] conflict
until July of 2004 would indicate that [it] placed Piko’s
confidentiality above [Petitioner's] need for the evidence.
Additionally, Petitioner argues that “the 1CA never directly

addressed the defense’s assertion that, if a public defender’s

1office is to be treated as a private law firm rather than a

government office, then there should be an imputed

disqualification for all the attorneys in the office.” He claims

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that “[o]ther jurisdictions have found that any confidential
information obtained by a public defender from a client must be
imputed to other members of the public defender’s staff.”
2.
Respondent disagrees, claiming that HawaiYi Rules of

Professional Conduct (HRPC) Rule 1.7” and Rule 1.9” “do not
require after-the-fact disqualification.” Respondent relies

entirely on the 1CA’s holding on this issue, discussed further

infra, in support of its conclusion that “Petitioner's accusation

does not constitute a basis to grant his Application.”
3.
The 1CA “assume[d,] arguendo that OPD was one ‘firm

within the meaning of HRPC Rule 1.10”” and determined “that

‘[Piko] was a former client of OPD in July 2004.” Mark, 120

HawaFi at 532-33, 210 P.3d at 55-56 (emphasis added). The 1CA
concluded that (1) “[c]ourts from other jurisdictions have found
no conflict of interest based on defense counsel’s prior
representation of a witness, when the witness had already been

sentenced before the commencement of trial[,]” (2) “[t]he

'conclusion that Rule 1.9 governs here is also consistent with

Richie[,]” (3) “[t]he [court] properly determined that the denial

of [Petitioner’s Motion] would not result in a violation of Rule

” discussion of HRPC Rule 1.7 infra.

U)
(D
(`D

31

U)
CD
('D

discussion of HRPC Rule 1.9 infra.

l

” discussion of HRPC Rule 1.10 infra.

(/)
(D
(D

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1.9(c)[,]” and (4) “there is nothing in the record establishing
that there was any adverse effect on [Loy’s] actual performance
at trial.” ;a_._ at 534-35, 210 P.3d at 56-58. The :cA held that
the court “did not abuse its discretion in denying the
motions[.]” 1gp at 535, 210 P.3d at 58.
1n regard to Petitioner’s contention that Petitioner’s
Motion “should have been granted” because “the OPD was
representing both Piko and [Petitioner] concurrently in April
2004, when Piko’s probation was being revoked and [Petitioner]
was waiting for his second trial to begin[,]” the 1CA concluded
that “[i]t is undisputed that the OPD was unaware of that
concurrent representation when it was occurring, and thus it had
no effect on the representation of either client at that time.”
1gg \The 1CA held that “[i]n the circumstances of this case,
Rules 1.7 and 119 do not require after-the-fact
disqualification.” 1gy
B.
This court granted the OPD leave to file an Amicus

Curiae brief (Amicus) with respect to the specific issue of

“(1) how the [1CA’s] May 8, 2009 opinion on the issue of
conflicts of interest affects the interests of the 0PD; and

(2) how the May 8, 2009 opinion impacts the OPD's criteria to
determine whether a conflict of interest exists.” This court
ordered Respondent to file a response to the Amicus brief

(Response to Amicus).

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C.
1.
HRPC Rule 1.7 sets forth the standard\for'when a
conflict arises in the context of concurrent representation of

multiple clients:

Rule 1.7. CONFLICT OF INTEREST: GENERAL RULE.

(a) A lawyer shall not represent a client if the
representation of that client will be directly adverse to
another client, unless:

(l) the lawyer reasonably believes the representation
will not adversely affect the relationship with the other
client; ppg

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the
representation of that client may be materially limited by
the lawyer’s responsibilities to another client or to a
third person, or by the lawyer’s own interests, unless:

(l) the lawyer reasonably believes the representation
will not be adversely affected; and

(2) the client consents after consultation. When
representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of
the implications of the common representation and the
advantages and risks involved.

(Emphases added.) Thus, under the rules, a lawyer may not
concurrently represent a client if such representation is
“directly adverse” to another client, or if representation might
be jeopardized by obligations arising out of representation of
another3client.

With regard to a lawyer’s obligations of loyalty to his

or her client, Comments 3 and 4 to HRPC Rule l.7 provides that:

[3] As a general proposition, loyalty to a client
prohibits undertaking representation directly adverse to
that client without that client’s consent. Paragraph (a)
expresses that general rule. Thus, a lawyer ordinarily may
not act as advocate against a person the lawyer represents
in some other matter, even if it is wholly unrelated. On
the other hand, simultaneous representation in unrelated
matters of clients whose interests are only generally
adverse, such as competing economic enterprises, does not
require consent of the respective clients. Paragraph §a)
applies only when the representation of one client would be

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(Emphases added.)

of litigation,

Comment 7

whether a

directly adverse to the other.

[4] Loyalty to a client is also impaired when a
lawyer cannot consider, recommend or carry out an
appropriate course of action for the client because of the
lawyer’s other responsibilities or interests, The conflict
in effect forecloses alternatives that would otherwise be
available to the client. Paragraph (b) addresses such
situations. A.possible conflict does not itself preclude
the representation, The critical guestions are the
likelihood that a conflict will eventuate and, if it does,
whether it will materially interfere with the lawyer’s
independent professional judgment in considering
alternatives or foreclose courses of action that reasonably
should be pursued on behalf of the client. Consideration
should be given to whether the client wishes to accommodate
the other interest involved.

Regarding conflicts that arise in the context

the Commentary states in relevant part:

Paragraph (a) prohibits representation of opposing
parties in litigation, Simultaneous representation of
parties whose interests in litigation may conflict, such as
co-plaintiffs or co-defendants, is governed‘by paragraph
(b). An impermissible conflict may exist by reason of
substantial discrepancy in the parties’ testimony,
incompatibility in positions in relation to an opposing
party or the fact that there are substantially different
possibilities of settlement of the claims or liabilities in
question. Such conflicts can arise in criminal cases as
well as civil. The potential for conflict of interest in
representing multiple defendants in~a criminal case is so
grave that ordinarily a lawyer should decline to represent
more than one co-defendant. On the other hand, common
representation of persons having similar interests is proper
if the risk of adverse effect is minimal and the
requirements of paragraph (b) are met.

to HRPC Rule 1.7 (emphases added).

HRPC Rule 1.9 sets forth the standard for adjudging

conflict is present in the context of former

representation:

Rule 1.9. CONFLICT OF INTEREST: FORMER CLIENT.
(a) A lawyer who has formerly represented a client in

a matter shall not thereafter represent another person in

the same or a substantially related matter in which that
person's interests are materially adverse to the interests
of the former client unless the former client consents after
consultation. 4

(b) A lawyer shall not knowingly represent a person in
the same or a substantially related matter in which a firm
with which the lawyer formerly was associated had previously
represented a client '

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(l) whose interests are materially adverse to that
person; and

(2) about whom the lawyer had acquired information
protected by Rules l.6 and 1.9(c) that is material to the
matter; unless the former client consents after
consultation. y

(c) A lawyer who has formerly represented a client in
a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter;

(l) use information relating to the representation to
the disadvantage of the former client except as Rule l.6 or
Rule 3.3 would permit or require with respect to a client,
or when the information has become generally known; or

(2) reveal information relating to the representation
except as Rule l.6 or Rule 3.3 would permit or require with

respect to a client.[”]

(Emphases added.)
2.

1n Richie, this court set forth the standard for
determining when a conflict arises amounting to ineffective
assistance of counsel under the HawaiH_Constitution, based on
the federal standard as well as HRPC Rule 1.7. Richie, 88
HawaFi at 44; 960 P.2d at 1252. This court first noted that,

under federal law,

the defendant must demonstrate that his attorney actively
represented conflicting interests and that an actual
conflict of interest adversely affected his lawyer’s
performance. As noted above, proof of actual prejudice is
not reguired. Furthermore, a defendant may knowingly,
intelligently, and voluntarily waive his right to

conflict-free representation.

” HRPC Rule l.6 outlines certain instances wherein an attorney is
permitted or mandated to reveal information relating to representation. The
rule allows “for disclosures that are impliedly authorized in order to carry
out the representation” and further permits the attorney to reveal information
to prevent criminal activity under certain circumstances, or to defend the
attorney in a suit brought by the client. The rule further mandates
disclosure of “information which clearly establishes a criminal or fraudulent
act of the client in the furtherance of which the lawyer’s services had been
used[.]”

HRPC Rule 3.3 prohibits an attorney from providing false
information to the court, and places an obligation on the attorney to disclose
information to the court “when disclosure is necessary to avoid assisting a
criminal or fraudulent act by the client[.]”

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1gy (internal quotation marks and citations omitted) (emphases
added). Thus, Richie explained that, based on HRPC Rule 1.7 anda
federal law, three factors are relevant in determining whether a
conflict rises to the level of ineffective assistance: “The
first factor is whether a relationship existed between the
attorney and his/her clients giving rise to a conflict. The
second factor is whether the relationship had an adverse effect
on counsel’s performance. And the third factor is whether
counsel obtained the consent of his/her clients.” 1gp (emphases
added). However, in formulating the Hawaifi standard, this court
did ppg require that all three factors be present in order for
assistance to be ineffective, but that there must be “(1) a
relationship giving rise to a conflict of interest . . . between
defense counsel and his/her clients; and (2) either the
relationship adversely affected defense counsel’s performance, pp
the client did not consent to the relationship.” 1gp (emphases
added). Thus, where there is a “relationship giving rise to a
conflict” and absence of consent, assistance will be considered
constitutionally ineffective, As to what types of relationships
“giv[e] rise” to a conflict, this court listed as “[e]xamples,”
“joint representation of two or more co-defendants and [pertinent
to this case] concurrent representation of both the defendant and

a prosecution witness.” 1d. (emphasis added).

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3.

The court determined, and the 1CA affirmed, that in
this case, OPD’s representation of Piko was “former”
representation, and not concurrent representation of both
Petitioner, i.e.,Fthe defendant, and Piko, i.e., a prosecution
witness. Mg;k, 120 Hawafi at 533, 210 P.3d at 56. Thus, the

standard set forth in Rule 1.9, and not Rule 1.7, was applicable.

Although Richie did not deal with former representation under

jRule 1.9, but only with concurrent representation under Rule 1.7,

the standard set forth therein should be applicable in either
context, inasmuch as both pertain to conflicts of interest.
However, different standards for what constitutes a “relationship
giving rise to a conflict” govern depending on which rule is
applied. See Fragiao v. State, 95 HawaiH.9, 18, 18 P.3d 871,

880 (2001) (“To determine whether a relationship giving rise to a
conflict of interest eXisted, we turn to the HRPC for guidance.
Satisfaction of the first prong of the Richie test depends on
whether the relevant HRPC provisions would prohibit [the
attorneyl from representing [the clientl.”) (Citation omitted.)
(Emphasis added.) t

Thus, while under Rule 1.7, the status of the clients

as “defendant” and “prosecution witness” alone would constitute a
relationship giving rise to a conflict where there is concurrent
representation, under Rule 1.9, subsequent representation of

another client would be permissible so long as it is not in the

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context of “the same or a substantially related matter” and the
lawyer refrains from “us[ing] information relating to the

representation to the disadvantage of the former client except

. when the information has become generally known; or []
reveal[ing] information relating to the representation[.]” Thus,
first it must be determined whether the court or the 1CA erred in
concluding that OPD’s representation of Piko was “former”

representation as opposed to “concurrent.”

4.

As recognized by the 1CA,

Rule 1.9 does not define what it means for an attorney to
have “formerly” represented a client. The comment to the
rule notes only that “falfter termination of a client-lawyer
relationship, a lawyer may not represent another client
except in conformity with this rule.” The [American Bar
Association's (ABA)] Annotated Model Rules of Professional
Conduct (5th ed. 2003) (“Annotated Model Rules”) notes that
“[t]here is no per se rule regarding when a client becomes a
former client.” Annotated Model Rules at 173.

Mark, 120 Hawai‘i at 533, 210 P.3d at 56 (emphasis added).

Comments 1 and 2 to Rule 1.9 further states:

[1] After termination of a client-lawyer
relationship, a lawyer may not represent another client
except in conformity with this rule. The principles in Rule
1.7 determine whether the interests of the present and
former client are adverse, Thus, a lawyer could not
properly seek to rescind on behalf of a new client a
contract drafted on behalf of the former client. So also a
lawyer who has prosecuted an accused person could not
properly represent the accused in a subsequent civil action
against the government concerning the same transaction.

[2] The scope of a “matter” for purposes of this rule
may depend on the facts of a particular situation or
transaction. The lawyer’s involvement in a matter can also
be a question of degree. When a lawyer has been directly
involved in a specific transaction, subsequent
representation of other clients with materially adverse
interests clearly is prohibited. On the other hand, a
lawyer who recurrently handled a type of problem for a
former client is not necessarily precluded from later
representing another client in a wholly distinct problem of
that type even though the subsequent representation involves

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a position adverse to the prior client. Similar
considerations can apply to the reassignment of military
lawyers between defense and prosecution functions within the

same military jurisdiction.‘ The underlying guestion is
whether the lawyer was so involved in the matter that the

subsequent representation can be justly regarded as a
changing of sides in the matter in question.

(Emphases added.) Thus, subsequent representation is prohibited
where the subsequent client’s interests are adverse to the former
client with regard to “the same transaction.”

The 1CA, like the court, “conclude[d] that [Piko] was a
former client of OPD in July 2004[,]” because “Piko’s probation
violation had been adjudicated and Piko had been re-sentenced to
a new term of probation in April 2004y approximately three months
before the eeeeha trial.” L, 120 hawai‘i at 533,¥210 P.3d at

56. The 1CA further deemed relevant that

[t]he [court] found in [finding] 4 that the OPD did not
“have any matters pending with regard to Piko” in July 2004
and had closed [its] file, and there is substantial evidence
to support that finding. OPD’s closing of the file implies
that it understood that it would not be called upon to use
the file again, absent some unforeseen future event. The
mere possibility that such an event could occur is
insufficient to convert what would otherwise be former
representation into concurrent representation for the
purposes of the HRPC. Moreover, there is nothing in the
record indicating that Piko had any understanding that his
representation by OPD was ongoing after his re-sentencing in
April 2004,

The court, in determining that no conflict existed
based on OPD’s “former” representation of Piko, made the

following relevant findings and conclusions:

F1NDINGS OF FACT

1. [Ho] testified that [Piko] previously had been
represented by [Burks] of [OPD].

2. [Burks] previously represented Piko in a matter
that resulted in him being placed on his current probation.

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3. Piko has never waived his attorney-client
privilege.

4. Neither [Burks] nor the [OPD] have any matters
pending with regard to Piko and the fOPD] has closed his
file.

5. Ho had never assigned either [Loy] or [Marshall] to
handle any matters regarding Piko.

6. Piko’s files, which came in existence during his
relationship with [Burks], are in Ho's office and if
instructed by the court he would not allow anyone access to
the files.

7. Ho had no knowledge of either [Loy] or [Marshall]
having gained access to Piko’s files or having learned of
any confidential attorney-client communications had between
Piko and [Burks].

8. LLQy] had not learned of any secrets of Piko nor
did she have knowledge of any confidential attorney-client
communications had between Piko and [Burks].

9. fLoyl informed the court that she had never worked
on Piko’s case.

10. Piko’s conviction for forgery and his status as a
probationer are matters of public record, which [OPD] could
acquire.

11. [Petitioner’s] trial does not involve either the
same or any matter substantially related to the facts and
circumstances regarding the case in which Piko was placed on
probation.

12. [OPD] never represented Piko for any matter
related to the alleged parking lot shooting for which
[Petitioner] is currently standing trial.

13. Piko’s prior case with fOPD] is completely
unrelated to any of the circumstances in the instant trial
involving Defendant,

14. [Loy] represented to the court that she intended
to call Piko as her own witness.

15. [Loy] informed the court that Piko’s testimony
would benefit the defense theory, notwithstanding the
possibility that he might be subject to impeachment with his
forgery conviction and his current status as a probationer
in the event he does not testify in accordance with the
testimony he gave during [Petitioner’s] prior trial and
other statements he made.

16. [Loy’s] ability to represent zealously the
interests of [Petitioner] will not be affected by Piko’s
status as former client of [OPD]. ~

17. [Loy] did not identify any limitation on her
ability to represent zealously [Petitioner] due to [Burks’]
prior representation of Piko.

22. Neither [Loy] nor [Marshall] will attempt to gain
access to confidential attorney-client files of Piko created
as a result of [Burks’] representation of him or knowledge
of any confidential attorney-client communications had
between them.

23, 1n order to ensure and prevent any conflicts of
interest, [OPD] is disqualified immediately from
representing [Piko] in any matter here on.

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CONCLUSIONS OF LAW

1. Based upon the evidence the court found credible,
and the representations of counsel, there is no basis to
conclude that confidential attorney-client communications
had between [Burks] and Piko will be communicated to either
[Loy] or [Marshall].

. . . . [“]

3. Because nothing currently is pending with regard to
[Pikol and [OPD1 considers his case closed, his relationship
with [OPDl is not concurrent. Piko’s status is that of a
prior or former client for purposes of conflict analysis.

4. Piko’s status as a former or prior client makes
[Richie] distinguishable from the situation in the instant
matter, because the case dealt with one defense lawyer
concurrently representing the defendant and a key state
witness, creating a clearly, inherently, and directly
adverse conflict. Whereas, in the instant matter, neither
[Loy] nor [Marshall] ever represented Piko, and only
[Petitionerl, not Piko, is a current client of [OPDl.

5. Pursuant to [HRPC Rule 1.9], a lawyer who formerly
represented a client in a matter shall not thereafter
represent another person in the same or a substantially
related matter in which that person's interests (to wit
those of [Petitionerl) are materially adverse to the
interests of the former client unless the former client
consents after consultation.

6. The commentary to [HRPC Rule 1.9l notes that the
principles of [HRPC Rule 1.7] determine whether the
interests of the present and former client are adverse.

7. Neither [Loy] nor [Marshall] are acting as an
advocate against [Petitioner], whom they currently
represent, thus there is no violation of [HRPC Rule 1.7].

8. 1nasmuch as neither [Loy] nor [Marshall] ever
represented Piko, and there being no evidence of any
relationship that exists or existed between him and [Loy] or
[Marshall], counsels’ ability to represent [Petititioner]
will not be materially limited due to [Burks'] prior
representation of Piko.

9. There has been no showing of any specific material
limitation that will arise in [Loy’s] representation of
[Petitioner] based upon [Burks’] prior representation of
Piko.

10. Piko’s conviction for forgery and his status as a
probationer are public record and not matters of
confidential attorney-client communications.

11. [Loy] will be allowed to adduce evidence regarding
Piko’s conviction for forgery and his status as a
probationer, as such information is public record and the
prosecution has so acknowledged and agreed to its
admissibility.

12. Neither [Loy1sl nor [Marshall’sl duties and
responsibilities to fPetitioner] reguire that they attempt
to gain access to Piko’s confidential attorney-client files
that came into existence as a result of [Burks’]
representation of him.

“ Conclusion 2, which indicated that OPD is “more akin to a law firm
than a government office[,]” was deleted by the court.

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13. Neither [Loy's1 nor [Marshall*s] duties or
responsibilities to [Petitioner] require that they attempt
to gain knowledge of confidential attorney-client
communications had between Piko and IBurksl.

14. [Loy's], as well as [Marshall’s] loyalty to
[Petitioner] is undivided and will not be affected adversely
by [Burks’] prior represenation of Piko.

15. Neither [Loy] nor [Marshall] has a duty of loyalty
to Piko resulting from [Burks’] prior representation of him.

16. The inadmissibility of evidence regarding any
confidential attorney-client communications had between Piko
and [Burks] . . . is based upon the attorney-client
privilege and as such does not demonstrate [Loy’s] lack of
loyalty or ability to represent effectively [Petitioner].

17. Neither [Loy’s] nor [Marshall’s] representation of
[Petitioner] is directly adverse to [Burks’] prior
representation of Piko.

18. [Burks’] prior representation of Piko is not
directly adverse to either [Loy's] or [Marshall’s]
representation of [Petitioner].

(Emphases added.)” Manifestly, then, the court concluded that
OPD’s representation of Piko was prior, as opposed to concurrent,
to its representation of Petitioner, making Rule 1.9 applicable.

The court determined that there was no conflict under
Rule l.9, because OPD’s subsequent representation of Petitioner
was not “in the same or a substantially related matter in which
[Petitioner’s] interests are materially adverse to the interests
of the former client,” inasmuch as Piko’s previous forgery charge
was entirely unrelated to the events leading to the charges

against Petitioner, and Petitioner’s interests were not adverse

” Although the court did not state upon what it based the finding
that OPD is more akin to a private firm, OPD argues that there was
“substantial evidence in the record to support the circuit court's finding[,]”
such as the sharing of confidential information, the use of file storage
facilities accessible to all DPDs, DPDs “standing in” for other DPDs at trial
and hearings when it is required, and the agency relationship of public
defenders to the State Public Defender. However, as discussed infra, these
facts are not applicable inasmuch as Piko was a former client at the time he
gave his testimony and the subsequent representation of Petitioner was
manifestly not part of “the same or a substantially related matter[.]” HRPC
Rule 1.9.

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to Piko’s as to the forgery charge but only with regard to a
completely distinct matter. Furthermore, the court concluded
there was no evidence that Loy or Marshall would “use information
relating to the representation to the disadvantage of the former
client except . . . information [that] has become generally
known[,]” ippp, Piko’s prior conviction, or “reveal information
relating to the representation[.]” _pp HRPC Rule 1.9.”

D.

1.

Despite the fact that OPD’s representation of Piko
could have been properly considered former after April 2004, and,
indeed, after the July 2004 hearing in which the court precluded
OPD from further representation of Piko in any context, plainly,

there was a period of concurrent representation prior to the

“ With regard to confidentiality, Comment 6 to Rule 1.9 provides as
follows:

[6] Preserving confidentiality is a guestion of
access to information. Access to information, in turn, is
essentially a guestion of fact in particular circumstances,
aided by inferences, deductions or working presumptions that
reasonably may be made about the way in which lawyers work
together. A lawyer may have general access to files of all
clients of a law firm and may regularly participate in
discussions of their affairs; it should be inferred that
such a lawyer in fact is privy to all information about all
the firm’s clients. 1n contrast, another lawyer may have
access to the files of only a limited number of clients and
participate in discussions of the affairs of no other
clients; in the absence of information to the contrary, it
should be inferred that such a lawyer in fact is privy to
information about the clients actually served but not those
of other clients.

(Emphasis added.) The court's findings indicate that, based on the specific
facts of this case, Petitioner’s attorneys’ access to the files regarding `
OPD’s former representation of Piko was limited. Upon this record, it does
not appear that those findings were clearly erroneous.

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second trial. As noted by the 1CA, “Ho testified that in his
opinion, [OPD's] representation of Piko and [Petitioner] was
concurrent because while the office ‘was active with
[Petitioner’s] case, [Piko] came back on a probation revocation
and then [OPD] represented both defendants at the same time.'T
M§;k, 120 Hawai‘i at 529, 210 P.3d at 52. Thus, there was a
period of concurrent representation.
The 1CA rejected Petitioner’s assertion that the

previous period of concurrent representation created a conflict.

The 1CA noted Petitioner’s argument that

even if [OPD] was not concurrently representing [Petitioner]
and Piko at the time of [Petitioner’s] second trial in July
2004, the motions should have been granted based on the fact
that [OPDl was representing both Piko and [Petitionerl
concurrently in April 2004, when Piko’s probation was being
revoked and [Petitioner] was waiting for his second trial to
begin.

1gy at 535, 210 P.3d at 58 (emphasis added). However, the 1CA
“reject[ed] this argument” because “[i]t is undisputed that [OPD]
was unaware of that concurrent representation when it was
occurring, and thus, it had no effect on the representation of
either client at that time. 1n the circumstances of this case,
Rules 1.7 and l.9 do not require after-the-fact
disqualification.” 1gp (citation omitted). The 1CA noted that
“we do not mean to suggest that a lawyer will always avoid
disqualification in circumstances where the lawyer was unaware of
a potential conflict.” 1gp at 536 n.27, 210 P.3d at 59 n.27.
While that point is cogent, especially with regard to a

single lawyer whose multiple representation gives rise to a

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conflict, it is worth noting that, with respect to attorneys
working for a law firm, Rule 1.10 is also relevant, requiring
that “[w]hile lawyers are associated in a firm, none of them
shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so[.]” (Emphasis
added.) Clearly, Loy’s and Burks’ representation of Petitioner
and Piko, respectively, in April 2004, was not “knowing” as to

representation by the other and, thus, would not directly violate

Rule 1.10.
2.

Although not precisely on point, Richie is instructive
in determining, in the case of either prior or concurrent
representation( whether at a given point in time, the nature of
the attorney-client relationship is one that gives rise to a
conflict. Although the 1CA discussed the facts of Richie as
being supportive of its conclusion, it is unclear how the 1CA
applied Richie. With regard to the facts of Richie, the 1CA

stated that

[tlhe conclusion that Rule l.9 governs here is also
consistent with Richie, The defendant in Richie was
convicted of promoting prostitution, after he had been paid
to provide several women to perform as exotic dancers at a
bachelor party, One of those women, Monica Alves [(Alves)],
had been a codefendant in the case, but the charges against
her had been dismissed by the time of Richie’s trial.

Richie was represented at trial by two attorneys. On
appeal, Richie asserted “that the performance of his trial
counsel was constitutionally ineffective based on a conflict
of interest” where “one of his trial attorneys was
representing {] A1ves in a civil suit at the same time the
attorney was representing Richie in the present case.”

The supreme court concluded that while trial counsel’s
decision to represent Alves in the civil case was “at the
very least, unwise, under the particular circumstances of
this case, we do not believe that trial counsel’s

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relationship with his clients was sufficient to give rise to
a conflict of interest.” The court observed that (l) by the
time Richie's trial began, the charges against Alves had
been dismissed, and Alves was no longer a codefendant in
Richie's case; (2) although Alves was a potential
prosecution witness, she was not actually called to testify;
and (3) that Richie “was represented by two attorneys at
trial, and only one of those was involved in Alves's civil
suit."
1n sum, Richie involved potential concurrent

representation. The supreme court expressly noted that
“prior representation is not at issue in the present case.”
Thus, while Richie is instructive with regard to the supreme
court's application of HRPC Rule l.7, it is consistent with
our conclusion that the circuit court properly determined
that Rule 1.9, rather than Rule l.7, governed the situation

here.

Mgrk, 120 Hawai5i at 534, 210 P.3d at 57 (emphases added)
(internal citation, ellipsis, and brackets omitted). 1t is not
evident from the 1CA's discussion how Richie “is consistent with
[the] conclusion” that Rule l.9 should apply. 1t is necessary
that the 1CA's discussion on this point be clarified.

As noted above, in Richie, one of the defendant's trial
attorneys represented Alves, a former co-defendant and potential
prosecution witness, in a civil suit at the same time the
attorney was representing Richie, 88 Hawafi at 41, 960 P.2d at
1249. This court concluded that there was no conflict due to

concurrent representation in that case, based on the following:

First, it is apparently undisputed that trial counsel
represented both Richie in the present case and Alves in a
separate civil case. 1nasmuch as Alves was an obvious
potential witness in the present case, trial counsel’s
decision to represent Alves in the civil case was, at the
very least¢ unwise. However, based on the particular
circumstances of the present case, we do not believe that
trial counsel’s relationship with Richie and Alves supports
an ineffective assistance of counsel claim. By the time
Richie went to trial, the charges against A1ves had been
dismissed; therefore, she was no longer a co-defendant in
the present case. Furthermore, Alves was never actually
called as a witness in this case. Although she was clearly
a potential witness, she was not an actual witness.
Therefore, Alves was neither a co-defendant nor a

prosecution witness in Richie’s trial. Moreover, Richie was
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represented by two attorneys at trial, and it appears that
only one of these attorneys was involved in Alves's civil
suit. Consequently, under the particular circumstances of
this case, we do not believe that trial counsel’s
relationship with his clients was sufficient to give rise to
a conflict of interest.

1d. at 44, 960 P.2d at 1252 (some emphases in original and some

`added) (emphasis omitted).

Hence, Richie indicates that, although a “relationship
giving rise to a conflict” may exist at a certain point in time,
i+pp, prior to trial, if that relationship ceases prior to the
development of an actual conflict, then counsel is not
necessarily ineffective, depending on the “particular
circumstances of the [] case[.]” §pp igp 1n Richie, it appears
that, at some point prior to trial, Alves was both a co-defendant

and a potential witness, and thus, concurrent representation

would have given rise to a conflict at that time; however, Richie

relied on the fact that “[bly the time Richie went to trial,
[Alves] was no longer a co-defendant” and she did not
appear as a prosecution witness. 1gp (emphasis added). Thus,
under the particular circumstances of that case, no conflict
materialized. 3
3.

Similarly, here, prior to Petitioner’s second trial,
when Piko’s case was re-opened due to a violation of his
probation, OPD concurrently represented Piko and Petitioner for a
period of time when Piko was a potential prosecution witness.

During that particular time period, a “relationship giving rise

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to a conflict” potentially existed between OPD, Piko, and
Petitioner. OPD maintains that “the 1CA placed too much reliance
on the fact that Piko’s physical file had been closed [and] was
stored in a room designated for closed files.” According to OPD,
the practice of when a file should be closed varies from attorney
to attorney and, as such, should not be a measure for when
representation has ended.”

However, “[b]y the time [Petitioner] went to trial” in
the second trial, Piko’s case file was closed, and OPD was no
longer actively representing Piko. Furthermore, if any question
remained as to whether OPD still held any responsibilities with
regard to Piko} the court officially terminated any future OPD
representation of Piko at the July 2004 hearing, prior to the
time when Petitioner called Piko as an adverse witness.” Thus,
at the time Loy engaged in her cross-examination of Piko at
trial, there is no question that OPD’s representation of Piko had
ceased. As explained §pprg, HRPC Rule l.9, subsequent
representation of another client (in this case, Petitioner,) is

permissible so long as it is not in the context of “the same or a

“ OPD asserts that “[r]epresentation does not cease when a defendant
is sentenced to a probationary term. Representation continues while defendant
is on probation.” OPD claims that “every new case [that] is initiated by
complaint, information or indictment, is assigned a new criminal number,” but
no new numbers are assigned and “reappointment is not necessary [post-
sentencing] because the attorney who represented the defendant at sentencing
continues to represent the defendant on post-sentencing matters.” However,
OPD does not explain how this would prevent it from implementing effective
screening procedures to avoid potential conflicts.

“ Piko was not called by the prosecution.

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substantially related matter” and counsel refrains from using the
information obtained through that prior representation to the
detriment of the former client. Here, it is evident that Loy did
not access or use information in Piko’s file.r

4.

‘ For the reasons stated above, and based on the
particular circumstances of this case, the 1CA did not gravely
err in concluding that the court did not abuse its discretion by
applying the standard for “former” representation under Rule 1.9
in denying Petitioner’s motion for mistrial. The proceedings in

which OPD represented Petitioner were not “the same or []

substantially related” to those in which it previously

\\

represented Piko, and there was no evidence that OPD would use

. or [] reveal [confidential] information relating to the
representation” of Piko, and, instead, substantial evidence was

presented that OPD would not use any information obtained by

virtue of its previous representation of Piko.” See Mark, 120

Hawafi at 530, 210 P.3d at 53.

” OPD argues that, “[i]f the motion [to withdraw] would have been
granted prior to the commencement of trial, the same motion should be granted
during trial, especially prior to the cross-examination of OPD
client/witness.” 1t asserts that if a motion to withdraw had been made at the
time of the concurrent representation, it should have been granted. 1n its
response to OPD’s amicus brief, Respondent argues that, “[n]otwithstanding OPD
counsel’s assertion, the ‘timing of the motion' must matter because a court
cannot be expected to act until the matter is brought to the attention of the
court or a disqualifying conflict of interest is readily apparent from the
proceedings.” Respondent is correct insofar as the potential for conflict in
this case was resolved as indicated. Moreover, as Respondent correctly
stated, many conflicts may be avoided if OPD follows the advice of the 1CA,
which “emphasize[d] the importance of having effective procedures in place to
timely identify potential conflicts before representation is undertaken.”
(Citing Mark, 120 Hawai‘i at 536 n.27, 210 P.3d at 59 n.27).

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5.

Although the 1CA did not gravely err in its conclusion
that the court's decision was not an abuse of discretion, it is
necessary to correct the 1CA’s opinion, inasmuch as it based its
decision in part on its conclusion that there was no “adverse
effect on [counsel’s] actual performance at trial[,]” Mgrk, 120
Hawafi at 535, 210 P.3d at 58, thereby indicating that the
effect on counsel’s performance is a necessary consideration,
even in cases where no consent has been given as in this case.
Such a view represents an unwarranted departure from Richie.

As stated su ra, Richie held that representation is
constitutionally ineffective where there exists “(1) a
relationship giving rise to a conflict of interest . . . between
defense counsel and his/her clients; and (2) either the
relationship adversely affected defense counsel’s performance, pp
the client did not consent to the relationship.” Richie, 88
HawaFi at 44, 960 P.2d at 1252 (emphases added). Thus, where no
consent is given, the defendant need pgp show any adverse affect
on counsel’s performance.

Petitioner claims that “it is undisputed that neither
[Petitioner] nor Piko consented to any conflict of interest.”
Respondent does not dispute this claim. Under Richie, absent
consent, the only remaining question as to whether counsel was

ineffective is whether there was a “relationship giving rise to a

qconflict[,]” regardless of counsel’s actual performance. See id.

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Moreover, Richie emphasized that no showing of “actual prejudice”
is required, i.e., a showing that there is a reasonable
possibility that the result of the proceeding might have been
different. 1gp at 42, 960 P.2d at 1250. 1n that regard, Richie
adopted the rationale of the federal courts that “proof of actual
prejudice is not required because ‘prejudice is presumed when
counsel is burdened by an actual conflict of interest.'” 1gp at
42-43, 960 P.2d at 1250-51 (quoting Strickland v. Washington, 466

U.S. 668, 692 (1984)).

1n spite of the holding in Richie, the 1CA based its

decision in part on its determination that

there is nothing in the record establishing that there was
any adverse effect on fLoy's] actual performance at trial.
She cross-examined Piko regarding his prior forgery
conviction, his probation status and his prior assault
convictions, Piko admitted that he had made what could be
interpreted as a threatening comment to [Petitioner] and
that he had a temper (thus supporting [Petitioner’s]
self-defense theOry), and that he thought he had a deal when
he testified in the first trial (thus impeaching his
credibility and establishing the basis for the motion that
is the subject of section 1V.G.1., fof the 1CA’s opinion]).
Finally, the jury was unable to reach a verdict on the
charges related to Piko, and the circuit court dismissed the
charges after trial.

Courts that have found no conflict of interest in
former representation cases have emphasized that there was
no adverse effect on the performance of counsel. .

1n sum, we conclude that the circuit court correctly
analyzed [Petitioner’s] motions under Rule l.9, and did not
abuse its discretion in denying the motions.

Mgrk, 120 Hawafi at 535, 210 P.3d at 58 (emphases added)
(citation omitted).

Although the observations made by the 1CA are pertinent
inasmuch as they reflect and support the conclusion that no

conflict existed, they are misleading to the degree that they

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indicate that a showing of an “adverse effect” or “actual
prejudice” might be necessary, even where no consent has been
given. Thus, it must be reiterated that Richie held that, at
least where no consent has been given, no showing of adverse
effect is necessary, and there is no requirement that prejudice
be demonstrated under any circumstances.
E.

Underlying the question of whether a conflict existed

'is the question of whether OPD should be treated as a single law

firm for purposes of this analysis, or as a government office.

1n that regard, HRPC Rule 1.10(a)/provides in part that “[w]hile
lawyers are associated in a firm, none of them shall knowingly
represent a client when any one of them practicing alone would be
prohibited from doing so by Rules 1.7f or] 1.9[.]” However, with
regard to government offices, HRPC Rule 1.10(d) provides for an
exception that “[t]he disqualifications of Rules l.7, 1.9(a),

for] 1.9(b) . . . shall not be imputed to government lawyers
provided the disqualified government lawyer has been screened
from participation in the matter.”

with respect to this question, the 1CA stated that

Rule 1.10(d) suggests the existence of a threshold question,
i.e., whether the OPD should be considered a single law firm
for the purposes of this analysis. §pp State v. Pitt, 77
Hawai‘i 374, 380, 884 P.2d 1150, 1156 (App. 1994) (adopting
a “case-by-case approach” to determine whether or not to
apply the “private firm principle” of HRPC 1.10 to
government offices). However, in view of our application of
Rules 1.7 and l.9 to the circumstances of this case, we need
not resolve that question, and we will assume arguendo that
OPD was one “firm” within the meaning of HRPC Rule 1.10.

Mark, 120 Hawaiii at 532, 210 P.3d at 55 (emphasis added). Thus,

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the 1CA did not directly address the Rule 1.10 question, because
it determined that, under the circumstances of this case, the
situation was not such that “one of them practicing alone would
be prohibited from doing so by Rules 1.7 for] 1.9[,]” ppg HRPCg
Rule l.10, and thus, Rule 1.10 was not implicated.

However, as indicated before, Petitioner takes issue
with the 1CA's failure to “directly addressf Petitioner’s]
assertion that, if a public defender’s office is to be treated as
a private law firm rather than a government office, then there
should be an imputed disqualification for all the attorneys in
the office.” 'Petitioner's contention apparently stems from his
disagreement with the 1CA's conclusion that no conflict existed,
thereby making it irrelevant in this case whether Burks, Loy, and
Marshall were part of one firm. But because there was no
relationship giving rise to a conflict under the rules, it would
make no difference whether Piko and Petitioner were represented
by attorneys within the same firm, as opposed to'a single
attorney.

Petitioner’s argument seems to be that OPD’s status as
a “single law firm” rendered its representation of Piko a matter
of “concurrent” rather than “prior” representation, because his
attorneys retained access to Piko’s files. 1n that regard,

Petitioner argues that

[t]he OPD did not close and lock up Piko’s case file. fHo]
testified that, within the OPD, there was "free sharing of
information." There was no China Wall in place. There was
no screening procedure to prevent [DPDs] from discussing

client confidences with other fDPDs] . Attorneys were free

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to go to the file room and retrieve any file, even those
that were closed.

Piko’s file was not closed forever and could be
reopened at any time. The OPD more properly characterized
it as “inactive,” rather than “closed.” Since Piko was
still on probationary status, his case could be called up at
any time -- as indeed it was,

There was an inherent conflict of interest. Ipp
[DPDs'l duty to zealously represent [Petitioner] would have
required them to dig for any impeachable evidence on PikoL
including those in their own files. This also ties in with
fOPD’s1 position that fitl should be treated as a single law
firm. The fact that OPD supposedly did not discover this
conflict until July of 2004 would indicate that fit] placed
Piko’s confidentiality above [Petitioner’s] need for the
evidence.

(Emphases added.)

Under Petitioner’s formulation, because OPD should be
treated as “a single law firm,” due to, ippp; glia, the “free
sharing of information” therein, no QPD attorney could ever
subsequently represent a client having adverse interests to a
former client albeit in an unrelated matter, because the former
client’s confidential information from the prior unrelated case
might continue to be accessible.” However, such an analysis
would render HRPC Rule l.9 a nullity, inasmuch as, as discussed
§pp;§, the rule explicitly allows subsequent representation of a
different client having interests adverse to a former client
under certain circumstances, not only by the same law firm, but
by the same attorney.

The same attorney will presumably always have access to

the files and information regarding a former client, and HRPC

w Moreover, under Petitioner’s view, subsequent representation would
always be inappropriate, regardless of whether the matters were related,
because the attorney would be obligated to use any information obtained in the
prior representation to the subsequent client’s advantage, regardless of the
impact on the former client. Such an interpretation conflicts with Rule 1.9.

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Rule l.9 acknowledges as much, thereby prohibiting “[a] lawyer
who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a_
matter ffrom] usfing] information relating to the representation
to the disadvantage of the former client . . . or

revealfing] information relating to the representationf.]” HRPC
Rule 1.9(c). As discussed above, the Commentary to Rule l.9
addresses how the degree of “access” plays into a determination
of whether confidentiality will be respected. As stated §pp;g,
the court's findings on this issue indicate that such access was
limited in this particular case.”

Because the 1CA’s conclusion that no conflict was

present in this case should be affirmed, the question of whether

OPD acted as “a single firm” for purposes of this case need not

"be addressed. However, it should be noted that the 1CA has

previously concluded that such a determination should be made on
a case-by-case basis. See Pitt, 77 Hawafi at 380, 884 P.2d at
1156 (“We agree that the case-by-case approach should be used to

analyze whether a defendant represented by a deputy public

“ A1though, technically, if OPD is considered a single law firm for
purposes of this case, “access” would hypothetically be unfettered, inasmuch
as all of the confidential information gained during Piko’s representation
would be imputed to Loy and Marshall, However, the question of access is
still relevant, inasmuch as limited access ensures that the confidentiality
aspect of Rule l.9 will not be vio1ated. Because Rule l.9 does not absolutely
prohibit a single attorney from subsequently representing a client whose
interests are in some respect adverse to those of a former client, so long as
the matters are not substantially related, and confidentiality is preserved,
“access” alone cannot be the determinative factor, because a single attorney
presumably always will have some sort of “access” to the information he or she
obtained in the previous representation.

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defender was denied his or her right to effective assistance of
counsel because of a prejudicial conflict of interest on the part
of his or her attorney.”).“ `Pitt agreed with the approach set

forth by the Court of Special Appeals of Maryland

that under the case-by-case approach, if attorneys employed
by a public defender are required to “practice their
profession side by side, literally and figuratively,” they
are considered members of a “firm” for purposes of conflict
of interest analysis regarding representation of multiple
defendants, but where the practice of the attorneys in the
office is so separated that the interchange of confidential
information can be avoided or where it is possible to create
such separation, the office is not equated with a firm and
no inherent ethical bar would be present to the office’s
representation of antagonistic interests.

1d. at 380, 884 P.2d at 1156 (quoting Graves v. State, 619 A.2d
123, 133 (Md. Ct. Spec. App. 1993)) (emphasis added). The Pitt

court determined that

fu]nder this approach a trial court is required to conduct
an evidentiary hearing to:

1. determine whether attorneys employed by the same
public defender’s office can be considered the same as
private attorneys associated in the same law firm;

2. weigh factors relating to the protection of
confidential information by considering whether there are
separate offices, facilities and personnel; and

3. determine whether, as a consequence of having
access to confidential information, [a deputy1 public
defender refrained from effectively representing a
defendant.

1d. (quoting Graves, 619 A.2d at 134) (emphases added).
Consequently, it is worth observing that the court's findings
relating to “factors relating to the protection of confidential

information” seem to indicate that information from Piko’s file

“ Any reference to a “prejudicfe]” requirement in Pitt has been
overruled by Richie.

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was not revealed at any point to Loy or Marshall.“ §pp igp

A1though the Amicus brief relies heavily on §ipp, it
should be noted that the third prong of the §ipp test, “whether,
as a consequence of having access to confidential information, [a
deputy] public defender refrained from effectively representing a
defendant[,]” igg, has been overruled by Richie. As discussed
previously, Richie held “that defense counsel’s representation is
constitutionally ineffective under the Hawafi Constitution if:
(l) a relationship giving rise to a conflict of interest existed
between defense counsel and his/her clients; and (2) either the
relationship adversely affected defense counsel’s performance, or
the client did not consent to the relationship.”_ Richie, 88
Hawafi at 44, 960 P.2d at 1252. Richie only requires a conflict
and a lack of consent as to the conflict. whether a DPD
“refrained from effectively representing a defendant” because of
possession of confidential information is no longer the
determinative factor,

Furthermore, even if Pitt were controlling, OPD did not

satisfy the third prong of the Pitt test. OPD states that Loy

had access to information contained in Piko’s confidential file,

“ As to the first prong of the Pitt test, OPD declares that it
weighs in favor of finding a conflict of interest in that the OPD was more
akin to “private attorneys associated in the same law firm” than a government
law firm. (Citing Pitt, 77 Hawafi at 380, 844 P.2d at 1156.) However, as
explained above, Pitt is no longer controlling law. Furthermore, even if it
were controlling, the 1CA assumed, as does this opinion, that OPD is a private
firm for the purposes of this analysis. Mark, 120 Hawai‘i at 532, 210 P.3d at

55.

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but refrained from using it to impeach or cross examine him
because of her duty to Piko. OPD asserts that this duty to
refrain from using confidential information interfered with her
duty to effectively represent Petitioner. However, nothing
indicates that as a result of her being able to access
information, she “refrained from effectively representing
defendant.” §ipp, 77 HawaiT_at 380, 884 P.2 at 1156.

Respondent correctly asserts that Loy would have a duty to
refrain from using confidential information to impeach Piko
pursuant to HRPC Rule l.9, regardless of whether such information
was readily available. HRPC Rule 1.9(c)(1) expressly prohibits
the “use fof] information relating to the [prior] representation
to the disadvantage of the former client[.]” Thus, Loy was
required to refrain from using confidential information, were she
privy to any. The argument that her failure to use that
information, an act prohibited by the HRPC, would result in
divided loyalties between Petitioner and Piko, creates a conflict
where none is present. As such, even under the §ipp test, OPD’s
argument is not persuasive.

F.

Although the foregoing analysis addresses most of the
arguments raised in OPD’s Amicus brief, OPD does make three other
points in arguing that the 1CA’s decision adversely affected its
interests. The first point is that “fi]f representation does

officially end when the file has been closed [], deputy public

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defenders will not only be relieved of its fsic] obligation to
assist their clientsf,] but will no longer have the legal
authority to assist fp]robationers.” 1n addressing OPD’s
assertion, Respondent notes, first, that the file is sealed and
when a defendant is sentenced¢ “no further proceedings are
scheduledf.]” Respondent states that nothing in the record
alleges that Piko actually contacted the OPD after being
resentenced or that other individuals do the same, Moreover, OPD
provides no apparent explanation as to why the 1CA’s decision
would prevent it from assisting probationers. Consequently,
OPD’s argument on this point is unpersuasive.

The second point is that the 1CA/s holding puts Loy “in
an untenable position” inasmuch as her loyalties were divided
while having to prepare for Petitioner’s case, and at the same
time upholding OPD’s “ethical obligations to Piko.” The ethical
obligations OPD refers to involves refraining from using Piko’s
confidential information. OPD’s basic assertion is that, by
obeying the prohibition that Loy not use the confidential
information in Piko’s file against him, Loy demonstrated that her
loyalties were divided between Petitioner and Piko and, thus, she
was not able to adequately represent Petitioner.

As previously noted, HRPC Rule 1.9(c)(1) states that a
lawyer shall not “use information relating to the fprior]
representation to the disadvantage of the former client.” The

rules manifestly contemplate that there may arise instances in

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which a lawyer has confidential information that was obtained
through prior representation; and although the use of that
information is prohibited, the rules do not categorically
prohibit representation of a current client whose interests are
adverse to those of the former client, provided it is not in the
“same or a substantially related matter[.]” HRPC Rule 1.9(a).
As Respondent explains, in the instant case, the DPD's “refusal
to engage in unethical conduct or conduct prohibited by law does
not place counsel in an unethical dilemma or a situation of
‘divided loyalty.'” Thus, OPD’s argument on this point is also
unpersuasive.

OPD’s final point that “distrust by the client will

likely occur if the client is aware that the fDPD] or another

_fDPD] is representing or has represented the hostile party or

witness” merits discussion. However, this contention is not
sufficient to justify a per se rule disqualifying any DPD from
serving as counsel in such cases.

There are two primary reasons why a per se rule
imputing conflicts of interest to all lawyers working at the
public defender’s office must be rejected. The first advanced by
some courts is that the same economic incentives that motivate

private firms are not present at OPD. As one court stated,

[p]ublic interest firms have no financial incentive in
retaining the cases of joint defendants who might thereby be
prejudiced. As a consequence, the public does not lose
confidence in a rule allowing attorneys in the same office
to represent joint defendants, even though a single attorney
from that office could not handle the cases. Because the
primary, if not the only, responsibility of an assistant

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public defender is to represent individual citizens in
controversy with the State . . . we can expect the public
defenders to withdraw from the case whenever joint
representation may prejudice their clients.

State v. Cook, 171 P.3d 1282, 1291 (1daho Ct. App. 2007) (citing
State v. Bell, 447 A.2d 525, 528 (N.J. 1982)) (internal quotation
marks omitted). Thus, the absence of a profit motive for
representation should restore, at least in part, confidence in a
DPD’s ability to adequately represent a party,

The second reason is that a per se rule would result in
many defendants having to go without the expert representation

provided by public defenders. As the 1llinois Supreme Court

noted:

1n many instances the application of such a per se rule
would require the appointment of counsel with virtually no
experience in the trial of criminal matters, thus raising,
with justification, the question of competency of counsel.
Balanced against this is the possibility, in most instances
quite remote, that an experienced member of the public
defender’s staff might labor under a conflict of interest
because another member of the staff was so burdened.

People v. Robinson, 402 N.E.2d 157, 162 (1ll. 1979). These two
considerations outweigh any possible chilling effect on attorney
client relationships at OPD. See also, Bolin v. State, 137 P.3d
136, 145 (wyo. 2006) (stating that, although conflicts involving.
associates at a private firm are imputed to entire firm, public
defenders office “warrants slightly different treatment[,]” and
adopting a case by case analysis); pip People v. Daniels, 802 P.2d
906, 915 (Cal. 1990) (holding that public defender did not face
conflict requiring withdrawal when, bringing collateral attack of

a defendant's conviction, public defender was required to attack

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competence of previous public defender, and stating that
“automatic disqualification . , . would hamper the ability of
public defenders' offices to represent indigents in criminal
cases”); People v. Banks, 520 N.E.2d 617, 620 (1ll. 1987)
(declining to “presume that public defenders would allow any
office allegiances to interfere with their foremost obligation to
their clients”). Hence, we decline to adopt a per se rule
imposing disqualification on a DPD absent the development of an
actual conflict.
V1.
A.
1.
1n regard to his third question, Petitioner argues that
“[t]he cumulative effect from all the pre-trial publicity combined
with the jury taint and prosecutorial misconduct denied
[Petitioner] of fsic] his right to a fair trial.” Petitioner does
not identify whether he was denied his right to a fair trial in
his first trial, his second trial, or both. However, based on his
reference to publicity, “jury taint” and “prosecutorial
misconduct” noted above, it appears Petitioner is referring to his
first trial.”
Petitioner asserts that (l) due to the fact that he was

not convicted of murder in the first degree, “the prosecution

“ These were arguments made by Petitioner in his Opening Brief
regarding the deprivation of his right to a fair trial in his first trial.

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failed to prove that [Petitioner] was aware that [Officer] Gaspar
was a law enforcement officer[,]” therefore (2) “it was a scenario
where [Petitioner] was being manhandled by three strangers[,]”
making “self-defense f] clearly applicablef,] . . . yet[ (3) the
jury] convicted [Petitioner] of murder in the second degree.”
According to Petitioner, “this was a result of the prejudicial
pretrial publicity combined with jury taint and the prosecutor's
improper inflammatory questions.”

2.

Respondent argues that “Petitioner does not appear to
challenge directly the 1CA’s assessment of each error as having no
merit” and that “the fact that the 1CA found no merit to any
single error and affirmed Petitioner’s convictions certainly
suggests the f1CA] found no cumulative effect so prejudicial as to
deny Petitioner a fair trial.” Respondent presents no other
arguments on this issue. 3

3.

1n regard to Petitioner’s first trial, the 1CA held that
because “the individual instances of error alleged by [Petitioner]
are without merit, we need not address their alleged cumulative
effect. Mgrk, 120 HawaiYi at 518, 210 P.3d at 41. As to pre-
trial publicity, the 1CA concluded that “the court's thorough voir
dire of potential jurors,” as well as “its repeated instructions
to the jurors about avoiding exposure to media coverage and its

questions to the jury confirming that they had not been exposed to

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such coverage as the case progressed, adequately protected
[Petitioner] from the potentially prejudicial effects of the
extensive publicity that this case received.” 1gp at 520-21, 210
P.3d at 43-44,

Petitioner’s allegation of “jury taint” involved an
incident prior to voir dire where potential jurors had seen a
sheriff standing “a couple of feet” behind Petitioner and, thusy
could have inferred that he “was in custody and was accordingly
dangerous.” 1gp at 521, 210 P.3d at 44, The 1CA held that “[t]he
court was able, through its voir dire, to identify and excuse

those potential jurors who were affected by their observations.”

1d. Petitioner’s claim regarding “prosecutorial misconduct”

7 related to allegedly improper questioning of Petitioner and

another witness by the prosecutor. The 1CA concluded that the
prosecutor “appeared to have a good faith basis for asking the
challenged questions” and that “fa]lthough some of the questions
could be interpreted as suggesting an improper inference, and the
objections were sustained on that ground, those questions were
ambiguous and thus did not prejudice fPetitioner], particularly
given the court's prompt curative measures.” 1gp (internal
citation omitted).
B.

Other than alleging that there was “prejudicial pre-

trial publicity,” “jury taint,” and “prosecutorial misconduct,”

Petitioner does not identify any particular error committed by the

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court. He points to no facts which would support such
allegations, and makes no discernible argument in his App1ication
related to why the pre-trial publicity was prejudicial, how the
jury was tainted, or how the prosecutor committed misconduct.
1ndeed, Petitioner appears to concede that each of these alleged
“errorfs] standing alone may be harmless[.]” Therefore, any
apparent claim by Petitioner that the alleged errors noted above
occurred may be disregarded. _p§ Norton v. Admin. Dir. of Court,
80 Hawafi 197, 200, 908 P.2d 545, 548 (1995) (stating that the
defendant “ma[de] no discernible argument in support of [his]
position, . . . fand w]e may therefore disregard this particular
contention”) (citation omitted).

As noted above, Petitioner argues that “[i]n this case,
the cumulative effect was clearly prejudicial” because “the
prosecution failed to prove that [Petitioner] was aware that
fOfficer] Gaspar was a law enforcement officer,” and “[i]f that
was the case, then it was a scenario where he was being manhandled
by three strangers[.]” According to Petitioner, “self-defense was
clearly applicable[, a]nd yet, [the jury] convicted [Petitioner]
of murder in the second degreef,]” which “was a result of” the
alleged trial errors discussed above.

However, the fact that the jury convicted Petitioner of
the lesser included offense of murder in the second degree of
Officer Gaspar, rather than murder in the first degree, does not

demonstrate that/Petitioner was denied his right to a fair trial.

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At trial,

in the first degree

1nstruction No.

murder in

The court

murder in

The court

The court

the court instructed the jury on the offense of murder

in regard to Officer Gaspar. 1n Jury

3, the court instructed the jury on the offense of

the second degree, which read as follows:

if and only if you unanimously find the prosecution has not
proven beyond a reasonable doubt all of the material elements
of Murder in the First Degree, or you are not unanimous as to
whether the prosecution has proven all of the material
elements of Murder in the First Degree beyond a reasonable
doubt, then you must consider whether the Defendant is guilty
or not guilty of the included offense of Murder in the Second
Degree.

then listed the material elements of the offense of

the second degree“:

A person commits the offense of Murder on the Second

,Degree if he intentionally or knowingly causes the death of

another person.

There are two material elements of the offense of
Murder in the Second Degree, each of which, the prosecution
must prove beyond a reasonable doubt.

These two elements are:

1. That, on or about the 4th day of March, 2003,
the City and County of Hono1ulu, State of Hawaii,
[Petitioner] caused the death of fGaspar]; and

2. That [Petitioner] did so intentionally or
knowingly.

in

also instructed the jury on self-defense, stating that

if you unanimously find that the prosecution has proven
beyond a reasonable doubt all of the material elements of
Murder in the First Degree, or of the included offense of
Murder in the Second Degree, then you must consider
whether the force used by Defendant was justifiable based
upon self-defense.

then explained the defense, and listed its elements:

Justifiable use of force or deadly force based upon
self-defense is a defense to the offenses of Murder in the
First Degree, Murder in the Second Degree, and Manslaughter
based upon reckless conduct. The burden is on the

45

Although Petitioner objected to this instruction, apparently on

the basis that it “failfed] to include justification[,]” Petitioner did not
raise this instruction as a point of error on appeal, nor does he argue it was
erroneous in his Application.

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prosecution to prove beyond a reasonable doubt that the force
used by [Petitioner] was not justifiable based upon self-
defense. .

The use of force upon or toward another person is
justified when a person reasonably believes that such force
is immediately necessary to protect himself on the present
occasion against the use of unlawful force by the other
person. The reasonableness of [Petitioner’s] belief that the
use of such protective force was immediately necessary shall
be determined from the viewpoint of a reasonable person in
[Petitioner’s] position under the circumstances of which
[Petitioner] was aware or as [Petitioner] reasonably believed
them to be. .

The use of deadly force upon or toward another person
is justified when a person using such force reasonably
believes that deadly force is immediately necessary to
protect himself in the present occasion against death,
serious bodily injury, or kidnapping, The reasonableness of
[Petitioner’s] belief that the use of such protective force
was immediately necessary shall be determined from the
viewpoint of a reasonable person in fPetitioner's] position
under the circumstances of which [Petitioner] was aware or as
[Petitioner] reasonably believed them to be.

The use of force is not justifiable to resist an arrest
which the actor knows is being made by a law enforcement
officer, although the arrest is unlawful. On the other hand,
if the law enforcement officer threatens to use or uses
unlawful force, the law regarding use of protective force
would apply.

The use of deadly force is not justifiable if
fPetitioner], with the intent of causing death or serious
bodily injury, provoked the use if force against himself in
the same encounter, ir if [Petitioner] knows that he can
avoid the necessity of using such force with complete safety
by retreating or by complying with a demand that he abstain
from any action which he has no duty to take.

1f and only if you find that [Petitioner] was reckless
in having a belief that he was justified in using self-
protective force against another person, or that [Petitioner]
was reckless in acquiring or failing to acquire any knowledge
or belief which was material to the justifiability of his use
of force against the other person, then the use of such self-
protective force is unavailable as a defense to the offense
of Manslaughter based upon reckless conduct.

Petitioner did not object to this instruction.

1n sum, the jury was properly instructed that second
degree murder was an included offense of first degree murder, and
that even if the jury found that the prosecution had proved the

elements of second degree murder beyond a reasonable doubt, the

1jury still needed to consider whether Petitioner was entitled to

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the defense of self-defense. Based on the jury's verdict, the
jury obviously found that the prosecution had satisfied its burden
of proving the elements of the offense of murder in the second
degree, and that Petitioner was not justified in using the force
involved in that offense. Beyond bare allegations, Petitioner
offers no explanation for why the jury's verdict “was a result of
the prejudicial pretrial publicity combined with the jury taint
and the prosecutor's improper inflammatory questions.” Because
(l) Petitioner has made no discernible argument in regard to any
alleged errors committed by the court and (2) the jury was
properly instructed on the offense of murder in the second degree
and the defense of self-defense, Petitioner’s claim that he was
denied his right to a fair trial is not meritorious.
V11. 9
A.

Petitioner claims that “[i]f fhis] case is remanded for
resentencing it should be solely for non-extended term
sentencing.” According to Petitioner, “he should be treated just
the same as [the defendant in State v. Maugaotega, 115 HawaiH
432, 434, 168 P.3d 562, 564 (2007), whose case was remanded for
only non-extended term sentencing.” Petitioner contends that
“fs]ince fhis] case was pending appeal at the same time as
Maugaotega, the same new rule should apply to all other ‘similarly

situated’ defendants.”

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B.
Respondent argues that Petitioner “ignores” State v.
Qp§§, 117 Hawafi 381, 4l3, 184 P.3d 133, 165 (2008), which “is
the controlling precedent the 1CA was duty bound to follow.”
According to Respondent, pursuant to Qp§§, the 1CA “correctly
determined that resentencing a criminal defendant under Act
1 is not unconstitutional and also authorizes a circuit court to
resentence the defendant under a judicially reformed version of
the prior statute governing extended term sentencing.”
C.
The 1CA discussed the relevant history of Hawaii's

extended sentencing scheme as follows:

. After the decision in Mau aote a, the legislature
amended HRS §§ 706-66l, -662, and -664 to require that a
jury, or the court if the defendant waives the right to a
jury determination, find the facts necessary to impose an
extended term of imprisonment beyond a reasonable doubt.
2007 Haw. Sess. L., 2d Spec. Sess., Act 1, § 2-4. Those
amendments applied retroactively, igp at § l, and provide
that “[a] defendant whose extended term of imprisonment is
set aside or invalidated shall be resentenced pursuant to
this Act upon the request of the prosecutorf,]” igp at § 5;
ppg fJess, 117 HawaiH.at 4l3, 184 P.3d at 165] (determining
that Act 1 is not unconstitutional).

Mg;k, 120 HawaFi at 538-39, 210 P.3d at 61-62 (some brackets in
original and some added). The 1CA held that Petitioner’s extended
sentences, which were based on findings made by the court, rather
than a jury, were “unconstitutional under Maugaotega.” 1gp at
539, 210 P.3d at 62. On remand, [Respondent] may request that
fPetitioner] be resentenced to extended terms in accordance with
Act 1, or may request the imposition of non-extended sentences.”

1d.

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D.

As concluded by the 1CA, and conceded by Respondent,
Petitioner’s extended sentences violated his constitutional right
to trial by jury. The 1CA was correct to conclude that, pursuant
to the opinion of a majority of this court in Qp§§, on remand, the
court has the discretion to empanel a jury for purposes of
resentencing on the extended term sentence.“ 1n Qp§§, a majority
of this court determined that “[t]he circuit court would not
offend the right to due process by reforming HRS § 706-662 (Supp.
1996)f"] so as to allow for jury consideration of the necessity
finding and applying that reformation to the case at hand.” 117

Hawafi at 388y 184 P.3d at 140. Jess recognized that,

“ Like Petitioner, “Jess' case was pending on appellate review at
the time Maugaotega was decided[.]” Jess, 117 HawaFi at 419, 184 P.3d at
171 (Acoba, J., dissenting). '

“ At the time Jess was sentenced, HRS § 706-662 provided, in
relevant part, that

fa] convicted defendant may be subject to an extended term
of imprisonment under [HRS §] 706-661, if the convicted
defendant satisfies one or more of the following criteria:
(l) The defendant is a persistent offender whose
imprisonment for an extended term is necessary
for protection of the public. The court shall
not make this finding unless the defendant has
previously been convicted of two felonies
committed at different times when the defendant
was eighteen years of age or older.

(4) The defendant is a multiple offender whose
criminal actions were so extensive that a
sentence of imprisonment for an extended term is
necessary for the protection of the public. The
court shall not make this finding unless:

(a) The defendant is being sentenced for two
or more felonies or is already under
sentence of imprisonment for felonyf.]

Jess, 117 Hawai‘i at 388, 184 P.3d at 140 (some bracketed material omitted).

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fi]n Maugaotega [|, this court held that HRS § 706-662 (Supp.
1996) was, in light of Cunningham v. California, 549 U.S.
270, . . . (2007), unconstitutional on its face, insofar as

every subsection “authorize[d] the sentencing court to extend
a defendant's sentence beyond the ‘standard term’ authorized
solely by the jury's verdict by requiring the sentencing
court, rather than the trier of fact, to make an additional
necessity finding that does not fall under Apprendi's
prior-or-concurrent-convictions exception[.]” Maugaotega ,
115 Hawai‘i at 446, 168 P.3d at 576 (footnote omitted).

1gp at 410, 184 P.3d at 162 (emphasis added) (ellipsis omitted).
However, in Qe§§, the majority went on to decide that the circuit
court could apply a judicially amended version of HRS § 706-662,
and thereby empanel a jury to resentence a defendant whose appeal

was pending at the time of Mau aote a 11, because

ft]here has . . . been a recent seachange in the
legislature’s clearly expressed intent regarding the wisdom
of employing juries in the context of extended term
sentencing. The enactment of H.B. No. 2 . . . during the
recent special session provides this court with a fresh,
conclusive expression of legislative support for the use of
juries as the trier of fact with respect to extended term

sentencing fact-finding and allows us to conclude with

confidence, that empaneling a jury would closely effectuate

policy judgments clearly articulated by the legislature, and
that the legislature would prefer such a reformed version of

the statute to invalidation of the statute . . . . 1n light
of the recent legislation, invocation of the court's inherent
authority in the instant matter would not unduly burden or
substantially interfere with the other branch’s exercise of
its power.

1gp at 412-13, 184 P§3d at 164-65 (quotation marks, citations,
brackets, footnote, and ellipsis omitted) (emphasis added).
lt was further determined that “[t]he circuit court may,

with respect to a properly charged defendant, empanel a jury for
determination of the necessary findings pursuant to the newly
amended versions of HRS §§ 706-661, 706-662, and 706-664[,]”
because “Act 1 of the 2007 Second Special Seasion . . . provides
in relevant part that ‘this Act shall apply to all sentencing or
resentencing proceedings pending on or commenced after the

100

***FoR PuBLIcATIoN IN wEsT's HAwAfI REP0RTs AND PAcIFIc REPoRTER***

effective date of this Act, whether the offense was committed

prior to, on, or after the effective date of this Act[,]'” and
“that ‘a defendant whose extended term of imprisonment is set

aside or invalidated shall be resentenced pursuant to this-Act
upon request of the prosecutor.’” ld; at 4l3, 184 P.3d at 165
(brackets omitted).

Respondent is correct, then, that under Qe§§, upon
remand, Respondent may move that Petitioner be sentenced to an
extended term, either pursuant to a judicially amended version of
the former version of the extended term sentencing statute under
which he was previously sentenced, or pursuant to Act 1.

VlII.

For the foregoing reasons, the May 29, 2009 judgment of

the ICA affirming Petitioner’s convictions is affirmed, and his

case is remanded for resentencing.

DwiQht C.H. Lum for §§%ZzO%¢p"
petitioner/defendant~
appellant' #X¢»4aCl 7NM#$MjOJTwt

Donn R. Fudo, Deputy
Prosecuting Attorney,
City and County of /§z 62¢,vF1;u*n`§Q\
Honolulu, for respondent/

plaintiff-appellee. QZwa€.lL@@4qV
On the brief: l » h
¢@¢,..,./.¢_____.

James S. Tabe, Deputy
Public Defender, for
amicus curiae
Office of the Public
Defender;

101