State v. Mainaaupo

• Decision Date: 05 March 2008
• Docket Number: No. 27969.,No. 27764.,27764.,27969.
• Citation: 178 P.3d 1,117 Hawai'i 235
• Parties: STATE of Hawai`i, Plaintiff-Appellee-Respondent v. William MAINAAUPO, Jr., Defendant-Appellant-Petitioner. State of Hawai`i, Plaintiff-Appellee-Respondent v. Mark K. Lopez, Defendant-Appellant-Petitioner.
• Court: Hawaii Supreme Court

178 P.3d 1 117 Hawai'i 235 STATE of Hawai`i, Plaintiff-Appellee-Respondent
v.
William MAINAAUPO, Jr., Defendant-Appellant-Petitioner.
State of Hawai`i, Plaintiff-Appellee-Respondent
v.
Mark K. Lopez, Defendant-Appellant-Petitioner. No. 27764. No. 27969. Supreme Court of Hawai`i. March 5, 2008.

[178 P.3d 4]

James S. Tabe, Deputy Public Defender (DPD), for the defendant-appellant-petitioner William Mainaaupo, Jr.

Donn Fudo, Deputy Prosecuting Attorney (DPA), for the plaintiff-appellee-respondent State of Hawai`i in No. 27764.

Karen T. Nakasone, DPD (Katie L. Lambert, DPD, on the briefs), for the defendant-appellant-petitioner Mark K. Lopez in No. 27969.

Brian R. Vincent, DPA (Daniel H. Shimizu, DPA, on the briefs), for the plaintiff-appellee-respondent State of Hawai`i in No. 27969.

[178 P.3d 5]

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and ACOBA, J., concurring and dissenting separately.

Opinion of the Court by LEVINSON, J.

On December 7, 2007, the defendant-appellant-petitioner Mark K. Lopez filed an application for a writ of certiorari, urging us to review the memorandum opinion (mem. op.) of the Intermediate Court of Appeals (ICA) in State v. Lopez, No. 27969, 2007 WL 2430155 [hereinafter, "ICA's Lopez mem. op."], and, on December 11, 2007, the defendant-appellant-petitioner William Mainaaupo, Jr., filed an application for a writ of certiorari, asking us to review the ICA's memorandum opinion in State v. Mainaaupo, No. 27764, 2007 WL 2576952 [hereinafter, "ICA's Mainaaupo mem. op."]. Although these cases are factually unrelated, they share a common legal question: Whether the ICA erred in concluding that the circuit court of the first circuit¹ correctly declined to instruct the jury on the mistake-of-fact defense, as provided by Hawai`i Revised Statutes (HRS) § 702-218 (1993),<sup>2</sup> in relation to charges of the offense of unauthorized control of a propelled vehicle, in violation of HRS § 708-836 (Supp.2001),<sup>3</sup> where the defendant claims a mistaken belief that the person who authorized his use of the vehicle was the registered owner of the vehicle. Beyond this shared issue, Mainaaupo argues that the ICA gravely erred in concluding that the circuit court correctly instructed the jury that, under HRS § 708-836, the defendant has a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle. And Lopez contends that the ICA gravely erred in concluding that the remarks during closing argument by the plaintiff-appellee-respondent State of Hawai`i [hereinafter, "the prosecution"] regarding Lopez's post-arrest silence and his failure to produce a critical defense witness to corroborate his testimony were legitimate comment on the evidence and not misconduct. We accepted Lopez's and Mainaaupo's applications on January 18, 2008 and consolidated the cases for disposition the same day.

For the reasons discussed herein, we hold (1) that the circuit court erred in declining to give Lopez's and Mainaaupo's mistake-of-fact jury instructions, (2) that the circuit court erred in instructing the jury that Mainaaupo had a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle, (3) that the prosecution's comments regarding Lopez's post-arrest silence were improper, and (4) that the prosecution's comments regarding Lopez's failure to produce a critical defense witness were not improper. Accordingly, we vacate the judgments against Lopez and Mainaaupo and remand their cases for new trials.

I. BACKGROUND

A. Background In Lopez

1. Factual background

In May and June 2005, Gregory S. Gittens and Mona S. Gittens were the registered owners of an automobile, a 1995 Honda Accord, and their son, Brian Harris, was the primary driver. Gregory and Harris each had a set of keys to the car, neither of which

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was ever lost. Aside from some damage to the front of the car, the car was in "pretty good" condition; its door locks and steering column were not damaged, and an after-market sound system, the initial cost of which was between $300.00 and $400.00, was installed in it.

At around 5:00 p.m. on May 31, 2005, Harris drove the car to his workplace at Bandito's Cantina in the Pearlridge Center, located in the City and County of Honolulu, parked the car in the mall's parking lot, locked the doors, and went to work. He left some clothes, his wallet, and over one hundred compact discs in the car. Harris finished work at about 9:00 p.m. only to discover that the car was gone. He contacted security guards and the police, reporting that the car had been stolen.

Shortly after midnight, at approximately 12:45 a.m. on June 8, 2005, Honolulu Police Department (HPD) Officer Edward Hawkins was in a police cruiser at Wai'anae Mall, employing a laser device to identify and stop drivers speeding on Farrington Highway. Using the laser device, he observed a car traveling sixty miles an hour in a thirty-five mile-per-hour zone. Officer Hawkins pursued the car and activated his cruiser's blue lights and siren, and the car pulled over immediately. Officer Hawkins exited the cruiser and approached the car to find Lopez behind the wheel. Lopez provided his Washington State driver's license but was unable to produce either the vehicle's registration certificate or any proof of insurance. Lopez stated that the car belonged to a friend and that he did not know where the paperwork was located.

Officer Hawkins instructed Lopez to turn off the vehicle's ignition and, in response, Lopez retrieved what appeared to be a house key from his pocket, put his hands underneath a towel on the steering column for fifteen to twenty seconds, and turned off the ignition. Deeming the towel suspicious, Officer Hawkins called dispatch, ran a check on the vehicle's license plate number, and was informed by dispatch that the car was stolen. The officer ordered Lopez out of the car, handcuffed him, and placed him under arrest for driving a stolen vehicle. The record does not reflect whether Officer Hawkins, or any other police officer, administered warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), during or after the arrest. Officer Hawkins processed the car, removing the towel and observing that all of the plastic around the steering column was gone, such that he could see its internal mechanisms. HPD Officer Kepi Visoria, who assisted in processing the car, noticed that the ignition was broken and dangling and that the door locks had been "punched," which means that the locks had been shoved in with a blunt object, such as a screwdriver, in order to open the doors.

The police returned the car to Harris, whereupon he noticed that, in addition to the other damage, the compact discs, the sound system, and Harris's wallet were missing, and a door window was "flexed," which is a method by which a person breaks into a car by flexing a window so that he can place his hand through the window and open the door. Harris never gave Lopez, or anyone else, permission to drive the car at any time, and Gregory and Mona, the vehicle's owners, likewise never authorized Lopez, or anyone other than Harris, to drive the car.

2. Proceedings in the circuit court

a. Charging

On June 17, 2005, Lopez was charged by complaint with intentionally or knowingly exerting unauthorized control over a propelled vehicle, by operating the vehicle without the consent of Gregory and/or Mona, the owners of the vehicle, thereby committing the offense of unauthorized control of a propelled vehicle, in violation of HRS § 708-836, see supra note 3.

b. Trial

At the February 1, 2006 trial, the prosecution called Harris, Gregory, Mona, and Officers Hawkins and Visoria as witnesses during its case-in-chief. On cross-examination by Lopez, Officer Hawkins affirmed that, when he stopped Lopez for speeding, Lopez was calm and cooperative and that, when he asked for Lopez's license, registration, and insurance, Lopez told him that "the car belongs

178 P.3d 7

to a friend and he doesn't know where the paperwork is." On redirect examination by the prosecution, the officer testified that Lopez did not volunteer his friend's name or address or the means by which he acquired control of the car from his friend. The deputy prosecuting attorney (DPA) asked, "Did he say anything at all about this friend except [']well, I got it from a friend, I don't know where the paperwork is[']?," to which Officer Hawkins responded, "That's all he said." On recross-examination, the officer admitted that he could not recall whether he had asked Lopez for his friend's name and other pertinent information.

After the prosecution rested, Lopez testified on direct examination that he had grown up in Hawai`i and, in June 2005, he had returned to the islands from Seattle to visit friends and family for a couple of weeks. He acquired the Honda from a friend, Greg Ramba, an automotive mechanic who he had known for approximately two years. When Lopez arrived at Ramba's house, he noticed four or five cars parked in the driveway. Ramba offered to let Lopez use one during his two-week stay. Lopez observed that the car's exterior was damaged in the front, that its interior was very dirty and filled with rubbish, that its steering column was missing and covered by a towel, and that its ignition was broken, but he did not notice that the door locks were punched in. Lopez believed that the car was abandoned but did not find its poor condition suspicious because Ramba was simply a "broke mechanic." Ramba gave Lopez a key to the car. Lopez testified that he did not know that the car was stolen until he was pulled over by Officer Hawkins.

On cross-examination, Lopez admitted that he had neither seen nor asked to see any paperwork for the car and that the car key he received from Ramba was not the actual key to the car, because it looked like a house key. When questioned about Ramba, Lopez claimed that Ramba...