81 Hawai'i 147, State v. DeCastro
| Decision Date | 14 March 1996 |
| Docket Number | No. 16540,16540 |
| Citation | 913 P.2d 558 |
| Parties | 81 Hawai'i 147 STATE of Hawai'i, Plaintiff-Appellee, v. Robert DeCASTRO, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
1. The defendant alleges that while driving on the H-2 freeway at about 12:30 p.m. on Wednesday, December 18, 1991, and accompanied by his male employee, he observed a police officer nearly cause a four-car accident while pursuing a speeding motorist. After the officer stopped the speeding motorist, the defendant stopped his van about four car lengths behind. The officer, suspecting that the two men in the van were friends of the speeding motorist, approached the van to investigate. The defendant alleges that during his conversation with the officer, the officer challenged him and his employee to a fight. The officer then obtained defendant's driver's license, as well as defendant's vehicle registration and insurance card, and told defendant to wait while the officer returned to his patrol car. While waiting, the defendant used his cellular telephone to call and tell a 911 operator what had happened and was happening. After the defendant told the 911 operator that he wanted to go to his warehouse and the operator could send a policeman there, the operator said, After the defendant told the operator that the officer would chase the defendant if he left, the operator said The defendant continued his conversation with the 911 operator and drove off. The officer pursued the defendant and, with the assistance of other police officers, stopped and arrested him. The defendant was charged and convicted of Resisting an Order to Stop a Motor Vehicle.
2. This opinion concludes that (1) the 911 operator's permission was not "an official statement of the law, ..., contained in: ... [a]n ... administrative grant of permission" Appeal from the District Court of the First Circuit, 'Ewa Division, Honolulu County (Case No. CT5 of 7/29/92).
[81 Hawai'i 149] that, under Hawai'i Revised Statutes § 702-220(3) (1985), would have established the affirmative defense of a reasonable but mistaken belief that the conduct was not legally prohibited; and (2) the circuit court did not err when it decided that the State had satisfied its burden of proof with respect to defendant's choice of evils justification defense.
Richard Crisman Linstrom (Law Offices of Richard C. Linstrom, of counsel), on the brief, Honolulu, for defendant-appellant.
Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and WATANABE, J.
Defendant Robert DeCastro (DeCastro) appeals the October 7, 1992 Judgment entered by the District Court of the First Circuit convicting him of Resisting an Order to Stop a Motor Vehicle, Hawai'i Revised Statutes (HRS) § 710-1027(1) (1985), which states as follows:
(1) A person commits the offense of resisting an order to stop a motor vehicle if he intentionally fails to obey a direction of a peace officer, acting under color of his official authority, to stop his vehicle.
The district court sentenced DeCastro to probation for one year and ordered him to contribute $100 to the State General Fund. Execution of the sentence was stayed pending this appeal.
We affirm.
DeCastro asserted two defenses at trial: (1) the mistake of law defense authorized by HRS § 702-220 (1985) and (2) the choice of evils justification defense authorized by HRS § 703-302 (1985).
DeCastro owns Town and Country Moving headquartered in Kalihi. On Wednesday, December 18, 1991 at about 12:30 p.m., while returning to his warehouse from a delivery in Wahiawa, DeCastro drove his van (Van) in the Koko Head (southeasterly) direction on the H-2 freeway. DeCastro's employee, Westley Damas (Damas), was a passenger in DeCastro's Van. Near the Mililani exit, DeCastro and Damas observed police officer Derek Rodrigues (Officer Rodrigues) in a Honolulu Police Department blue and white vehicle (No. 734) nearly cause a "four car accident" while pursuing a speeding motorist later identified as George Hernandez (Hernandez). Hernandez had no passenger in his vehicle. After Officer Rodrigues had stopped Hernandez to issue him a citation for speeding, Officer Rodrigues noticed a white van stop about four car lengths behind his patrol car. Officer Rodrigues saw DeCastro in the driver's seat and Damas in the passenger's seat of the Van.
DeCastro testified that he stopped because he believed Officer Rodrigues had driven his police car in a reckless manner. DeCastro remained in the Van and noted the license plate numbers of Officer Rodrigues' and Hernandez' vehicles.
The Van's presence aroused Officer Rodrigues' suspicions that its occupants were friends of Hernandez. This prompted Officer Rodrigues to approach the driver's side of the Van and ask, "Oh. You with those guys up there?" DeCastro replied,
At this point, the State and DeCastro dispute what happened. DeCastro and Damas testified that, while holding his baton or nightstick in his hand, Officer Rodrigues made the following statement: DeCastro admitted that at no point did Officer Rodrigues strike DeCastro or the Van with his baton. Nor did Officer Rodrigues wave his baton in the air or swing it at DeCastro. DeCastro testified that upon hearing Officer Rodrigues' statement, both he and Damas chuckled.
Nevertheless, DeCastro contends Officer Rodrigues' statement led him to be concerned for his and Damas' safety. Thereafter, Officer Rodrigues demanded DeCastro's license, and vehicle registration and insurance card, which DeCastro willingly provided. Officer Rodrigues then ordered DeCastro to "wait" while Officer Rodrigues returned to his patrol car.
Immediately after Officer Rodrigues walked away, DeCastro dialed 911 on his cellular phone. Unable to get through, DeCastro called his wife, Lisa Rodrigues, to arrange a conference call with the 911 operator. The transcript of the "911" conversation between the 911 operator and DeCastro discloses the following:
OPERATOR: You need a police?
DeCASTRO: No, I no need a police. I'm being harassed by a policeman.
OPERATOR: Hah?
DeCASTRO: I'm being harassed by a policeman.
OPERATOR: Where is the policeman?
DeCASTRO: Where are we in between?
OTHER: Waipio [Waipi'o] and Mililani.
DeCASTRO: Waipio [Waipi'o] and Mililani, and he's--I hope someone comes fast. He went ask us if, uh, we like fight with him.
DeCASTRO:--to get his, uh, license plate.
OPERATOR: What is it?
DeCASTRO: And now he's out here with his nightstick.
OPERATOR: What is it?
DeCASTRO: You know what, I just--I should just go to my warehouse already.
DeCASTRO: H-P-D.
OPERATOR: "T" as in "Tom"?
DeCASTRO: Right.
OPERATOR: "D?"
DeCASTRO: H-P-D 734. This guy wants to fight us.
OPERATOR: You want the police right now?
DeCASTRO: Uh, well, I like just go to my warehouse, and you can send a policeman over there.
OPERATOR: Okay. When you get to the warehouse, call back.
DeCASTRO: You know what, he's gonna chase me once I leave.
OPERATOR: No, go ahead and just, uh, we got the license.
DeCASTRO: You got 'um?
OPERATOR: Yeah. Just go to the warehouse, and then call back.
DeCASTRO: Okay.
OPERATOR: Okay.
* * * * * *
DeCASTRO: Now he's in back of me, and he wants to pull me over. And this guy wants to fight with me.
OPERATOR: Is he--is--is--well, do you wanna stay on the line?
DeCASTRO: Yeah, I wanna stay on the line. I want another policeman. I want another policeman at my warehouse 'cause I'm not gonna pull over.
* * * * * *
I'm afraid if I pull over, he's--he's gonna arrest me, or what do you want me to do?
OPERATOR: I don't know. Is he in a blue-and-white?
* * * * * *
DeCASTRO: He's in a blue-and-white. I want a policeman at 94-478 Ukee ['Uke'e] Street.
OPERATOR: But are you there now?
DeCASTRO: No, I'm on the freeway.
* * * * * * DeCASTRO: Yeah, about an officer who I pulled over on the side of the road. I pulled him on the side of the road to take his license-plate number down. He asked me if I wanted to fight, and he came out with his nightstick.
SUPERVISOR: He couldn't be an officer.
* * * * * *
DeCASTRO: Now there's three of 'um.
* * * * * *
DeCASTRO: Now, now they're all coming out with their clubs. All of them have their clubs.
* * * * * *
DeCASTRO: They all have their billy clubs out.
* * * * * *
DeCASTRO: Now they're arresting me. Get--get the--get the chief--get the chief over here.
The State's evidence showed that before Officer Rodrigues returned to the Van, DeCastro drove it off in the same direction he was heading before he had stopped. Officer Rodrigues gave chase, using his automobile's horn, siren, and flashing lights, while maintaining a distance of about two car lengths behind DeCastro. Officer Rodrigues simultaneously called dispatch to inform them that he was pursuing DeCastro and asked for a backup unit to assist him. During the chase, Officer Rodrigues observed DeCastro "look in his rearview mirror at least ten times."
At about the same time, police officer Richard Grilho (Officer Grilho) was on the H-2 freeway heading in the same direction as Officer Rodrigues when he observed Officer Rodrigues trying to pull over DeCastro. Officer Grilho continued to "shadow" the chase to see if...
To continue reading
Request your trial
-
State v. Jim
...from the "common law" formulation as set forth in State v. Kealoha, 9 Haw.App. 115, 826 P.2d 884 (1992), and State v. DeCastro, 81 Hawai'i 147, 913 P.2d 558 (App.1996), because they were superseded by the adoption of the Hawai'i Penal Code in As a general rule, jury instructions to which no......
-
90 Hawai'i 96, State v. Maumalanga, No. 20146
...or evil sought to be avoided was greater than the harm or evil generated by the crime committed. State v. DeCastro, 81 Hawai'i 147, 153, 913 P.2d 558, 564 (App.1996) (Acoba, J., concurring). We further reiterated our holding in Kealoha with respect to requirement (1) above, a person does no......
-
90 Hawai'i 96, State v. Maumalanga
...or evil sought to be avoided was greater than the harm or evil generated by the crime committed. State v. DeCastro, 81 Hawai'i 147, 153, 913 P.2d 558, 564 (App.1996) (Acoba, J., concurring). We further reiterated our holding in Kealoha with respect to requirement (1) above, a person does no......
-
State Of Haw.‘i v. Mark
... ... State v. Pavao, 81 Hawai‘i 142, 145, 913 P.2d 553, 556 (App.1996). As to the counts in ... Pavao, 81 Hawai‘i at 147, 913 P.2d at 558. Because under the circumstances as ... day of March, 2003, in the City and County of Honolulu, State of Hawaii, [Petitioner] caused the death of [Gaspar]; and 2. That [Petitioner] did ... ...
-
§ 13.02 When Mistake-of-Law Is a Defense: Exceptions to the General Rule
...v. Twitchell, 617 N.E.2d 609 (Mass. 1993).[39] See Miller v. Commonwealth, 492 S.E.2d 482 (Va. Ct. App. 1997).[40] State v. DeCastro, 913 P.2d 558 (Haw. Ct. App. 1996). [41] Commonwealth v. Twitchell, 617 N.E.2d 609 (Mass. 1993).[42] See Haggren v. State, 829 P.2d 842 (Alaska Ct. App. 1992)......
-
§ 13.02 WHEN MISTAKE-OF-LAW IS A DEFENSE: EXCEPTIONS TO THE GENERAL RULE
...v. Twitchell, 617 N.E.2d 609 (Mass. 1993).[40] . See Miller v. Commonwealth, 492 S.E.2d 482 (Va. Ct. App. 1997).[41] . State v. DeCastro, 913 P.2d 558 (Haw. Ct. App. 1996).[42] . Commonwealth v. Twitchell, 617 N.E.2d 609 (Mass. 1993).[43] . See Haggren v. State, 829 P.2d 842 (Alaska Ct. App......