89 Hawai'i 177, State v. Hanapi, 19746
| Decision Date | 20 November 1998 |
| Docket Number | No. 19746,19746 |
| Citation | 89 Hawaii 177,970 P.2d 485 |
| Parties | 89 Hawai'i 177 STATE of Hawai'i, Plaintiff-Appellee, v. Alapai HANAPI, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Brian K. Nakamura, on the briefs, Honolulu, for defendant-appellant.
Moana M. Lutey, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.
Defendant-appellant Alapai Hanapi appeals from his conviction of and sentence for criminal trespass in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 708-814(1)(a) (1993). 1 On appeal, Hanapi contends that his conviction should be reversed because: (1) the district court committed reversible error when it excluded relevant evidence and testimony in support of his constitutionally protected native Hawaiian rights; and (2) there was insufficient evidence to convict him because the prosecution failed to negative his native Hawaiian rights claim. Because Hanapi failed to show that his conduct constituted protected constitutional activity, we affirm his conviction of and sentence for criminal trespass in the second degree.
Hanapi and his wife, Louise, assert that they are "native Hawaiian artists and cultural practitioners who work, live, and reside on the ancestral family kuleana within the ahupua'a of 'Aha'ino on the island of Moloka'i." Adjoining the Hanapis' property are twin fishponds popularly called Kihaloko and Waihilahila. Hanapi maintains that "for generations [his] family and ... ancestors have practiced traditional native Hawaiian religious, gathering, and sustenance activities in and around the fishponds."
Gary Galiher purchased the land next to the Hanapis' property. Galiher subsequently fenced the property and allegedly began to grade and fill the area near the ponds with the apparent intention of building a boat landing. 2 The Hanapis viewed Galiher's grading as "the desecration of [a] traditional ancestral cultural site" and allegedly voiced their objection, first with Galiher and then to the U.S. Army Corps of Engineers (COE).
The COE determined that a "wetlands violation" occurred and entered into an agreement with Galiher to restore the property. 3 The COE agreed to a voluntary, unsupervised restoration of the property, subject to the advice and oversight of a consultant/archaeologist. Galiher hired Aki Sinota, an archaeologist, and Vernon Demello, the on-site supervisor, to remove the fill and restore the property.
The restoration took place on August 14-16, 1995. The work consisted principally of removing the fill and regrading the land with a bulldozer. For the first two days, Hanapi 4 entered the property without incident to observe and monitor the restoration.
On the third day, Demello told Hanapi that he was not to enter the property. Ignoring the warning, Hanapi entered the property and allegedly observed demello using a bulldozer to push the fill into a "punawai," or fresh water spring. Hanapi believed the destruction of the "punawai" was not consistent with the restoration ordered by the COE and complained to Sinota. Sinota explained to Hanapi that the water was not a spring, but actually water that had collected in a hole left by an uprooted tree. During this discussion, Demello approached Hanapi and ordered him off the property. When Hanapi refused to leave, police were called and arrested Hanapi for criminal trespass in the second degree, in violation of HRS § 708-814.
Trial commenced in the District Court of the Second Circuit on November 14, 1995, with Hanapi appearing pro se. At trial, Galiher stated that he employed Demello as a foreman to maintain and operate equipment on his land and "take[ ] on assignments as I give him." Galiher also testified that he gave Demello the authority to exclude people from his enclosed property.
Demello testified that on August 16, 1995, when Hanapi came onto Galiher's property he asked him to leave the premises. Hanapi refused Demello's request and the police were called. Demello stated Hanapi was arrested and removed from the premises.
As part of Hanapi's defense, he called his wife, Louise, to testify on his behalf. Hanapi first asked Louise if she knew what was happening on Galiher's premises the day he was arrested. Louise responded that "[t]here was a wetland [s] violation that was issued by the ... [COE] ... to restore the wetland area [on Galiher's property]." The prosecutor objected on the grounds of relevance. Hanapi advised the court that he was "trying to establish [his] rights [as a native tenant] ... on the land regardless of whether Mr. Galiher ... owned it or not[.]" The court sustained the prosecution's objection and told Hanapi,
Hanapi persisted in his attempt to assert his constitutional rights as a native Hawaiian tenant and sought to elicit further testimony from Louise concerning the native Hawaiian right being claimed by him at the time of his arrest. The following colloquy took place:
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Despite several adverse rulings, Hanapi continued to question Louise about the moral obligation native Hawaiian tenants have to the land.
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Following Hanapi's unsuccessful questioning, Hanapi testified on his own behalf. In a narrative form, Hanapi stated:
We are adjacent land owners. We're native tenants of the ahupua'a. We are also legal land owners and we enjoy the rights mandated by the state constitution, [a]rticle 12 and HRS [sections] 1-1 [and] 7-1 which allows us access for gathering reasons, for religious purpose and also to--we have--as native tenant we also have a moral responsibility and obligation to protect our natural resources. This is an undeveloped ahupua'a. We subsist in this ahupua'a, what I mean by subsisting is subsist off the water, the fishpond, the ocean, the springs[,] and also mauka side.
So, when this restoration was taking place the family was of course concerned that it would be done appropriately and done right,...
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