89 Hawai'i 371, State v. Ross, 20901

Citation89 Hawaii 371,974 P.2d 11
Decision Date09 December 1998
Docket NumberNo. 20901,20901
Parties89 Hawai'i 371 STATE of Hawai'i, Petitioner-Appellee, v. Henry ROSS, Respondent-Appellant.
CourtSupreme Court of Hawai'i

Caroline M. Mee, Special Deputy Prosecuting Attorney, on the briefs, for petitioner-appellee.

Jon N. Ikenaga, Deputy Public Defender, on the briefs, for respondent-appellant

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ, and Circuit Judge NAKATANI in place of KLEIN, J., recused.

Opinion of the Court by NAKAYAMA, J.

We granted certiorari to review the memorandum opinion of the Intermediate Court of Appeals (ICA), filed on August 27, 1998. The ICA vacated the trial court's conviction of respondent-defendant-appellant Henry Ross (Ross) on one count of harassment and remanded for a new trial. The ICA also held that: 1) the complaint sufficiently apprised Ross of the charges against him; 2) the trial court denied Ross his right to presentence allocution; 3) the trial court improperly considered Ross's purported inability to pay a fine as a factor in imposing a jail sentence; and 4) there was sufficient evidence to support Ross's conviction. In its petition for writ of certiorari, petitioner-plaintiff-appellee State of Hawai'i (the prosecution) challenges solely the ICA's holding that the trial judge's failure to disqualify himself constituted reversible error. For the reasons stated below, we reverse the portion of the ICA's opinion vacating Ross's conviction based on the holding that the trial judge erred by failing to recuse himself. Because that was the sole issue raised by the prosecution on its petition for writ of certiorari, we affirm the ICA's opinion in all other respects. Ross's conviction thus stands, although his sentence remains vacated. Accordingly, we remand for resentencing of Ross before a new sentencing judge.


On November 3, 1995, the prosecution filed a written complaint charging Ross with the offense of harassment for conduct during an incident occurring in a KTA store in Kamuela, Hawai'i, on September 14, 1995. The initial facts of the incident are undisputed. Ross went to the KTA store to buy cough drops. The cash register rang up the cough drops as $1.69 instead of the $1.23 price indicated on the display sign, and Ross protested. The cashier, Beau Schutte, offered to give Ross the sale price and sought confirmation from her manager.

At this point, the testimony at trial diverged. Schutte claimed that Ross, perturbed by the delay, yelled at her and yanked her arm several times by her wrist and forefinger. Ross maintained that Schutte initiated the contact and he grabbed her arm to protect himself. Several other store employees testified to their perceptions of the incident, and several police officers testified to comments volunteered by Ross while in custody.

During pretrial proceedings, Ross repeatedly called for the recusal of the district court judge, Judge Choi, by written and oral motion. Ross first filed a motion on April 23, 1996, requesting recusal of Judge Choi on the grounds that he had, while in private practice, represented Ross's "opponents," several Hawai'i County Council members, in a suit alleging ethical misconduct brought by Ross in 1983. The judge denied the motion, stating in the May 1, 1996 hearing:

If it is any interest to you, Mr. Ross, I didn't even recall the incident to which you referred until you brought it up. At any rate, [it] has absolutely no bearing on the Court's position or attitude in these proceedings.

On June 3, 1996, Ross filed a motion for the disqualification of Judge Choi, complaining at length about, inter alia, the treatment he received from the police, the vagueness of the charges brought against him, the jurisdiction of the prosecutor assigned to the case, and various adverse rulings made by the judge concerning these matters. On June 21, 1996, the judge heard oral argument on the motion and denied it on the merits. In denying Ross's motion, the judge noted that "the recusal order is in a sense moot because your trial is gonna be conducted with a different judge anyway."

On April 17, 1997, Ross filed a petition in this court for a writ of prohibition against Judge Choi, which this court denied on May 17, 1997. At a hearing on April 30, 1997, while the petition was still pending, Ross orally restated his motion for Judge Choi's recusal, claiming that he should not preside over the case during the pendency of the petition. The district court denied the motion, stating that "the Court is not going to recuse ... certainly not on the basis of ... the application for the writ." The judge then noted that he served as cotrustee for the Hilo Boarding School with one of the subpoenaed witnesses, Barry Taniguchi, the president of KTA Stores, but concluded that recusal was unnecessary.

There is one other item that I ... do wish to put on the record. In reviewing the file, I notice that although Barry Taniguchi's name was not listed on the list of witnesses submitted by the defense, that there is a subpoena in the file for Mr. Taniguchi. I can only surmise that the subpoena is probably there for the purpose of trying to obtain some kind of records. I'm not sure just exactly what role, if any, Mr. Taniguchi would play in this. My review of the records doesn't suggest any direct role for him. But the record should reflect that I am ... one of the trustees of the Hilo Boarding School, and Mr. Taniguchi is also a trustee of the Hilo Boarding School.

If we had a situation in which [I] may ... feel uncomfortable about ruling on making a ruling in the case, I would immediately recuse myself. I do not at this juncture see any reason to recuse myself so ... I'm not going to do that at this point. But I just wanted to make you aware that situation exists and that I've considered it.

At hearings on May 6 and May 27, 1997, Ross again requested that Judge Choi recuse himself. In support of his May 27 request, Ross referred to the judge's relationship to Barry Taniguchi. Ross also raised, as an additional basis for disqualification, Judge Choi's periodic sales of fish to KTA that he catches under his commercial fishing license. Acknowledging that he sells fish to KTA perhaps twelve times a year at a market price determined by auction, the judge ruled that neither the sales nor his relationship with Taniguchi required his recusal.

First of all, let's get to the issue of recusal.... [A]s the Court indicated at a prior hearing,[ 1] it is true that I do occasionally sell fish catch to KTA Supermarket. It's on an occasional basis. Probably something on the order of 12 times a year or something. It's not a significant income. It's incidental and the Court ... has not one iota of doubt as to whether or not I'd be able to render a decision without regard to that, the fishing. The fish is sold at market price which is established by the auction, and I could sell it at the auction or wherever it's sold. Since it doesn't make all that much difference financially, the Court feels that there's not a real reason for recusal.

I have indicated that if Mr. Taniguchi himself were going to be a percipient witness ... calling upon credibility, then that might raise a more serious concern. My understanding is that his involvement in the case, if any, would be as custodian ... of records or having to do with internal procedures or situation within KTA rather than as a percipient witness to the event.

If there's some reason to believe that he was going to be a percipient witness, then I would recuse myself. But I don't see anything like that on the record.


Mr. Ross, let's not get too far [a]field. I understand the argument. I've considered it. From the Court's standpoint, the level of concern would be somewhat on the order of: I shop at KTA, I like their sales; and that argument would be well, to the extent that it jeopardizes KTA's financial well-being, maybe their sale prices wouldn't be as high and I wouldn't be able to save as much money. And it's on that order of magnitude the concern is so minimal that the Court just doesn't feel that there's any basis for concern. I have no stock in the company. Actually, I don't even really know what Mr. Taniguchi's position is with KTA other than that he has some elevated position of some kind. And KTA is not party to these proceedings. I understand the concern. That's why I raised it from my ... side of the bench so to speak. Let's move on, okay.

At the conclusion of the trial, on July 10, 1997, the trial court found Ross guilty as charged. After an exchange with Ross over the appropriate penalty, the court sentenced Ross to thirty days jail, 29 days suspended because of Ross's poor health. In his explanation of the sentence, the judge noted that, as Ross demonstrated his inability to pay a fine in his continuous requests for exemptions from court fees, he would impose a jail term. The judge also commented as follows:

THE COURT: Mr. Ross, I'm sorry if I miscommunicated. Let me try to explain it to you again. In deciding what kind of sentence is appropriate--

MR. ROSS: Yes. THE COURT:--the attitude of the defendant is very important. In other words, if the defendant is genuinely contrite about what they have done, if they're genuinely sorry, it makes a big difference.

If we have a defendant who stands before the court defiant to the end, we sentence accordingly. And it's the Court's view that you have exhibited overpowering arrogance through this whole proceeding, and it has not abated; and the Court's view is that the sentence should reflect that.

Your testimony is not credible. [T]here have been all kinds of dilatory motions. I can't think of a case ... that calls ... more appropriately for having you sentenced to a full jail term. And as I ... indicated, the only reason I'm suspending a portion of it is because of your health.[ 2

Ross timely appealed. On appeal, Ross argued, inter alia, that Judge Choi...

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