82 Hawai'i 499, State v. Timas
| Decision Date | 27 February 1996 |
| Docket Number | 16270 and 16363,Nos. 16262,s. 16262 |
| Citation | 82 Hawaii 499,923 P.2d 916 |
| Parties | 82 Hawai'i 499 STATE of Hawai'i, Plaintiff-Appellee, v. David TIMAS, also known as "Jay", Defendant-Appellant, and Louise M. Nelson, also known as "Louise", Archie Grant III, also known as "Archie", Francis Y. Mori, also known as "Mark", Vicki L. Himmelmann, also known as "Vicky", and Gregory King, also known as "Baby G", Defendants. STATE of Hawai'i, Plaintiff-Appellee, v. Francis Y. MORI, also known as "Mark", Defendant-Appellant, and David Timas, also known as "Jay", Louise M. Nelson, also known as "Louise", Archie Grant III, also known as "Archie", Vicki L. Himmelmann, also known as "Vicky", and Gregory King, also known as "Baby G", Defendants. STATE of Hawai'i, Plaintiff-Appellee, v. Archie GRANT, III, also known as "Archie", Defendant-Appellant, and David Timas, also known as "Jay," Louise M. Nelson, also known as "Louise", Francis Y. Mori, also known as "Mark", Vicki L. Himmelmann, also known as "Vicky", and Gregory King, also known as "Baby G", Defendants. |
| Court | Hawaii Court of Appeals |
1. On six different occasions, an undercover police officer purchased a substance containing cocaine and weighing one-eighth ounce or more. All six transactions involved defendant Timas. Two of the six transactions involved defendants Mori and Grant. Timas, Mori, and Grant relied on the affirmative defense of entrapment, alleging that the police exploited their drug addiction to cause them to make drug purchases for the police in class A felony amounts and then prosecuted them for having made the purchases. This opinion decides that the evidence permitted a reasonable mind to fairly conclude that Timas and Mori had not sustained their burden of proving entrapment.
2. The trial judge selected two alternate jurors as follows. Each of the three defendants had one peremptory challenge and the State had three. Alternate A was passed for cause. The State waived its first peremptory challenge and Mori exercised his. Alternate B was passed for cause. The peremptory challenges were waived in the following order: the State, defendant King, the State, Grant, the State and, finally, Timas. Alternate C was passed for cause. The judge announced that "[t]he parties have 3. The trial court did not abuse its discretion when it joined the trials pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 8(b)(3) and declined to sever them pursuant to HRPP Rule 14.
[82 Hawai'i 504] exhausted their peremptory challenges as to the alternates." This process violated the alternate juror selection procedure announced in State v. Carvalho, 79 Hawai'i 165, 880 P.2d 217 (1994). However, because Alternate B sat on the jury but Alternate C was excused before final arguments, only Mori was prejudiced
4. The trial court did not abuse its discretion or violate Mori's constitutional right to present his defense when it prohibited Mori from testifying that Grant told Mori that Officer Tehada promised to kick back drugs and that during the division of the drugs, Grant asked Officer Tehada for the drugs promised. Although the evidence was admissible for one purpose, it was inadmissible for another. The Hawai'i Rules of Evidence (HRE) Rule 105 solution was not requested and the circumstances were such that the HRE Rule 105 solution was inappropriate.
5. The trial court did not violate Mori's constitutional right to present his defense when it prevented Mori's counsel from asking Officer Tehada whether the minimum for the crime of "distribution" was "one quarter ounce[,]" and whether he received any training "regarding how much an addict would consume of coke[.]" The questions were irrelevant.
6. Timas was not the victim of ineffective assistance of counsel.
Dwight C.H. Lum, Honolulu, for defendant-appellant David Timas.
Lila B. Kanae (Kali Watson, on the brief), Honolulu, for defendant-appellant Francis Y. Mori.
Matthew A. Horn, on the brief, Honolulu, for defendant-appellant Archie Grant, III.
Caroline M. Mee, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and WATANABE and KIRIMITSU, JJ.
Defendants were charged with Promoting a Dangerous Drug in the First Degree, Hawai'i Revised Statutes (HRS) § 712-1241(1)(b)(ii)(A) (1993), 1, 2, 3 by distributing cocaine. On May 7, 1992 a First Circuit Court jury found defendant David Timas (Timas) Grant died on July 4, 1995. State v. Makaila, 79 Hawai'i 40, 45, 897 P.2d 967, 972 (1995), authorizes us, in our discretion, to "either (1) dismiss the appeal as moot, vacate the original judgment of conviction, and dismiss all related criminal proceedings, or, in the alternative, (2) enter such other order as the appellate court deems appropriate pursuant to HRAP [Hawai'i Rules of Appellate Procedure] Rule 43(a)." We have been informed by the attorney who represented Grant in this appeal prior to Grant's death that none of Grant's next-of-kin desire to continue Grant's appeal. Therefore, we opt for choice one.
[82 Hawai'i 505] guilty of six counts, defendant Francis Y. Mori (Mori) guilty of two counts, and defendant Archie Grant III (Grant) guilty of one count. Timas, Mori, and Grant appealed.
We refer to Timas and Mori, collectively, as Defendants. Mori appeals the June 15, 1992 Judgment sentencing him to two concurrent terms of incarceration for twenty years. Timas appeals the July 6, 1992 Judgment sentencing him to six concurrent terms of incarceration for twenty years. We vacate the June 15, 1992 Judgment convicting Mori. We affirm the July 6, 1992 Judgment convicting Timas.
In each of the transactions described below, undercover Honolulu Police Department Officer Elario Tehada (Officer Tehada) sought to purchase "two eightballs" of cocaine. An "eightball" is one-eighth of an ounce.
On April 3, 1991 Officer Tehada telephoned Timas and arranged a meeting to purchase drugs. Upon meeting Timas at Kapi'olani Park, Officer Tehada followed Timas' car to a parking lot (the Lot) on Hoawa Street and Kapi'olani Boulevard. Timas, Danielle Tucker (Tucker), Louise Nelson (Nelson), and a man identified as "Sonny" were in Timas' car. Officer Tehada gave $600 to Nelson, who proceeded to a phone booth. When Nelson returned, she removed a mailing envelope from underneath her T-shirt. From the envelope, which contained several Ziploc packets of cocaine, Nelson gave Officer Tehada two Ziploc packets.
Later that evening, Officer Tehada called Timas and arranged for another meeting the next day at the Lot. On April 4, 1991 Timas, Nelson, and "Sonny" arrived by taxi. Officer Tehada gave $600 to Nelson, who ran to Kapi'olani Boulevard and left in a car going in the 'Ewa direction. When Nelson returned, they went to the Seaside Tower apartments (Seaside) in Waikiki to split the drugs. In the lobby, Timas handed Officer Tehada a Ziploc packet containing cocaine.
During the early morning of April 10, 1991, Officer Tehada arranged with Timas to meet at the Handi Pantry on University Avenue and Date Street. In the Handi Pantry parking lot, Officer Tehada met Grant and Timas. Officer Tehada gave $600 to Grant, who then drove away. When Grant returned, he allowed Officer Tehada to inspect a "baggie-type cellophane packet" containing one ounce of cocaine. As instructed by Grant, Officer Tehada followed Grant back to Seaside. In Apartment 1102, Grant handed the baggie to Mori, who divided the cocaine on a scale. Mori weighed out one-fourth of an ounce and placed it into a paper bindle. Mori then gave the bindle to Officer Tehada. Mori testified that Officer Tehada scooped "some" cocaine from his bindle onto the mirror lying on the night stand. Officer Tehada denied doing so.
On April 19, 1991 Officer Tehada arranged with Timas for another transaction. Upon picking up Timas, Officer Tehada drove to the corner of Lewers Street and Kuhio Avenue, Waikiki. Mori arrived on a red moped. Timas told Mori that Officer Tehada wanted to buy one-fourth of an ounce of cocaine. After Officer Tehada parked the car, he and Timas went to Room 228 of the hotel located on that corner. Grant and Mori were in the room. Following a phone call, Mori told Officer Tehada that he needed to be driven to a place where he could pick up the drugs. Officer Tehada complied and drove Mori and Timas to Hunakai Street, Kahala. Officer Tehada gave $600 to Mori, who went across the street. From across the street, a moped left and later returned. A little later, Mori returned to the car and handed Officer Tehada a manila envelope containing two Ziploc On April 30, 1991 Officer Tehada arranged with Timas for another meeting. Timas, however, did not appear. Instead, Timas paged Officer Tehada and directed Officer Tehada to meet him at the corner of Lewers Street and Kuhio Avenue, Waikiki. At that corner Officer Tehada met Timas and Vicki Himmelmann (Himmelmann). Because they missed the drug source, Officer Tehada, Timas, and Himmelmann left for the Pagoda Terrace Hotel. At the hotel Officer Tehada gave $600 to Himmelmann, who went to get the drugs. While waiting for Himmelmann to return, Timas persistently asked Officer Tehada to sell him a gram of cocaine. Eventually, Officer Tehada gave in and offered Timas a "kickback," vernacular for a drug gift, in return for his role in the transactions. When Himmelmann returned, Officer Tehada drove Timas and Himmelmann back to Lewers, where they handed Officer Tehada a bindle of drugs. At Timas' suggestion, Officer Tehada used his car key to scoop two small mounds of drugs into the cellophane wrapper of a cigarette box and gave the cellophane wrapper to Timas. Timas then promised that Officer Tehada would get a better deal on...
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