Loher v. State
| Citation | 310 P.3d 1047,130 Hawai'i 346 |
| Decision Date | 31 May 2011 |
| Docket Number | No. 29818.,29818. |
| Parties | Frank O. LOHER, Petitioner–Appellant, v. STATE of Hawai‘i, Respondent–Appellee. |
| Court | Court of Appeals of Hawai'i |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of the First Circuit (Special Proceedings Prisoner No. 05–1–0067; Criminal No. 99–1621).
Laura Yoshida, on the briefs, for Petitioner–Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, on the briefs, for Respondent–Appellee.
Randal I. Shintani, on the briefs, Pro Se, Prior Court–Appointed Counsel.
MEMORANDUM OPINION
Defendant–Appellant Frank O. Loner (Loner) appeals from the Findings of Fact, Conclusions of Law, and Order Denying Petition for Post–Conviction Relief (Post–Conviction Order) filed by the Circuit Court of the First Circuit (Circuit Court) on April 14, 2009.1 The Post–Conviction Order followed an evidentiary hearing on remand from this court's opinion in Loher v. State, 118 Hawai‘i 522, 193 P.3d 438 (App.2008). The Circuit Court denied Loher's petition for post-conviction relief under Hawai‘i Rules of Penal Procedure (HRPP) Rule 40 (
). On appeal, Loher contends that the Circuit Court erred in concluding that the failure of Loher's former appellate counsel to raise the “forced” testimony issue did not amount to ineffective assistance of counsel. We affirm.
On August 19, 1999, a grand jury indicted Loher for (1) attempted sexual assault in the first degree in violation of Hawaii Revised Statutes (HRS) §§ 705–500 (1993) and 707–730(1)(a) (1993 & Supp.2002); and (2) attempted kidnapping in violation of HRS §§ 705–500 and 707–720(1)(d) (1993). Prior to trial, Loher filed a notice of alibi defense. At a hearing on a motion in limine, Loher confirmed that he would rely on an alibi defense. Loher's counsel represented that Loher would testify, but at various times inserted a caveat “in case [Loher] chose not to testify.”
The State filed a pretrial memorandum indicating that it expected the trial to last a total of five to six days. The State's witness list identified fourteen potential witnesses.
At a jury trial on November 14, 2000, the State presented the testimony of four witnesses: the complaining witness (Complainant), the responding police officer, a Honolulu Police Department (HPD) detective, and an HPD fingerprint technician.
The Complainant testified that, in the early morning of July 29, 1999, she was walking alone down Kapiolani Boulevard toward downtown Honolulu. Loher drove up in his car, a red, four-door Plymouth Neon, and offered her a ride. Complainant got into the front passenger seat of the car. She had never seen Loher before.
Loher drove onto the freeway, and Complainant fell asleep. When she woke up, they were in a deserted industrial area. Loher demanded oral sex and threatened that unless she complied, she would not be getting out of the car. Complainant struggled to get out of the car as Loher ripped off her shirt and bra, scratching her back in the process. She ran to a nearby pay phone and called 911. While she was on the phone with the dispatcher, Loher drove away. Complainant noted Loher's license plate number and relayed it to the responding officer. She described her assailant as a “local male” who was wearing an aqua-colored T-shirt and appeared to be “unshaven for a few days.” At the police station, Complainant identified Loher from a photographic lineup. She also identified an aqua-colored T-shirt obtained during the investigation as the shirt Loher had been wearing.
The responding police officer testified that she received a call from dispatch to Kakoi Street, an industrial area near the airport, at about 3:52 a.m. on July 29, 1999. When she arrived, Complainant flagged her down at the corner of Kakoi Street and Kilihau Street. Complainant's top had been ripped. The officer ran the license plate number provided by Complainant and confirmed that the vehicle belonged to Loher and his wife.
The investigating detective testified that he did not find any identifiable fingerprints or hair from Complainant in Loher's car. An HPD fingerprint technician testified that a fingerprint taken from the passenger's side door of Loher's car did not match Complainant's.
The State rested its case at approximately 2:15 p.m. on the first day of trial. Following a fifteen minute recess, the court reconvened outside the presence of the jury at 2:27 p.m. Loher's counsel requested a continuance until the following morning because he did not anticipate that the State would finish so quickly and was unable to locate the defense witnesses. The court noted that “there [was] more than enough time left in the day” and that Loher could testify at that time. Loher's counsel objected. He noted that depending on how the other witnesses testified, “there may not need to be a need for [Loher] to testify.” The court noted that Loher's counsel had previously represented that Loher would testify and concluded, After Loher's attorney consulted with him during a brief recess, he elected to testify.
Loher testified that at the time of the alleged offense, he was living in Victory Ohana, a halfway house in Kalihi. He had been married since February of 1999, but his wife, Andrea, lived separately with her son in Nuuanu. At around midnight on the night in question, Andrea called Loher from her job at Straub Clinic in downtown Honolulu. She was not feeling well and asked Loher to bring her some food. Loher got off work around 1:00 or 1:15 a.m., stopped at a fast food restaurant, and arrived at Straub Clinic at around 2:00 a.m. He spent about forty minutes with Andrea and left the clinic at about 2:40 a.m. He spent ten minutes driving back to Victory Ohana, arriving around 2:50 a.m. Loher then called Andrea at about 3:10 a.m. They talked for fifteen to twenty minutes until around 3:30 a.m, after which Loher went to sleep.
Andrea called Loher at around 4:00 a.m. to wake him up so that he could drive Andrea's son to work. Loher arrived at Andrea's house in Nuuanu at around 4:45 a.m. He made breakfast and left the house at about 5:30 a.m. He dropped off Andrea's son at Pearl Kai Shopping Center at around 6:00 a.m., then returned to Straub Clinic to pick up Andrea. Loher testified that he was wearing blue jeans and a black shirt that night, but admitted owning an aqua-colored shirt. He denied ever being on Kapiolani Boulevard that night.
On cross-examination, the State impeached Loher with a statement he had given to a detective on the afternoon of July 29, 1999. In his statement, he did not mention Andrea calling him several times at Victory Ohana. He told the detective he left Victory Ohana at 5:30 a.m. to pick up Andrea's son. He also told the detective that he was wearing a light green T-shirt on the night in question.
On the second day of trial, Andrea's son testified, as Loher's witness, that Loher arrived at the house in Nuuanu at about 4:45 a.m. on the morning of July 29, 1999. He was driving a red, four-door Neon sedan and was wearing a black shirt. Loher made breakfast and then drove him to Pearl Kai Shopping Center, where they arrived at about 6:00 a.m.
Andrea also testified. She stated that she called Loher from work at about midnight on the night in question and asked him to bring her some food. Loher arrived shortly before 2:00 a.m. He was clean shaven and wore jeans and a black shirt. Loher left at around 2:35 a.m. and called Andrea from Victory Ohana at about 3:15 a.m. They talked on the phone for fifteen to twenty minutes. Andrea called Loher again at around 4:00 a.m. to wake him up so that he could take her son to work.
On cross-examination, Andrea admitted that when the detective interviewed her on August 11, 1999, she told him that Loher had left Straub Clinic at about 2:20 a.m. She further admitted telling him that her telephone call with Loher had finished by 3:15 a.m. She also acknowledged that she never told the detective about calling Loher at 4:00 a.m. to wake him up. Finally, she acknowledged telling the detective that Loher had been wearing a green-colored shirt.
On November 17, 2000, the jury found Loher guilty of attempted sexual assault in the first degree. It found that count II, attempted kidnapping, had merged. Loher's trial counsel, Neal Kugiya (Kugiya), withdrew on February 21, 2001. On March 8, 2001, the court appointed Randal Shintani (Shintani) to represent Loher on appeal. Based on Loher's three prior sexual assault convictions involving similar circumstances, the Circuit Court sentenced him to an extended term of imprisonment with the possibility of parole, subject to a mandatory minimum term of thirteen years and four months to be served consecutively to his sentences on prior convictions.
On direct appeal, Loher's appellate counsel did not raise the issue of Loher's allegedly forced testimony. State v. Loher, No. 24489, at 11–15 (App. Apr. 21, 2003) (mem.). This court affirmed the conviction on April 21, 2003, and the Hawai‘i Supreme Court dismissed the application for writ of certiorari on June 16, 2003. Id.
On October 18, 2005, Loher filed pro se the instant Rule 40 Petition. Among other things, he argued that the Circuit Court forced him to testify. The Circuit Court denied the petition without a hearing. Loher appealed the denial in Appeal No. 27844. See Loher, 118 Hawai‘i 522, 193 P.3d 438. This court construed the Rule 40 Petition to assert a claim that Loher's appellate counsel was ineffective in failing to raise the issue of Loher's “forced” testimony. Id. at 532, 193 P.3d at 448.
In its opinion, this court referenced Brooks v. Tennessee, 406 U.S. 605 (1972) and State v. Kido, 102 Hawai‘i 369, 76 P.3d 612 (App.2003), cases in which the trial courts were...
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... ... Harris v. Barkley, 202 F.3d 169, 173-74 (2d Cir ... 2000) (finding a trial court did not violate Brooks ... in ruling the defendant had to testify-if he chose to testify ... at all-prior to a witness whose appearance was delayed); ... Loher v. State, 310 P.3d 1047, n.6 (Haw. Ct. App ... 2011) ("A number of courts have similarly held that no ... Brooks violation occurs where the defendant made the ... decision [to testify] before the trial court's ruling ... These courts reason that the trial court's ruling ... ...
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State v. Schrader-Falls
...ruling the defendant had to testify—if he chose to testify at all—prior to a witness whose appearance was delayed); Loher v. State, 310 P.3d 1047, n.6 (Haw. Ct. App. 2011) ("A number of courts have similarly held that no Brooks violation occurs where the defendant made the decision [to test......