Loher v. State

Decision Date14 July 2008
Docket NumberNo. 27844.,27844.
Citation118 Hawai'i 522,193 P.3d 438
PartiesFrank O. LOHER, Petitioner-Appellant, v. STATE of Hawai`i, Respondent-Appellee.
CourtHawaii Court of Appeals

Frank O. Loher, on the briefs, Petitioner-Appellant Pro Se.

Peter B. Carlisle, Prosecuting Attorney, Brian R. Vincent, Deputy Prosecuting Attorney, on the briefs, for Plaintiff-Appellee.

RECKTENWALD, C.J., WATANABE, and LEONARD, JJ.

Opinion of the Court by LEONARD, J.

Petitioner-Appellant Frank O. Loher (Loher), aka Frank Loher, appeals the Order Denying Petition for Post-Conviction Relief, filed on March 16, 2006 in the Circuit Court of the First Circuit (Circuit Court).1 The Circuit Court denied without a hearing Loher's Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody, pursuant to Rule 40 of the Hawai`i Rules of Penal Procedure (HRPP), filed on October 18, 2005 (Rule 40 Petition). Loher raises numerous points of error.

I. PRIOR PROCEEDINGS
A. The Initial Proceedings — Crim. No. 99-1621

On August 19, 1999, Loher was charged with: (1) Attempted Sexual Assault in the First Degree, in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993) and 707-730(1)(a) (1993); and (2) Attempted Kidnapping, in violation of HRS § 707-720(1)(d) (1993). Various pretrial matters were conducted, including the following that we consider in conjunction with the instant appeal.

A "Memorandum of Pretrial," dated December 9, 1999, stated that the trial was expected to take five to six days. On November 30, 1999, Loher filed a Notice of Alibi Defense. On November 13, 2000, the State of Hawai`i (State) filed its "Witness and Exhibit List" which identified fourteen witnesses, reserved its right to call "any and all witnesses listed by Defendant," and referenced "any persons mentioned in State's discovery materials."

Also on November 13, 2000, Loher and the State each filed a motion in limine. Loher's motion in limine sought to preclude introduction of Loher's prior bad acts, criminal record, parole status, and statements to police. The State's motion in limine sought to preclude introduction of the complaining witness's prior bad acts, previous sexual/medical history, occupation as an exotic dancer and ex-porn star, and prior allegations of sexual assault.

During the hearing on the State's motion in limine, Loher's counsel argued that he wanted to question the complaining witness about her occupation, prior sexual history, and allegations that she was a prostitute because it went directly to the issue of credibility. However, Loher also confirmed that he intended to present an alibi defense because he was not present during the alleged attempted sexual assault and attempted kidnapping. The Circuit Court granted Loher's motion in limine. The Circuit Court granted, in part, the State's motion in limine, by precluding evidence of the complaining witness's prior bad acts, sexual/medical history, occupation, and allegations of sexual assault on the ground that the information was irrelevant to Loher's alibi defense, but allowed Loher to question the complaining witness about her aliases.

On Tuesday, November 14, 2000, the State called its first witness, Honolulu Police Officer Oryn Baum, who testified that on July 29, 1999, he was dispatched to 2722 Kakoi Street where he was flagged down by the complaining witness. Officer Baum testified that the complaining witness described a man who had assaulted her and the vehicle he was driving. Officer Baum also testified that he observed a scratch on the back of the complaining witness.

Stephanie Kamakana, a fingerprint identification technician for the Honolulu Police Department, testified that four fingerprints recovered from Loher's car were of no value and that one recovered fingerprint from Loher's car did not match the complaining witness.

The complaining witness then testified that she accepted a ride from Loher, she fell asleep in the car, and when she woke up she was near Kakoi Street. She testified that Loher then demanded oral sex. As she tried to get out of the car, Loher ripped her top and left a scratch on her back. The complaining witness then called the police.

Detective Earl Takahashi testified that the complaining witness identified Loher from a photographic line up. After Detective Takahashi's testimony, the State rested its case sometime after 2:00 p.m. on the first day of trial.

At approximately 2:30 p.m., the following exchange took place among the Circuit Court, the defense attorney, Neal J. Kugiya (Kugiya) and the deputy prosecutor, Thalia Murphy:

THE COURT: Record reflect the presence of counsel out of the presence of the jury. Mr. Kugiya.

MR. KUGIYA: Yes, Your Honor, making the request of the Court because of time constraints, if we can present our evidence starting Thursday morning. This is a case where there was [sic] two A felonies that the defendant's charged with. We just took opening statements this morning, and basically, I had no idea that they would finish this early, you know, because they have quite a number of people on the witness list. So at 2:30, this juncture, I tried to make a couple calls, and people cannot get here. Thursday morning they can come because that's what I told them initially. And so I apologize, but I mean, I feel that it's — it's too quick for us to have to present witnesses under the circumstances. I'm asking if we could start our case Thursday morning because people will be there, and we can finish our case Thursday.

THE COURT: You wish to make any representation?

MS. MURPHY: No, Your Honor. I will defer to the Court.

THE COURT: Under Rule 611 the Court has discretion to exercise control over the mode and order of interrogation. What the Court is going to do because there's more than enough time left in the day, we're going to continue with the trial. I'm going to allow the defense to call Mr. Loher to testify, then after he completes testifying, he can call whatever witnesses that's on call that may arrive today. We can continue with that, and then we can call the remaining witnesses on Thursday morning.

MR. KUGIYA: Okay. Well, I need to note my objection to that, Your Honor, because Mr. Loher does have a right not to testify, and based on testimony of other witnesses, there may not be a need for him to testify if we can get everything we need across from the other people. So in this vein the Court is actually forcing him to take the stand because now we have nobody to call, and you're saying, Well, we can call Mr. Loher, but as a strategic manner in planning for our case, he was going to be the last witness I call, and depending how it went with the other witnesses, we may not need to call him because we can get everything that we need through the other witnesses.

So, in fact, now that we're being forced to call him as first witness in a sense is prejudicial to Mr. Loher because he's being forced to testify when he, in essence, we had not decided fully whether or not he would testify for sure.

THE COURT: The Court does not find the argument persuasive. The Court believes that it was the responsibility or is the responsibility of counsel to determine when witnesses would be available.

Defense counsel was free to discuss with the State the witnesses called and when they would anticipate finishing their case.

Defense counsel has hopefully prepared for this case, so should be aware at the present time what the witnesses that he intends to call will testify. And having prepared and having a knowledge as to what they will say, since they are the defense witnesses, then they should be in the position to know whether the defendant should testify.

So the Court believes it is not persuasive that defense counsel should now argue to this Court, after the Court had denied his request to delay the trial till Thursday by saying that he does not know what his own witnesses will say and depending what they say, he will then make the decision whether his client's going to testify.

The Court would also note that during the pretrial conferences, as well as in the opening statement, the defendant has asserted an alibi that he was not present at the time, and that where the — his location would be during certain times defense counsel has also represented to the Court that his client is going to testify.

The Court is not persuaded by his argument and is concerned that this may be manipulative in order to obtain the relief that the Court had not granted.

In addition, throughout this trial Mr. Kugiya has engaged in certain conduct in questioning by proceeding with questions where the Court has sustained and asking the witness's [sic] questions which they have not — no personal knowledge, and then, in effect, testify by asking those witnesses who does [sic] not have personal knowledge regarding these matters.

And the Court on more than one occasion had to admonish Mr. Kugiya during the motions in limine. I had made clear to Mr. Kugiya that he was not to enter into certain areas. During this trial he proceeded to do so. In particular, asking about where the witnesses worked and now Court is faced with this situation. I do not want to make any stronger statements than that, but I am concerned.

MR. KUGIYA: Well, if I can respond.

THE COURT: Excuse me, and the Court is unpersuaded by your argument. So we're going to proceed. You may call your client to testify, or if you wish, not to testify or engage in Tachibana at this time, and he may waive his testimony. That is between you and your client. So I'm going to take a recess, and before we do that, is your client going to testify or is he going to waive his right to testify?

MR. KUGIYA: I'd like to discuss that matter with him.

MS. MURPHY: I can leave the courtroom so that they can remain here.

MR. KUGIYA: Your Honor, if I can just say we're not trying to delay this trial in any way. It's just that it was my...

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