State v. Barros
| Decision Date | 02 July 2004 |
| Docket Number | No. 25032.,25032. |
| Citation | 95 P.3d 14,105 Haw. 160 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Lance BARROS, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Carrie Ann Y. Shirota, Deputy Public Defender, State of Hawai`i, on the briefs, for defendant-appellant.
Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.
Lance Barros (Barros or Defendant) appeals the March 8, 2002 judgment of the district court of the first circuit1 that convicted him of (1) violation of a temporary restraining order (TRO) against harassment issued pursuant to Hawai'i Revised Statutes (HRS) § 604-10.5 (Supp.2003);2 and (2) criminal contempt of court, in violation of HRS §§ 710-1077(1)(g) and 710-1077(3)(b) (1993).3
Barros contends:
Opening Brief at 8-14. We agree with point 2, but not the others. Accordingly, we affirm in part and vacate in part.
On July 12, 2001, Barros was orally charged with violating a restraining order against harassment issued pursuant to HRS § 604-10.5. The district court referred Barros to the public defender. The district court record of this proceeding notes: "To determine waive or demand jury trial[.]" The oral charge arose out of a July 2, 2001 incident in which Barros' brother, Wyman Barros (Wyman), went to the apartment of the complainant, Tricia Soares (Soares), and confronted her despite the TRO Soares had obtained against Barros earlier that day. The TRO prohibited Barros and "any other person[s] acting on [his] behalf" from contacting, threatening, or physically harassing Soares or anyone residing at her home. The TRO similarly prohibited telephone contact with Soares and any entry or visitation of her residence, including yard and garage.
On July 18, 2001, a penal summons complaint issued against Barros, charging him with criminal contempt of court. According to the district court record, Barros was charged with petty misdemeanor contempt, a "violation of [HRS] section 710-1077(1)(G)(3) [sic]." The written charge arose out of a July 6, 2001 telephone call Barros made to Soares.
On August 14, 2001, Barros again appeared pro se in the district court. The district court record of this proceeding reflects: "Re-refer to public defender for waiver or demand jury trial." At the continued arraignment and plea held on August 31, 2001, the following transpired:
Barros appeared with counsel on September 28, 2001, and trial was continued. After several more continuances, the case came on for trial on January 18, 2002.
Just before the bench trial started, the district court took care of several matters:
Soares was the State's only witness. She remembered that on July 2, 2001, she was living in a two-story apartment building. Soares had gotten the TRO against Barros that day because, she claimed, he had "keyed my car, put paint remover on my car." At about 6:00 p.m., she saw Barros standing at the front door to her neighbor's apartment, some fifty feet away and "across the hall." The neighbor was Perry Barros (Perry), who had been married to another brother of Barros. Soares recalled, "I looked out the window and I seen him, and he walked in the house and then my neighbor called and told me to call the police, so I called the police." The following exchange ensued:
Soares also testified that on July 6, 2001, at about midnight, she received a call on her cell phone. She noticed the number calling, 261-9595, which was the number of the Enchanted Lakes Elementary School pay phone. Barros usually used that pay phone to telephone her. "I heard Lance's voice say you fucking slut, and I said hello and then he just hung up."
On cross-examination, Soares acknowledged that, while her written statement to the police indicated the call was made at 12:11 a.m., her cell phone billing records showed no call at that exact time. Soares denied taking any personal items, such as money or keys, from Barros. On redirect examination, Soares explained that the clock she used to gauge the time of the call is usually set five minutes fast. Soares noted a 12:07 a.m. call in her cell phone records.
Barros testified in his own defense. He first explained, "how this all started." On July 1, 2001, Soares stayed overnight at his house. She had to leave before he was to wake up, so he gave her a key to deadbolt the door when she left. Barros came home from work at about 4:30 or 5:00...
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...available, and self-represented defendant indicated to court he had discussed jury waiver with counsel]; State v. Barros (Ct.App. 2004) 105 Hawai'i 160, 95 P.3d 14, 22–23 [court thrice referred pro per defendant to a public defender for consultation about jury waiver].) This may be done eve......
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