State v. Hauge

Decision Date18 November 2003
Docket NumberNo. 25239.,25239.
PartiesSTATE of Hawai'i, Plaintiff-Appellee, v. Steven M. HAUGE, Defendant-Appellant.
CourtHawaii Supreme Court

79 P.3d 131
103 Haw.

STATE of Hawai'i, Plaintiff-Appellee,
Steven M. HAUGE, Defendant-Appellant

No. 25239.

Supreme Court of Hawaii.

November 18, 2003.

As Corrected November 26, 2003.

79 P.3d 133
Joyce K. Matsumori-Hoshijo, deputy public defender, on the briefs, for defendant-appellant

Mangmang Qiu Brown, deputy prosecuting attorney, on the briefs, for plaintiff-appellee.

79 P.3d 134
MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and ACOBA, J., concurring separately

Opinion of the Court by LEVINSON, J.

The defendant-appellant Steven M. Hauge appeals from the judgment of the first circuit court, the Honorable Marie N. Milks presiding, convicting him of and sentencing him for the offense of burglary in the first degree, pursuant to Hawai'i Revised Statutes (HRS) § 708-810(1)(c) (1993).1 On appeal, Hauge contends that: (1) the deputy prosecuting attorney (DPA) committed prosecutorial misconduct, depriving Hauge of his right to a fair trial, by improperly cross-examining Hauge and by stating in closing argument that Hauge failed to "explain away" the prosecution's deoxyribonucleic acid (DNA) evidence; (2) the circuit court erred by improperly commenting on the evidence and misstating the testimony of the prosecution's witnesses during defense counsel's closing argument, thereby violating Hauge's right to a fair and impartial trial; (3) the circuit court erred in denying Hauge's motion to suppress the DNA evidence that was obtained in an unrelated robbery case and used in the present matter without Hauge's consent or a judicial determination of probable cause; and (4) the circuit court erred in granting the prosecution's motion to extend Hauge's sentence, pursuant to HRS § 706-662(1) (Supp.2000),2 from ten to twenty years of imprisonment, inasmuch as the finding that an extended term was necessary for the protection of the public should have been proven beyond a reasonable doubt before the jury. The plaintiff-appellee State of Hawai'i [hereinafter, "the prosecution"] responds that: (1) the DPA's remarks did not constitute misconduct because they neither infringed on the jury's right to evaluate credibility nor shifted the burden of proof to Hauge; (2) the circuit court's misstatement of the evidence during defense counsel's closing argument was harmless beyond a reasonable doubt when considered in light of the entire record and, therefore, did not violate Hauge's right to a fair and impartial trial; (3) the circuit court's denial of Hauge's motion to suppress the DNA evidence was not error, inasmuch as the police were not constitutionally prohibited from using a DNA profile lawfully obtained in a prior case in a subsequent and different investigation; and (4) a jury determination was not constitutionally necessary to extend Hauge's sentence, inasmuch as Hawai'i law is consistent with relevant federal precedent, and due process does not require such a determination.

For the reasons discussed infra in Section IV, we believe that Hauge's arguments are without merit. Accordingly, we affirm the circuit court's judgment of conviction and sentence.


On January 23, 2001, Wallace and Marcella Ordway were guests in Room 714 of the Ocean Resort Hotel, located at 175 Paoakalani Avenue in Waikīkī. At approximately 7:00 a.m., the Ordways prepared their luggage in their room for a trip to Kaua'i and then went downstairs for breakfast. At approximately 7:30 a.m., the Ordways returned to their room to find that the bellman had not yet removed their luggage. The bellman informed the Ordways that he had checked Room 714 on two separate occasions and was

79 P.3d 135
informed by the "`gentlemen inside the door'" that the luggage was not ready

Upon reentering the room, the Ordways discovered that their luggage had been cut open and their belongings strewn across the floor. Mrs. Ordway observed broken glass on the floor and blood on the inside door, bathroom counter, sliding patio doors, and various places on the luggage. The Ordways found one suitcase in the bathroom, sliced open and stained with blood; their clothing also was bloodstained. The Ordways testified that the blood was not theirs. The burglar stole their Sony camcorder, four hundred dollars in cash, two Hard Rock Café t-shirts and a Hard Rock Café bag, as well as a travel iron. Mr. Ordway described the camcorder as "black and silver" and the Hard Rock Café bag as "plastic" and "white with dark emblems on it." Mrs. Ordway did not testify about the color of the camcorder and could not recall the color of the Hard Rock Café bag, but did describe the bag as "paper." Either the Ordways or the hotel staff called the police.

Although the Ordways repacked their bags and sealed them with duct tape so that they could leave for Kaua'i, they testified that they did not tamper with any of the evidence later recovered by the police, as requested by Honolulu Police Department (HPD) Detective James Anderson. The same day, after arriving in Kaua'i, the police cut approximately 5 or 6 bloodstained pieces of the luggage; officers hand delivered the evidence to the HPD on January 24, 2001. The HPD also recovered blood samples from pieces of glass left in the bathroom sink of Room 714, the inside door lock, the patio sliding glass doorframe, and the curtain of the hotel room. These samples were sent to Cellmark Diagnostics (Cellmark) for DNA testing.

As part of the burglary investigation, HPD detectives questioned a pawn shop proprietor, Nabil Khatib, regarding any transactions involving Sony camcorders on January 23, 2001. At trial, Khatib testified that he was certain that Hauge tried to sell him a Sony camcorder that was "tan[or] goldish" in color on the date in question. Khatib also testified that Hauge was carrying a "brown paper [bag] with handles on [it], and it ha[d] the logo Hard Rock Café [sic]."

In addition to the present matter, Hauge was a suspect in a robbery investigation, based on events which had also occurred on January 23, 2001, approximately five hours before the burglary, at the Ohana Waikiki West Hotel. Hauge was arrested on January 24, 2001 in connection with the robbery offense. On January 25, 2001, as part of the robbery investigation, HPD Detective Darryl Kon applied for and was issued a warrant to search for and obtain human hair and blood from Hauge, which was executed on January 25, 2001. The HPD requested that Cellmark Diagnostics conduct a DNA analysis and comparison of the blood recovered in the burglary investigation with a portion of the samples retrieved from Hauge pursuant to the warrant issued in the robbery investigation, and Cellmark notified the HPD of a match on September 24, 2001. The police arrested Hauge on October 11, 2001, based on his identification as the perpetrator of the burglary offense.


On October 22, 2001, the prosecution charged Hauge by complaint with one count of burglary in the first degree, see supra note 1, alleging that, on January 23, 2001, Hauge intentionally entered unlawfully into the Ocean Resort Hotel, Room 714, with intent to commit therein a crime against a person or against property, and recklessly disregarded the risk that the building was the dwelling of another, when the building was such a dwelling.

A. Motion to suppress the DNA evidence

On December 3, 2001, Hauge filed a motion to suppress evidence of "[a]ny and all laboratory tests and/or analysis conducted upon any and all items of evidence recovered under HPD XX-XXXXXX, which have been examined and have been determined to contain [Hauge's] DNA and/or genetic profile." In support of his motion, Hauge argued that "the submission of ... [his] blood and hair for DNA analysis and comparison, in the burglary matter, exceeded the limited, authorized purpose for which the search warrant

79 P.3d 136
was issued, [i.e.,] the investigation of the robbery." Hauge contended that use of his blood and hair samples,
other than specified in the application in support of the search warrant, and the warrant itself, violated ... Hauge's legitimate and reasonable expectation of privacy... that the government would not keep... a DNA databank of it's [sic] citizens, which the government could delve into at the government's convenience ..., without judicial review.

Hauge also asserted that "there are no procedures, no guidelines as to what HPD is authorized to do with a person's DNA once they obtain it by way of a search warrant." Based on the foregoing reasoning, Hauge argued that he "was entitled to judicial review by way of an application to the court [to determine whether there was probable cause] to conduct additional tests on the evidence, or [that he was entitled] to an adversarial hearing to determine the necessity for the intrusion into [his] legitimate expectation of privacy."

In response, the prosecution advanced several arguments in support of its position that the circuit court should deny Hauge's motion to suppress. The prosecution first contended that, because "the Honorable Rhonda Nishimura had the authority to issue the search warrant authorizing the search of [Hauge] for the blood and hair samples [in connection with the robbery investigation,] ... all the evidence recovered pursuant to the search warrant is admissible in the instant case." The prosecution emphasized the "importance of DNA testing within the criminal justice system" and stated that there are no express statutory limitations on the collection of blood samples for DNA testing or on the dissemination of the results of DNA testing at the Hawai'i Criminal Justice Data Center, such that, once Hauge's "blood sample [was] lawfully obtained, [it] may be recorded, preserved, and disseminated...." Moreover, the prosecution argued that, "[o]nce lawfully obtained, [Hauge] can no longer assert any privacy interest in ... blood held by law enforcement" and asserted that "courts have held that law enforcement agencies may compare validly...

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