State v. Mark

• Decision Date: 08 May 2009
• Docket Number: No. 26784.,No. 26785.,26784.,26785.
• Citation: 210 P.3d 22,120 Haw. 499
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Shane MARK, Defendant-Appellant (Criminal No. 03-1-0495). State of Hawai`i, Plaintiff-Appellee, v. Shane Mark, Defendant-Appellant (Criminal No. 03-1-0496).
• Court: Hawaii Court of Appeals

210 P.3d 22

120 Haw. 499

STATE of Hawai`i, Plaintiff-Appellee, v. Shane MARK, Defendant-Appellant (Criminal No. 03-1-0495).

State of Hawai`i, Plaintiff-Appellee, v. Shane Mark, Defendant-Appellant (Criminal No. 03-1-0496).

No. 26784.

No. 26785.

Intermediate Court of Appeals of Hawai`i.

May 8, 2009.

Dwight C.H. Lum, Honolulu, on the briefs, for Defendant-Appellant.

Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.

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

Opinion of the Court by RECKTENWALD, C.J.

I. INTRODUCTION

On March 4, 2003, Honolulu police received a tip concerning Defendant-Appellant Shane Mark. The caller reported that Mark would be at the Baskin-Robbins ice cream parlor in the Kapolei Shopping Center at about noon. Mark was wanted on a warrant in connection with a February 1, 2003 incident in which he allegedly shot Denny Paikai in the leg, and fired shots at John Piko.

A team of plainclothes Honolulu police officers, including Officer Glenn Gaspar, went to the Baskin-Robbins to arrest Mark. Officer Gaspar and Officer Calvin Sung approached Mark and attempted to place him under arrest. A struggle ensued and Mark, who was armed, fired three shots. Officer Gaspar was fatally wounded. Other officers assisted Officer Sung in subduing Mark, and placed him under arrest.

Two indictments were returned against Mark. In Criminal No. 03-1-0495 (Mark I), Mark was charged with the attempted murder in the second degree of Piko (Count I) and Paikai (Count II), in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1993), 707-701.5 (1993), and 706-656 (1993 & Supp. 1996); carrying, using, or threatening to use a firearm in the commission of a separate felony in connection with the attempted murder of Piko (Count III) and Paikai (Count IV), in violation of HRS § 134-6(a) and (e) (Supp.1999); and ownership or possession prohibited of any firearm or ammunition by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (2004) (Count V).

In Criminal No. 03-1-0496 (Mark II), Mark was charged with the murder in the first degree of Officer Gaspar, in violation of HRS §§ 707-701(1)(b) (1993 & Supp.2001) and 706-656 (Count I); the attempted murder in the first degree of Officer Sung, in violation of HRS §§ 705-500 and 707-701(1)(a) (Count II); carrying, using, or threatening to use a firearm in the commission of a separate felony, in connection with the murder of Officer Gaspar, in violation of HRS § 134-6(a) and (e) (Count III); possession prohibited of any firearm by a person convicted of certain crimes, in violation of HRS § 134-7(b) and (h) (Count IV); promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp. 2002) (Count V); and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) (Count VI).

The Circuit Court of the First Circuit¹ (circuit court) consolidated the cases at Mark's request, and they were tried to a jury in December 2003.² On December 22, 2003, the jury returned a verdict on some of the counts. The jury found Mark guilty of murder in the second degree of Officer Gaspar, rather than the charged offense of murder in the first degree (Mark II, Count I).³ The jury also found him guilty on Count III in Mark II, and Counts II and IV in Mark I.

The jury was unable to reach a unanimous verdict as to the charges relating to Piko and Officer Sung. The circuit court declared a mistrial and delayed sentencing until after a retrial. A second trial was held in July 2004. The jury found Mark guilty of the attempted assault in the first degree of Officer Sung, rather than the charged offense of attempted murder in the first degree (Mark II, Count II), but was unable to reach a verdict as to the charges relating to Piko (Mark I, Counts I and III). The circuit court then dismissed those charges.

At sentencing, the State of Hawai`i (State) moved for extended terms of imprisonment. The circuit court denied the motion with regard to the counts of conviction in Mark I, but granted it with regard to the counts of conviction in Mark II, finding that Mark was a persistent and multiple offender and that extended terms of imprisonment were necessary for the protection of the public. Accordingly, the circuit court sentenced Mark to an extended term of imprisonment of life without the possibility of parole for Count I in Mark II, rather than the term of life with the possibility of parole that would otherwise apply to a second degree murder conviction. See HRS § 706-661 (Supp.2003). The court also imposed extended terms of imprisonment on the other counts of conviction in Mark II.

Mark now appeals from the judgments entered on August 2, 2004 in both cases. On appeal, Mark advances a number of grounds for reversing or vacating his convictions. He argues that the circuit court erred by (1) granting in part the Honolulu Police Department's (HPD) motion to quash a subpoena for certain Internal Affairs Division records; (2) admitting a slow motion version of a videotape taken during the incident at the Baskin-Robbins and refusing Mark's proposed jury instructions on the videotape; (3) incorrectly instructing the jury on the justification of defense of others in the first and second trials; (4) referring the jury back to the court's instructions in response to a communication during deliberations in the first trial; (5) denying his motion for mistrial and his counsel's motion to withdraw during the second trial after it was discovered that the Office of the Public Defender (OPD) had represented Piko; and (6) denying his motion for a mistrial after it was discovered during the second trial that Piko believed that he had made a deal with the State in exchange for his testimony in the first trial, and after a juror received an anonymous voice mail which suggested that the juror should "watch [her] back." Mark further argues that he was denied a fair trial and impartial jury in the first trial based on factors including prejudicial publicity and the prosecutor's questioning of witnesses during trial, and that there was insufficient evidence to convict him of the attempted assault in the first degree of Officer Sung in the second trial.

For the reasons set forth below, we conclude that Mark's contentions are without merit, and accordingly, we affirm all of his convictions.

Mark also argues that the extended term sentences in Mark II violated his constitutional rights, because the circuit court made factual findings that should have been made by a jury. The State concedes, in light of the Hawai`i Supreme Court's decision in State v. Maugaotega, 115 Hawai`i 432, 168 P.3d 562 (2007), that the extended term sentences were not imposed in accordance with constitutional requirements.⁴ We agree that resentencing is required in light of Maugaotega, and accordingly vacate the extended term sentences imposed by the circuit court in Mark II, and remand for resentencing on those counts.

II. FACTUAL BACKGROUND

The relevant factual background, as developed at the first trial,⁵ is as follows:

A. February 1, 2003 Incident at Church Parking Lot

On the evening of February 1, 2003, three groups of people met at a church parking lot in Moanalua. Paikai and Piko arrived first in one vehicle, Mark and his girlfriend Leslie Martin arrived next in a car which they had borrowed from a friend, and then Russell Kimura and his girlfriend Carle Enosara arrived in Kimura's vehicle. The purpose of the meeting was for Kimura to return a surveillance camera which he had obtained from Mark. Kimura wanted to return the camera because he said it did not work properly. According to Mark, he had purchased the camera from Piko and an individual named Kimo, and then resold it to Kimura. Mark testified that he believed that Kimo and Piko were going to accept the camera back and refund the purchase price. In contrast, Piko testified that although he expected the camera to be returned to him at the parking lot, he did not understand that he was going to refund any money at that time.

The State called Piko and Paikai as witnesses at trial. Piko testified that the meeting in the church parking lot had been arranged earlier that day. That evening, Piko and Paikai went to the church and waited for the others to arrive. When they did, Piko walked over to talk to them. Piko "went go for grab the camera, and they was like, oh, if we get the money." Piko testified that "nobody told [Piko] about no money." Piko then walked over to Kimura's car and explained to Kimura that although he wasn't told he needed to bring cash for the camera, Paikai knew someone who wanted to buy the camera right away. They could follow Piko and Paikai to meet that person, and Piko could then refund Kimura the money. Kimura agreed, but said he didn't want to follow them. Instead, he said Mark and Martin could go with Piko and Paikai and collect the money on his behalf.

Piko again reached to take the camera from Mark, but Mark was "moving around" and pulled the camera back as if Piko "was gonna rip him off or something." Piko got "irked" and said, "what if I just take this from you, what you goin' do?" Mark then handed Piko the camera and pulled out a gun from his waistband. Piko was wearing only shorts, and was unarmed. Mark pointed the gun at Piko's head from a distance of about one foot. Piko lifted the camera box to cover his face, heard a gunshot, and ran. As Piko jumped up over a rock wall and ran through some bushes toward some apartments, he heard an additional 5 to 7 shots. Piko turned back and saw Mark running after him while shooting at him.

Paikai testified that at the parking lot, Piko walked over to talk to Mark and Kimura. When the conversation started to get "kinda heated," Paikai walked toward them. Paikai saw Mark give Piko the camera and pull a gun. Mark pointed the gun at Piko's head from a distance of about 18 inches and fired a round....