State v. Mundon
| Decision Date | 13 November 2009 |
| Docket Number | No. 28448.,28448. |
| Citation | 121 Haw. 339,219 P.3d 1126 |
| Parties | STATE of Hawai`i, Respondent/Plaintiff-Appellee, v. James MUNDON, Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Stuart N. Fujioka (of Nishioka & Fujioka), Honolulu, for petitioner/defendant-appellant.
Tracy Murakami, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.
MOON, C.J., NAKAYAMA, J., and Circuit Judge MARKS, in Place of RECKTENWALD, J., Recused; ACOBA, J., concurring and dissenting, separately, with whom DUFFY, J., joins.
On July 1, 2009, this court accepted a timely application for a writ of certiorari, filed on May 21, 2009, by petitioner/defendant-appellant James Mundon, seeking review of the Intermediate Court of Appeals' (ICA) March 20, 2009 judgment on appeal, entered pursuant to its February 27, 2009 summary disposition order (SDO). Therein, the ICA affirmed in part and vacated in part the Circuit Court of the Fifth Circuit's1 February 16, 2007 judgment, convicting Mundon of and sentencing him for: (1) one count of attempted sexual assault in the first degree (attempted sex assault 1st), in violation of Hawai`i Revised Statutes (HRS) §§ 707-730(1)(a) (1993)2 and 705-500 (1993)3; (2) one count of terroristic threatening in the first degree (TT1), in violation of HRS §§ 707-715 (1993)4 and 707-716(1)(d) (1993)5; (3) one count of kidnapping, in violation of HRS § 707-720(1)(d) (1993)6; (4) one count of assault in the third degree (assault 3d), in violation of HRS § 707-712(1)(a) (1993)7; and (5) one count of attempted assault in the second degree (attempted assault 2d), in violation of HRS §§ 707-711 (1993)8 and 705-500. Oral argument was held on August 10, 2009.
Briefly stated, the charges levied against Mundon (totaling 28-counts) were based on an incident during which Mundon threatened the complaining witness [hereinafter, the complainant] with a knife, forced her to remove her clothes, subjected her to sexual kissing and touching, and, later, tackled and restrained her when she tried to escape. During the pre-trial proceedings, Mundon waived his right to counsel and represented himself at trial with the assistance of standby counsel. Following a six-day jury trial, Mundon was convicted of the above enumerated offenses, and Mundon appealed. The ICA vacated and remanded all of his convictions, except for the attempted sex assault 1st conviction, which the ICA affirmed.
Mundon contends on application that the ICA erred in holding that the trial court did not err in failing to provide a specific unanimity instruction with respect to the charges of attempted sex assault 1st, TT1, and kidnapping. As discussed more fully infra, Mundon also contends that the ICA erred in holding that the trial court did not deprive him of his state and federal constitutional rights (1) to due process, confrontation, a speedy trial, and assistance of counsel and (2) to have a jury find the facts necessary for the imposition of a consecutive sentence. Based on the discussion below, we hold that the ICA erred in concluding that: (1) a specific unanimity instruction was not required with respect to the offenses of attempted sex assault 1st and TT1; (2) the trial court's failure to provide Mundon with certain written transcripts was harmless error; and (3) Mundon's constitutional rights were not violated when the trial court refused to continue trial after Mundon complained of his inability to retrieve his trial preparation materials. Accordingly, we reverse Mundon's conviction for TT1, vacate Mundon's remaining convictions, and remand the case for a new trial consistent with this opinion.
On August 15, 2005, Mundon was charged — via indictment9 — with: (1) twenty-one counts of sexual assault in the third degree (sex assault 3d), in violation of HRS § 707-732 (Supp.2008); (2) two counts of TT1; (3) one count of attempted sex assault 3d; (4) one count of kidnapping; (5) one count of assault 3d; (6) one count of attempted assault in the first degree (attempted assault 1st), in violation of HRS §§ 707-710 (1993) and 705-500; and (7) one count of attempted sex assault 1st.10 On January 12, 2006, Mundon entered a plea of not guilty as to all twenty-eight counts. Mundon also indicated that he wished to represent himself at trial and requested the appointment of standby counsel, which the trial court granted, instructing the public defender's office to act as standby counsel. However, due to a conflict of interest reported by the public defender's office, the trial court appointed Alfred B. Castillo as standby counsel for Mundon.
Soon thereafter, on June 7, 2006, Castillo moved to withdraw as Mundon's counsel, which the trial court granted on July 6, 2006, based on Mundon's representation that he was going to hire private counsel. Specifically, Mundon advised the court that he "would like to waive representation from the [c]ourt appointed [attorney] and ... take over the case [him]self until [he could] purchase an attorney from Oah`u and have that person take over." Ultimately, the trial court, in September 2006, appointed Caren Dennemeyer to act as Mundon's standby counsel based on Mundon, again, indicating his desire to represent himself and requesting appointment of standby counsel. Although Dennemeyer attempted to withdraw as standby counsel on the eve of trial (discussed infra), the trial court denied her request.
Between January 2006, when Mundon entered his not guilty pleas, and the commencement of trial on December 11, 2006, the trial court entertained a variety of motions related to (1) Mundon's efforts to secure written transcripts of a February 2004 preliminary hearing11 and August 15, 2005 grand jury proceeding, (2) speedy trial issues, and (3) Mundon's inability to obtain his trial preparation materials that were left behind on O`ahu when he was transferred to Kaua`i for trial four days early. The factual background related to these matters are presented in the applicable sections infra.
Mundon's jury trial commenced on December 11, 2006 and lasted six days. The prosecution's case in chief consisted of, inter alia, the testimonies of the complainant, Kaua`i Police Department (KPD) Detective Marvin Rivera (Det. Rivera), and six other members of the KPD. Mundon also testified on his own behalf, relating a version dramatically different from the complainant's version of the events that occurred on the night in question.
The complainant testified that, on February 4, 2004 at around 10:00 p.m.,12 she encountered Mundon at Kapa`a Beach on Kaua`i. She started a conversation with Mundon and told him that her friend "Tito"13 had gone to a nearby hotel to see if rooms were available because they were both looking for a place to stay for the night. Mundon offered to try to find them a cheap hotel and told the complainant that she could sleep in the cab of his truck while she was waiting for Tito because it was warmer. The complainant fell asleep in the cab of the truck, and, when she woke up, Mundon told her he had found a place for her to stay and drove to a spot by the ocean somewhat near a hotel where Mundon claimed they were supposed to meet Tito.
After some time passed, Tito did not show up, and the complainant asked Mundon to take her back to Kapa`a Beach. The complainant again fell asleep in the truck; when she awoke, she realized they were not at Kapa`a Beach, but in a dark, secluded area on the other side of the hotel. Mundon parked the truck, got out, and told the complainant that he was going to see if he could find Tito or a security guard at the hotel. When Mundon returned, he told the complainant that no one was around. Mundon left again to look for Tito, and the complainant fell asleep.
Some time later, the complainant felt something touching her leg and awoke to find Mundon putting his hand underneath her underwear, near her outer labia or pubic area. She told Mundon to stop; after Mundon stopped and apologized, she went back to sleep. When she awoke, she again found Mundon putting his hand in her underwear and feeling her outer labia. Mundon complied with her request to stop and again apologized, and the complainant went back to sleep. When the complainant awoke for a third time and felt Mundon touching her, she tried to get out of the truck. However, before she could exit the vehicle, Mundon grabbed her and said, The complainant did not see the knife, but felt something cold and sharp along the front of her neck.
Mundon told her to relax and put the knife down, but reminded her that he would cut her if she did not do what he wanted. He next told the complainant to remove her clothes. The complainant complied and removed almost all of her clothing. Mundon then began touching and kissing the complainant's breasts, doing so on each breast approximately ten to fifteen times. Mundon also told the complainant to touch his penis, but she refused. At one point, Mundon stated to the complainant that, because she probably would tell the police about the incident, it would be easier to kill her and proceeded to retrieve rope and tape from his glove compartment. At that point, the complainant panicked and, in an attempt to get out of the truck, told Mundon that she needed to use the bathroom. Although reluctant at first, Mundon eventually allowed her to exit on the driver's side to use the bathroom. When she was done, the complainant hurriedly got back into the truck through the driver's side, quickly exited on the passenger's side, and began running away. Mundon gave chase, caught up with her, and tackled her to the ground with the complainant ending face down in the sand. A struggle ensued.
During the struggle, the complainant saw that Mundon had the knife in his hand,...
To continue reading
Request your trial
-
State v. Tetu
...based on the facts of the case." State v. Phua, 135 Hawai'i 504, 511–12, 353 P.3d 1046, 1053–54 (2015) ; accordState v. Mundon, 121 Hawai'i 339, 349, 219 P.3d 1126, 1136 (2009). Therefore, questions of constitutional law are reviewed under the right/wrong standard. Phua, 135 Hawai'i at 512,......
-
State Of Haw.‘i v. Kalaola
...a subsequent reversal of the judgment on appeal.” Feliciano, 62 Haw. at 644, 618 P.2d at 311 ; see also State v. Mundon, 121 Hawai‘i 339, 355, 219 P.3d 1126, 1142 (2009) (“That a jury's verdict of acquittal bars a subsequent retrial on those same offenses is ‘perhaps the most fundamental r......
-
State v. Loher
...279, 291, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (White, J., dissenting in part))); State v. Mundon , 121 Hawai‘i 339, 382, 219 P.3d 1126, 1169 (2009) (Acoba, J., concurring in part and dissenting in part) (observing that "Hawai‘i courts have recognized that the Hawai‘i Constitution protect......
-
State v. Won
...greater protections to our citizens than those afforded under the United States Constitution. See, e.g., State v. Mundon, 121 Hawai‘i 339, 365, 219 P.3d 1126, 1152 (2009) (“[W]e are free to give broader protection under the Hawai‘i Constitution than that given by the federal [C]onstitution.......
-
Case Notes
...agree to the specific act that supported each count. The Hawaii Supreme Court held that under State v. Mundon, 121 Hawaii 339, 355, 219 P.3d 1126, 1142 (2009), the family court was required to give a specific unanimity instruction in the circumstances of the instant case. However, the famil......
-
§ 19.07 Out-of-Court Separation of Attorney and Client
...to have the testimony interrupted in order to give him the benefit of counsel's advice." Id. at 281.[37] Id. at 284.[38] State v. Mundon, 219 P.3d 1126, 1153-54 (Haw. 2009) (state constitution) ("[T]he only justifications proffered by the Perry majority for distinguishing Geders were the di......
-
§ 19.07 OUT-OF-COURT SEPARATION OF ATTORNEY AND CLIENT
...to have the testimony interrupted in order to give him the benefit of counsel's advice." Id. at 281.[37] Id. at 284.[38] State v. Mundon, 219 P.3d 1126, 1153-54 (Haw. 2009) (state constitution) ("[T]he only justifications proffered by the Perry majority for distinguishing Geders were the di......