State v. Ortiz
| Decision Date | 17 September 1999 |
| Docket Number | No. 21971.,21971. |
| Citation | 981 P.2d 1127,91 Haw. 181 |
| Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Michael Wayne ORTIZ, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
David Kuwahara, on the briefs, Hilo, for the defendant-appellant Michael Wayne Ortiz.
Diane A. Noda, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellee State of Hawai`i.
The defendant-appellant Michael Wayne Ortiz appeals from the judgment of the third circuit court, filed on August 28, 1998, convicting him of one count of theft in the second degree, in violation of HRS § 708-831(1)(b) (1993).1 Ortiz asserts the following points of alleged error: (1) the circuit court judge should have recused herself for reasons of personal prejudice against the defendant; (2) Ortiz's right to a timely trial, as mandated by Hawai`i Rules of Penal Procedure (HRPP) Rule 48 (1996),2 was violated; (3) the circuit court admitted evidence at trial related to burglaries of which Ortiz had previously been acquitted; (4) the circuit court excluded members of Ortiz's family from the courtroom; (5) the circuit court improperly admitted a witness' taped and written statements at trial; and (6) the circuit court failed to give certain of Ortiz's proposed jury instructions. We agree with Ortiz's points of error (4) and (5). Accordingly, we vacate the circuit court's judgment and remand for a new trial. Although our holdings with respect to the foregoing two points are outcome-dispositive of the present appeal, we address Ortiz's remaining arguments in order to provide guidance to the parties and the circuit court on remand. Cf. State v. Davia, 87 Hawai`i 249, 252, 953 P.2d 1347, 1352 (1998).
On the afternoon of July 3, 1996, the homes of Arlene Awa Masulit and Jeffrey Johnson—both residents of Hawaiian Paradise Park, in the Puna District of the Island of Hawai`i—were burglarized. Electronic equipment was taken from the two homes (including a television, a stereo, and two videocassette recorders (VCRs)), as well as compact discs, a vacuum cleaner, jewelry, power tools, a bag of homemade cookies, and other items. John Rodrigues, an acquaintance of Ortiz, observed Ortiz's blue Honda drive up to and park in front of Masulit's house. Rodrigues drove past Masulit's house, and saw Ortiz and another person hiding near the Honda. Rodrigues asked one of the neighbors to call the police. While Rodrigues was waiting for the police to arrive, he observed Ortiz drive away with another male, who was wearing a red hat.
Also on July 3, 1996, Hawai`i Police Department (HPD) Officer James Kelly was patrolling the Paradise Park subdivision. Soon after Ortiz drove away, Rodrigues observed Officer Kelly and reported what he had seen to the officer. Meanwhile, HPD Officer Brian Miller was patrolling the nearby `Āinaloa subdivision. Apparently acting under instructions from the police dispatcher, Officer Miller stopped Ortiz's blue Honda. Ortiz and a male passenger, wearing a base-ball cap, were in the car. Officer Miller instructed Ortiz to back his car up, but Ortiz instead swerved around Officer Miller's vehicle and drove away. Officer Miller gave chase and advised other police units that Ortiz was "running," but Ortiz eluded him.
Later that afternoon, Lydia Worswick, a resident of the `Āinaloa subdivision, heard loud "banging" noises and observed large objects flying into the bushes outside of her house. When she went to investigate, she observed a blue Honda parked in her driveway. She also observed two young men in the car, whom she later identified as Ortiz and Albert Jardine. When she asked them what they were doing, Ortiz responded that he thought he was at his friend's house. As Ortiz reversed his car out of the driveway, Worswick memorized the Honda's license plate number. Worswick contacted the police and then returned to her yard. She found a number of items, including a television, VCRs, audio equipment, and jewelry, all of which was later identified as the property of Masulit and Johnson.
HPD Officer Gabriel Malani observed Ortiz's car pull out of Worswick's driveway. Jardine was standing on the shoulder of the road. Officer Malani shouted at Ortiz to stop and get out of the car, but Ortiz drove around Officer Malani and raced off. Officer Malani and an officer driving another police car chased Ortiz to Ortiz's home. There, they were joined by Officer Miller, who arrested Ortiz.
Jardine surrendered himself to the police soon after Ortiz was arrested. Jardine was a relative of Ortiz and had been staying with Ortiz at the time of the events in question. When he turned himself in, Jardine stated to several officers that he had participated in burglaries with Ortiz. At trial, however, Jardine recanted and testified that he had committed the burglaries alone, without Ortiz.
On July 10, 1996, Ortiz was charged by amended complaint with two counts of burglary in the first degree, in violation of HRS §§ 707-810(1)(c) (1993),3 as an accomplice;4 and one count of theft in the second degree, in violation of HRS § 708-831(1)(b), see supra note 1, as an accomplice, see supra note 4. With respect to the theft count, the complaint charged Ortiz with having obtained or exerted control over "possessions belonging to ARLENE AWA-MASULIT and/or JEFF JOHNSON, having a value which exceeded $300.00, with intent to deprive ARLENE AWA-MASULIT and/or JEFF JOHNSON of the property." (Capitalization in original.)
Following a trial conducted in November 1996, a jury acquitted Ortiz of both counts of burglary, but found him guilty of theft in the second degree.5 On appeal, in a memorandum opinion filed on January 26, 1998, this court vacated Ortiz's conviction on the ground that Ortiz had been denied the effective assistance of counsel at trial. This court's notice and judgment on appeal, vacating Ortiz's conviction and remanding the matter for a new trial, was filed on March 4, 1998.
On March 4, 1998, Ortiz filed a "Motion To Disqualify Judge." In the memorandum in support of his motion, Ortiz argued that he "believed that Judge Riki May Amano was biased and prejudiced against him, based on his observations of the Court during the previous trial and other proceedings in this case." Ortiz's motion was heard by Judge Greg Nakamura on April 15, 1998. On May 6, 1998, the circuit court entered an order denying Ortiz's motion.
On July 10, 1998, Ortiz filed a motion in limine to exclude, inter alia, evidence of his "alleged participation in the burglaries for which he was acquitted at his first trial." The circuit court denied Ortiz's motion on July 31, 1998, noting that:
On the opening day of Ortiz's new trial, August 12, 1998, the following colloquy took place out of the presence of the jury:
Subsequently, out of the hearing of Ortiz's counsel, the DPA disclosed to the circuit court that Rodrigues, a witness for the prosecution, had reported that Ortiz's sister, Tammy Wong, had been directing threats at him. Nevertheless, Rodrigues testified without incident on August 12, 1998.
On August 17, 1998, the prosecution made an oral motion "to prohibit Ortiz's family from being in the State Building," which contained the courtroom in which Ortiz's trial was being conducted.7 The prosecution did not expressly state the basis for the motion, but it appeared to base the motion on an ongoing investigation, involving at least some of Ortiz's family members, into "jury tampering, witness tampering, intimidating a witness, and possible retaliation against a witness."8 Over Ortiz's objection and without any comment, the circuit court granted the prosecution's motion to prohibit Ortiz's family from being present in the State Building. The circuit court then ordered Ortiz's mother and girlfriend to leave the State Building, adding that, Later that day, Ortiz sought by motion to have the circuit court withdraw its oral order excluding his family.
Following its exclusion of Ortiz's family members from the courtroom, the circuit court undertook an individual voir dire of the jury panel. The prosecution queried the...
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