State v. Talo

• Decision Date: 20 May 2022
• Docket Number: CAAP-20-0000457
• Citation: 151 Hawai‘i 166,509 P.3d 1129 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Logovii TALO, Defendant-Appellant
• Court: Hawaii Court of Appeals

151 Hawai‘i 166

509 P.3d 1129 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Logovii TALO, Defendant-Appellant

NO. CAAP-20-0000457

Intermediate Court of Appeals of Hawai‘i.

May 20, 2022

On the briefs:

Jon N. Ikenaga, Deputy Public Defender, for Defendant-Appellant.

Steven S. Alm, Prosecuting Attorney, for Plaintiff-Appellee.

(By: Leonard, Presiding J., Hiraoka, J.; and Circuit Court Judge Ashford, in place of Ginoza, C.J., and Wadsworth, Nakasone and McCullen, JJ., all recused)

MEMORANDUM OPINION

Defendant-Appellant Logovii Talo (Talo ) appeals from the June 18, 2020 Order of Resentencing Revocation of Probation Notice of Entry (Resentencing Order ) entered by the Circuit Court of the First Circuit (Circuit Court ).¹

I. BACKGROUND

A. Procedural History

On April 27, 2016, Plaintiff-Appellee the State of Hawai‘i (State ) charged Talo by Felony Information with Assault in the Second Degree, in violation of Hawaii Revised Statutes (HRS ) § 707-711(1)(a) (2014) and/or HRS § 707-711(1)(b) (2014).² On April 4, 2017, Talo pled no contest to Assault in the Second Degree. On June 29, 2017, the Circuit Court entered a Judgment of Conviction and Probation Sentence Notice of Entry (Judgment of Conviction ), sentencing Talo to four (4) years of probation with special terms and conditions and one day imprisonment, with credit for time already served.

The Form K (plea) provided that the maximum imprisonment/fine was five (5) years and $10,000, with no extended term of imprisonment or mandatory minimum term of imprisonment. Talo's terms and conditions of probation provided, in relevant part:

8. Your further special conditions of probation are as follows: You Shall:

a. Follow all reasonable instructions which are given to you by your probation officer;

b. Not own or possess any firearms or ammunition. If you have any firearms or ammunition, you must immediately turn them in to the appropriate county police department;

YOUR FURTHER SPECIAL TERMS AND CONDITIONS OF PROBATION ARE ATTACHED.

WARNING:

IF YOUR WHEREABOUTS BECOME UNKNOWN TO YOUR PROBATION OFFICER BECAUSE OF YOUR FAILURE TO KEEP HIM/HER INFORMED, THE COURT MAY ORDER YOUR ARREST. UPON ANY FAILURE TO COMPLY WITH EACH OF THE TERMS AND CONDITIONS OF YOUR PROBATION, INCLUDING SPECIAL CONDITIONS, THE COURT MAY REVOKE YOUR PROBATION AND SENTENCE YOUR [sic] TO PRISON OR CHANGE OR ADD TO THE CONDITIONS OF YOUR PROBATION.

YOU ARE FURTHER INFORMED THAT YOU ARE PROHIBITED FROM OWNING OR POSSESSING ANY FIREARM OR AMMUNITION PURSUANT TO HRS § 134-7.

....

YOU SHALL:

....

B. Not own or possess any firearms or ammunition. If you have any firearms or ammunition, you must immediately turn them in to the appropriate county police department;

....

Q. Submit at reasonable times to a search of your person, residence, vehicle, or other sites and property under your control by any probation officer, with or without a warrant, based on reasonable suspicion that illicit substance(s) or other contraband, may be in the place(s) of a search. Any illicit substance(s) or contraband found or observed in such a search may be seized[.]

On June 29, 2017, Talo signed an Acknowledgment of Receipt of Conditions of Probation/DAGP/DANCP Supervision. Talo and his probation officer signed the terms and conditions of probation on July 20, 2017.

On December 6, 2019, the State filed a Motion for Revocation of Probation, Resentencing and Issuance of Bench Warrant (Motion to Revoke Probation ) and moved for the issuance of a Bench Warrant for Talo for violating the terms and conditions of probation pursuant to HRS § 706-625 (2014),³ based in part on the recovery of a firearm and ammunition from Talo's residence stemming from a warrantless search executed on December 6, 2019. According to a Warrantless Search Report, Search Unit Supervisor for the Adult Client Services Branch, Eleanor Kekauoha (Kekauoha ), received confidential information that Talo was in possession of a firearm. On October 7, 2019, Kekauoha contacted the Honolulu Police Department (HPD ) requesting security for a possible warrantless search.

The Warrantless Search Report included that Talo failed to report a correct address and did not report to his probation appointments on October 10 and October 17, 2019. On October 25, 2019, Talo confirmed his correct address.

The report also provided that Kekauoha met with HPD on December 4, 2019, for a briefing concerning the upcoming warrantless search, and she also met with the Adult Probation Search Unit on December 5 and December 6, 2019, for briefing. The Adult Probation Search Unit, with HPD present for security, executed a warrantless search of Talo's residence at approximately 10:00 a.m. on December 6, 2019, which resulted in the recovery of a firearm and ammunition. Talo was then arrested on a Probation Revocation Warrant, as well as for Ownership/Possession Prohibited, Possession of a Prohibited Weapon; however, as discussed herein, Talo was never "conferred" to the prosecutor's office for charges related to such non-probation-related offenses or otherwise charged with those offenses.

The Declaration of Supervising Probation Officer Dwight S. Sakai (Sakai ) accompanied the Motion to Revoke Probation and provided several bases for revoking Talo's probation including, in relevant part:

5. That in a Petition for an Order for Protection, filed on June 28, 2019, in Case Number FC-DA No. 19-1-1456, by [Talo]'s wife, Jenifer L.P. Talo [(Jenifer )], she stated that [Talo] had access to firearm(s) from "family and friends who has weapons." That Petition was dissolved without prejudice as of July 10, 2019;

6. That in a Petition for an Order for Protection, filed on July 26, 2019, in Case Number FC-DA No. 19-1-1676, by [Jenifer], who stated that [Talo] had access to firearm(s) from "family and friends who has weapons." That Petition was dissolved without prejudice as of August 7, 2019;

7. That on December 6, 2019, a warrantless search was executed on [Talo], which resulted in the recovery of ammunition from his vehicle;

8. That [Talo], in the City and County of Honolulu, State of Hawai‘i, and within the jurisdiction of this court and while the terms and conditions of probation were still in effect, violated the terms and conditions of probation as follows:

X That [Talo] failed to report to the [Administrative Risk Management Section (ARMS )] Section on April 3, 2019 and October 10, 2019, despite instructions to do so;

X That on November 7, 2018, [Talo] reported late to his appointment with the ARMS probation officer;

X That [Talo] failed to notify the ARMS Section of the change in his address, prior to moving on March 1, 2019;

X That [Talo] failed report the correct address to the ARMS Section, which resulted in the return of the appointment letter to the ARMS Section, undeliverable, and with a postmark on the envelope, indicating that the address was incorrect;

X That [Talo] failed to notify the ARMS Section of the change in the status of his telephone number, which resulted in the ARMS Section's inability to contact [Talo] by phone on October 21, 2019;

X That a firearm and ammunition were recovered from [Talo]'s residence.

On December 12, 2019, the State filed a Motion to Revoke Bail or, in the Alternative, to Increase [Talo]'s Bail (Motion to Increase Bail ). On December 12, 2019, a Report of Probation Officer was filed, noting that Talo's case was assigned to ARMS and indicated, inter alia , various alleged probation violations. On December 13, 2019, the Circuit Court granted the State's Motion to Increase Bail and bail was set at $100,000.00. On January 10, 2020, a Supplemental Report of Probation Officer was filed providing that the investigation on Talo's pending firearms case was still pending. This report provided:

On January 9, 2020, [HPD] Detective David Lacuata [(Detective Lacuata )], who is conducting the investigation on [Talo]'s pending firearms case, reported that the investigation is still pending.

On January 16, 2020, the Circuit Court held a hearing on the Motion to Revoke Probation, which was based on the alleged violations set forth in Sakai's declaration, including: (1) Talo's failure to report on April 3, 2019, and October 10, 2019; (2) Talo reporting late on November 7, 2019; (3) Talo's failure to notify probation of change of address; (4) Talo's failure to report correct address; (5) Talo's failure to notify probation of change in telephone number; and (6) the firearm and ammunition recovered from Talo's residence. Talo made an oral motion to suppress the evidence gathered as a result of the warrantless search, including the firearm and ammunition (Motion to Suppress Evidence ). The Circuit Court considered the Motion to Suppress Evidence as a challenge to the reasonableness of the warrantless search under State v. Propios, 76 Hawai‘i 474, 879 P.2d 1057 (1994). The Circuit Court also noted:

Let me put this on record before we begin the hearing. I did want to put both sides on notice that the Court does have a concern that by proceeding on the firearm and ammunition probation violation, and if defendant is found guilty of that violation and there's a consequence, and he gets a penalty for that violation, it may create a double jeopardy type problem if the defendant gets a penalty from this court on the firearm and ammunition violation and then he's subsequently charged for the criminal offense based on this firearm and ammunition, which would be the same conduct. I do have concerns, and I've articulated those concerns off record leading up to today, and the State is aware of the Court's concern, but the State still wants to proceed on this violation, right?

As discussed further below, the Circuit Court considered testimony from Talo's wife, Jenifer, probation supervisor Kekauoha,⁴ and probation officer Shawn Naito (PO Naito ).

On January 17, 2020, Kekauoha submitted and filed a Second Supplemental Report of Probation Officer (Second Supplemental Probation Report ), which provided, inter alia , that on September 30, 2019,...