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State v. Deguair

Supreme Court of Hawaii

October 31, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
PATRICK DEGUAIR, JR., Petitioner/Defendant-Appellant.


          Dwight C.H. Lum for petitioner.

          James M. Anderson for respondent.



          McKENNA, J.

         I. Introduction

         This case arises out of the 2008 robbery of the Aiea Cue, in which three intruders restrained four individuals inside a pool hall and stole cash and other valuables. Two of the intruders, Ju Young Woo ("Woo") and David Teo ("Teo"), entered into cooperation agreements with the State, and the third intruder, Patrick Deguair, Jr. ("Deguair"), continued on to a jury trial. Deguair's defense was that Woo and Teo coerced him into participating in the crime. The jury found Deguair guilty on all counts: Count 1 (Robbery in the Second Degree, a class B felony), Count 2 (Kidnapping as a class A felony), and Counts 3, 4, and 5 (Kidnapping as a class B felony). The jury also answered interrogatories finding that each act of kidnapping was committed as a continuing course of conduct, with no separate and distinct intent from the robbery. Therefore, pursuant to Hawai'i Revised Statutes ("HRS") § 701-109(1)(e) (2014), which prohibits multiple convictions for offenses committed as a continuing course of conduct, the Circuit Court of the First Circuit[1] merged Count 1 (the robbery, a lesser grade class B felony) into Count 2 (one of the kidnappings, a higher grade class A felony).

         On appeal, Deguair argued that the circuit court erred in convicting him of kidnapping as a class A felony on Count 2, as he was entitled to the mitigating defense, [2] which would have reduced the kidnapping to a class B felony. A majority of the Intermediate Court of Appeals ("ICA") agreed, vacating the circuit court's Judgment of Conviction and Sentence as to Count 2 as a class A felony and remanding the case for entry of a judgment of conviction on Count 2 as a Class B felony and for resentencing solely on Count 2. State v. Deguair, CAAP-13-0000061 (App. Feb. 27, 2015) (mem.) at 3. The ICA rejected Deguair's other points of error and affirmed the circuit court's judgment with respect to the convictions and sentences on Counts 3, 4, and 5. Deguair, mem. op. at 16.

         On certiorari, Deguair argues that all of his convictions are now of the same class (class B felonies). He contends that HRS § 701-109(1)(e) requires the kidnapping convictions to be "merged" into the robbery conviction. He also asserts that the ICA gravely erred in holding that the circuit court properly excluded prior bad act evidence that Woo and Teo were violent, worked for O'ahu criminal organizations providing protection, and needed money. Deguair also contends that the ICA gravely erred in holding that the circuit court properly declined to declare a mistrial after the prosecutor questioned Deguair about whether he and Teo had shot guns at the Koko Head shooting range.[3]

         We hold that the ICA did not err in concluding that the circuit court did not abuse its discretion in granting the State's motion in limine as to the prior bad acts of Teo and Woo. We also hold that the ICA did not err in concluding that the circuit court did not abuse its discretion in declining to declare a mistrial. We hold, however, that the ICA erred in remanding this case for resentencing solely on the kidnapping conviction, foreclosing the possibility that the kidnapping convictions could merge into the robbery conviction. We hold that, under HRS § 701-109(1)(e), Deguair committed the kidnappings as part of a continuous course of conduct in committing the robbery; therefore, the kidnapping convictions should merge into the robbery conviction. Accordingly, we vacate the ICA's April 21, 2015 Judgment on Appeal, and the circuit court's January 2, 2013 Judgment of Conviction and Sentence. On remand, the circuit court is directed to reinstate Deguair's conviction on Count 1[4], to dismiss the convictions on Counts 2, 3, 4, and 5, and to resentence Deguair on Count 1 only, pursuant to HRS § 701-109(1)(e), as the kidnapping convictions merged into the robbery conviction.

         II. Background

         A. Indictment

         On May 21, 2008, the State filed an Indictment against Deguair, Woo, and Teo alleging that they committed Robbery in the First Degree (Count 1), in violation of HRS § 708-840(1)(b)(ii) (2014).[5] The Indictment also alleged that they kidnapped Paul Beltran (Count 2), Ruth Lemons (Count 3), John Llacuna (Count 4), and Talagu Moliga (Count 5), all in violation of HRS § 707-720(1)(e) (2014).[6] Before trial, both Woo and Teo entered into plea agreements and agreed to testify for the State, and Deguair proceeded to trial on his own.

         B. The State's Motion in Limine No. 2

         On August 29, 2012, the State filed a Motion in Limine No. 1 requesting an order from the circuit court compelling Deguair to disclose "any and all evidence the defense intends to use" to support the anticipated duress[7] and choice of evils[8] defenses.

         That same day, Deguair's counsel sent the State two letters setting forth prior bad act evidence concerning Teo and Woo that Deguair intended to proffer. Two days later, on August 31, 2012, the State filed a Motion in Limine No. 2 seeking to preclude reference to the following allegations:

1. David Teo is/was known as a strong arm and debt collector for Oahu crime organizations.
2. David Teo participated in the "taxing" of legal and illegal gambling businesses for protection of their businesses.
3. In [sic] or about March 2008, David Teo smashed a man's face into the windshield of a car while attempting to collect money from the man, in the parking lot of Tony Roma's restaurant in Pearl City.
4. David Teo told Defendant Patrick Deguair, Jr. that he (David Teo) had just gotten out of jail and "needed this take."
5. David Teo said to Defendant Patrick Deguair, Jr., "Remember what happened to the guy in the parking lot."
6. Ju Young Woo protected criminal organizations operating in the Pearl City and Aiea Communities.
7.Ju Young Woo received and sold stolen motor vehicle parts.
8. Ju Young Woo collected money for drug dealers.
9. Ju Young Woo beat several people with a metal pipe on the bike path near the ABC Used Auto Parts.
10. Aiea Cue was not paying its "tax" for protection to "the Samoans."
11. Ju Young Woo needed money to pay a lawyer for representation concerning an arrest for stealing a tractor.

The State objected to the timing of the disclosure of this HRE Rule 404(b) evidence, as the trial had been pending for four years, and Deguair provided notice to the State of these bad acts with only two weeks before the start of trial.

         At a hearing on the motion, Deguair's counsel argued that the bad act evidence was relevant to his duress and choice of evils defenses. Specifically, he argued that the jury needed to know what Deguair knew of Teo and Woo in order to judge whether a person of reasonable firmness would have been able to resist these men. The State counter-argued that the probative value of the evidence was "so attenuated" that it was "outweighed by 403 concerns. . . ."

         The circuit court ruled as follows:

I am going to . . . specifically make that 403 determination that any probative value this might have along the lines that [Deguair's counsel] has brought up as to that element of the duress defense . . . would be I think substantially outweighed by the danger of unfair prejudice and confusion of the issues, et cetera. . . . I'm going to grant the State's motion to preclude all of these except . . . three and five. Because . . . that is a threat, certainly an implied threat, the use of force that would go directly to the Defense's duress defense which I'm strongly inclined to include in this case when it goes to the jury.

         C. Trial

         1. Undisputed Facts

         The facts about the robbery elicited at trial are not disputed. Deguair did not deny his participation (with Teo and Woo) in robbing the Aiea Cue and kidnapping four individuals who were there. Instead, Deguair's primary defense was duress. He claimed he took part in Woo's plan because he was scared of Teo.

         The facts elicited at trial regarding the events of April 3, 2008 were as follows. At closing time at the Aiea Cue, four friends remained on the premises: John Llacuna (the cashier), Ruth Lemons (Llacuna's girlfriend), Paul Beltran (who helped with cleaning and odd jobs), and Tony Moliga (security and parking lot attendant). Beltran was at the back door trying to lock it, when he heard knocking. Llacuna went to the door, when it suddenly burst open, and Teo, Deguair, and Woo entered.

         Beltran ran toward the front door, and Teo pursued him, tackled him to the ground, handcuffed him behind his back, and left him face-down on the ground. Llacuna, Lemons, and Moliga were herded to the rear of the Aiea Cue and ordered to lie face down and to relinquish their cell phones. Teo later carried Beltran over to them.

         It appeared that the three intruders were working together. Deguair used a crowbar to strike and redirect the videocameras. Woo used a torch to cut open the ATM and coin machine. The cash register was also opened with a nearby key. Teo, Deguair, and Woo exited the Aiea Cue after taking money and other property.

         2. Testimony of Woo

         The State called Woo who testified that he met Deguair shortly before the Aiea Cue robbery. Woo explained that Deguair was the mastermind behind the robbery and assigned Woo the job of cutting open the ATM and change machine, assigned Teo the job of getting people on the ground, and gave himself the job of redirecting the videocameras. Woo testified that he did not force Deguair to participate in the robbery, and that Deguair participated willingly. At the close of Woo's testimony, the State rested.

         3. Testimony of David Teo

         The defense called Teo, an acquaintance of Deguair's. He testified that the robbery was Deguair's plan, that he did not force Deguair to make a plan, and that Deguair participated willingly in the robbery.

         4. Testimony of Patrick Deguair, Jr.

         Outside the jury's hearing, before Deguair took the stand, Deguair's counsel asked the circuit court if he could elicit testimony that Deguair was afraid of Woo because he saw Woo kill a man in March 2008. The circuit court decided to allow the testimony to come in.

         Deguair then took the stand. He testified that he witnessed Teo "walk[] up behind [a] guy and smash[] his head into" a car windshield, bloodying the man's face, and causing the man to pass out on the ground. He testified that Teo told him to buy an ...

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