CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000668; CR. NO. 15-1-0808(4))
Aluli for petitioner.
K. Enriques (Richard K. Minatoya on the brief) for
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
2016, Keith Kauhane was convicted of Obstructing after
participating in a demonstration against the construction of
the Daniel K. Inouye Solar Telescope (DKIST) on the summit of
Intermediate Court of Appeals (ICA) vacated the conviction
based on an error in the jury instructions, and remanded for
a new trial. See State v. Kauhane, 144 Hawai'i
109, 112, 436 P.3d 1192, 1195 (App. 2018). Nevertheless, on
certiorari, Kauhane asks this court to further determine: (1)
whether the ICA erred in determining that the State's
complaint was sufficient, despite its failure to define the
statutory term "obstructs"; and (2) whether the ICA
erred in its analysis of a "golden rule" objection
made by the State during Kauhane's closing argument.
that the complaint was defective. By failing to include the
statutory definition of "obstructs," the complaint
omitted an essential element of the offense of Obstructing
and did not apprise Kauhane of what he was required to defend
against. Even under the "liberal construction"
standard applicable to charges challenged for the first time
on appeal, the complaint cannot within reason be construed to
charge a crime. State v. Motta, 66 Haw. 89, 657 P.2d
1019 (1983); State v. Wells, 78 Hawai'i 373, 894
P.2d 70 (1995) .
although the ICA correctly concluded that defense counsel did
not make an improper "golden rule" argument, we
disagree with the ICA's conclusion that the argument was
otherwise improper because it misstated the law.
we vacate the ICA's judgment, and remand to the Circuit
Court of the Second Circuit (circuit court) with instructions
to dismiss the Obstructing charge without prejudice.
August 20, 2015, the Maui Police Department's Specialized
Emergency Enforcement Detail (SPEED) team, led by Captain
Clyde Holokai (Captain Holokai), was assigned to accompany
construction vehicles and equipment from the Central Maui
Baseyard in Kahului to the DKIST construction site at the
summit of Haleakala.
Crater Road, the convoy encountered fifteen to twenty
protestors blocking the roadway, standing shoulder to
shoulder. When those protestors eventually cleared, seven
more protestors were revealed, sitting in the middle of the
roadway, chanting and praying. These seven protestors,
including Kauhane, were arrested.
Circuit Court Proceedings
his arrest, the State charged Kauhane with: (1) Failure to
Disperse, in violation of Hawai'i Revised Statutes (HRS)
§ 711-1102 (2014); (2) Obstructing, in violation of HRS
§ 711-1105 (1) (a) (2014); and (3) Disorderly Conduct, in
violation of HRS § 711-1101(1) (d) (2014). The complaint
set forth the Obstructing charge as follows:
Count II: [Obstructing]
That on or about the 20th day of August, 2015, in
the County of Maui, State of Hawai'i, KEITH KAUHANE,
whether alone or with others and having no legal privilege to
do so, did knowingly or recklessly persist to
obstruct any highway or public passage, after a
warning by a law enforcement officer to move to prevent or to
cease such obstruction, thereby committing the offense of
Obstructing in violation of Section 711-1105 (1) (a) of the
the charge did not define "obstructs," which is
defined in HRS § 711-1100 (Supp. 2015) as "renders
impassable without unreasonable inconvenience or
trial,  the State called four witnesses to
describe the protest scene. Captain Holokai explained that it
was "very dim" when the convoy encountered the line
of standing protestors, and that the road was "very
steep and narrow." Captain Holokai further testified
that as he approached the line of protestors with the SPEED
team, he and the other officers "repeatedly ordered [the
protestors] to get off the roadway."
Holokai testified that he first encountered Kauhane as the
line of standing protestors dispersed. Because of
Kauhane's position in the middle of the road, and the
positions of the other sitting protestors, Captain Holokai
explained that the convoy could not have continued past them.
Captain Holokai testified that the SPEED team had to
"physically pry" the sitting protestors apart, and
that even after being handcuffed, "they wouldn't
walk." As such, he explained, each of the seven
protestors had to be removed from the roadway by stretcher.
cross-examination, Captain Holokai explained that it took
about five minutes to remove Kauhane from the roadway.
Although Captain Holokai admitted that he did not
specifically warn Kauhane that he would be arrested if he did
not move to the side of the road, Captain Holokai explained
that he had given this warning multiple times to the
protestors standing in front of Kauhane.
Russell Kapahulehua (Sergeant Kapahulehua) confirmed the
events described by Captain Holokai and stated that the
protestors had created a "dangerous situation."
Sergeant Kapahulehua testified that although Captain Holokai
might not have specifically warned Kauhane that he could be
arrested, he recalled that Captain Holokai's general
warnings to the group of protestors were announced "very
loudly" and that the standing and sitting protestors
"were all pretty close together."
Hunter (Hunter), the DKIST's project manager, as well as
Ervin Pigao (Pigao), an employee with the State's
Department of Transportation (Department), also testified for
the State. Hunter, who had accompanied the convoy, testified
that the materials being transported were
"extraordinarily wide," and that were the materials
to fall, they "could kill someone." He further
testified that the convoy had to stop multiple times because
of protestors as it made its way to the summit. Pigao, who
did not accompany the convoy, added that he had checked the
Department's records, and could confirm that the
Department had not issued any licenses or permits to block
defense first called Professor Hokulani Holt-Padilla
(Professor Holt-Padilla) to testify as an expert in the field
of Hawaiian custom, culture, history, and religion. Professor
Holt-Padilla explained that Haleakala was one of the
"most significant cultural and religious sites on
Maui" for Native Hawaiians. Construction of the DKIST,
she explained, was not just a "desecration" and an
"affront" to the Hawaiian culture, but would also
affect many Native Hawaiians "emotionally, spiritually,
then testified that DKIST's construction had caused him
"serious emotional harm," and that as long as the
telescope continued to be built, he and other Hawaiians would
be harmed. Kauhane thus testified that he went to Crater Road
to pray and to protest the mountain's desecration. He
acknowledged that by going to Crater Road, he had also meant
to stop the transport of the DKIST's materials, and that
while praying, he was "obstructing" the middle of
the road. Despite this, Kauhane denied hearing the SPEED
team's warnings that he would be arrested if he failed to
close of evidence, the following instructions, which were
agreed upon by both parties, were read to the jury with
regard to the offense of Obstructing:
In Count Two of the Complaint, the Defendant, KEITH KAUHANE,
is charged with the offense of Obstructing. A person commits
the offense of Obstructing if, whether alone or with others
and having no legal privilege to do so, the person knowingly
or recklessly persists to obstruct any highway or public
passage, after a warning by a law enforcement officer to move
to prevent or to cease such obstruction. There are three
material elements of the offense of Obstructing, each of
which the prosecution must prove beyond a reasonable doubt.
These three elements are:
[(1)] [T]hat on or about August 20, 2015, in the County of
Maui, State of Hawai'i, the Defendant, whether alone or
with others and having no legal privilege to do so,
obstructed any highway or public passage;
[(2)] [T]hat the Defendant persisted to obstruct any highway
or public passage, after a warning by a law enforcement
officer to move to prevent or to cease such obstruction; and
[(3)] [T]hat the Defendant did so knowingly or recklessly as
to the above elements.
"Obstructs" means "renders impassable without
unreasonable inconvenience or hazard."
jury was also given an instruction on the ...