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State v. Kauhane

Supreme Court of Hawaii

November 12, 2019

STATE OF HAWAI'I Respondent/Plaintiff-Appellee,
v.
KEITH KAUHANE, Petitioner/Defendant-Appellant.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000668; CR. NO. 15-1-0808(4))

          Hayden Aluli for petitioner.

          Gerald K. Enriques (Richard K. Minatoya on the brief) for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          RECKTENWALD, C.J.

         In 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 Haleakala.

         The 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.

         We hold 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) .

         Additionally, 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.

         Accordingly, 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.

         I. BACKGROUND

         On 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.

         On 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.

         A. Circuit Court Proceedings

         1. The Complaint

         After 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);[1] 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 [HRS].

(Emphasis added).

         Notably, the charge did not define "obstructs," which is defined in HRS § 711-1100 (Supp. 2015) as "renders impassable without unreasonable inconvenience or hazard."

         2. Evidence

         At trial, [2] 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."

         Captain 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.

         On 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.

         Sergeant 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."

         Rex 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 the roadway.

         The 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, and physically."

         Kauhane 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 move.

         3. Jury Instructions

         At the 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:

Instruction 17
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.
Instruction 26
"Obstructs" means "renders impassable without unreasonable inconvenience or hazard."

         The jury was also given an instruction on the ...


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