SCWC -14-0000427
Electronically Filed
Supreme Court
SCWC-14-0000427
15-NOV-2015
10:08 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I,
Respondent-Appellee,
vs.
EUGENE PARIS JR.,
Also know as Eugene J.E. Rivera, Jr.
Petitioner-Appellant.
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CR. NO. 12-1-0191
APPLICATION FOR WRIT OF
CERTIORARI FROM THE
MEMORANDUM OPINION FILED ON
JULY 31, 2015
INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
HONORABLE CRAIG H. NAKAMURA
Presiding Judge
HONORABLE DANIEL R. FOLEY
HONORABLE KATHERINE G.
LEONARD
Associate Judges
APPLICATION FOR WRIT OF CERTIORARI
and
APPENDIX
Landsberg Law Office
By: Marcus Landsberg, IV (8158)
1088 Bishop St. #PH Honolulu HI 96813
Telephone (808) 230-7419
Email: [email protected]
Attorneys for Defendant-Appellant Eugene Paris
(SERVICE OF NOTICE OF ELECTRONIC FILING GENERATED BY JEFS) APPLICATION FOR WRIT OF CERTIORARI
Petitioner-Appellant Eugene Paris (Petitioner), Defendant-Appellant in the Intermediate
Court of Appeals (ICA), pursuant to Rule 40.1, Hawai‘i Rules of Appellate Procedure (HRAP),
respectfully prays that a writ of certiorari be issued to review the Memorandum Opinion of the
ICA filed on July 31, 2015, attached at Appendix. As the ICA’s Judgement on Appeal was filed
on September 22, 2015 and a timely extension of an additional thirty days was granted, this
Application may be filed on or before November 21, 2015, pursuant to HRAP 26 and 40.1. This
Court has jurisdiction to entertain this Application pursuant to Hawai‘i Revised Statutes (HRS)
§§ 602‑5 and 602-59.
QUESTIONS PRESENTED
I.
II.
III.
IV.
V.
Whether the ICA gravely erred in concluding that the charging language for Escape in
the Second Degree was sufficient.
Whether the ICA gravely erred in concluding there was sufficient evidence to uphold
Paris’ conviction for Escape in the Second Degree.
Whether the ICA gravely erred by determining the Prosecutor did not commit
misconduct or misstate the necessary state of mind.
Whether the ICA gravely erred by concurring that the Court’s jury instruction was a
correct statement of the law and not an obvious inconsistency with the holding
presented by Question I.
Whether the ICA gravely erred by holding that the trial court did not abuse its
discretion by failing to apply the doctrine of judicial estoppel.
STATEMENT OF PRIOR PROCEEDINGS
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On February 7, 2012, Petitioner was charged via Felony Information1 with Escape in the
Second Degree in violation of HRS § 710-10212. (Record on Appeal (ROA) pdf page number):3
33-34). Hearings on two substantive motions to dismiss were held. The first on December 26,
2012 (Electronic docket number 21) referenced the “contract” issue. The second on July 2, 2013
(Electronic docket number 34) was in reference to the deficient charging language issue.
Following a jury trial, the jury returned a verdict of guilty-as-charged. (ROA: 311.) In its
Memorandum Opinion, the ICA affirmed the conviction and sentence. See Appendix.
STATEMENT OF THE CASE
The facts in this case are largely undisputed. On January 11th, 2012, Petitioner was on
extended work furlough status, where he lived with his mom and worked in the community. The
main witness for the Prosecution was Mr. Villanueva, Petitioner’s assigned case manager.
(10/28/2013 Tr. at 190-191.) Petitioner’s “place of detention” was his mother’s house. (10/28/13
Tr. at 235, l.5-7.)
The Prosecution alleged that the parameters of Petitioner’s supervision were given to him
within two documents that were admitted into evidence. The furlough agreement dated June 14,
1
The Felony Information reads in relevant part:
The Department of the Prosecuting Attorney charges: On or about the 11th day of
January, 2012, to and including, February 2, 2012, in the City and County of Honolulu, State of
Hawaii, EUGENE PARIS, Jr. also known as Eugene J.E. Rivera, Jr., did intentionally escape
from a correctional or detention facility or from custody thereby committing the offense of
Escape in the Second Degree, in violation of Section 710-1021 of the Hawaii Revised Statutes.
2
§710-1021 Escape in the second degree. (1) A person commits the offense of escape in the
second degree if the person intentionally escapes from a correctional or detention facility or from
custody.
(2) Escape in the second degree is a class C felony. [L 1972, c 9, pt of 1; gen ch 1993]
Page citation to the ROA refers to the pdf file of the ROA filed under Docket Number 23 and
25 of the Judiciary Electronic Filing and Service System (JEFS).
3
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2011, accepted into evidence as “State’s Exhibit 1” (Tr. at 200. EROA at 318-320) includes terms
such as a promise not to use credit cards (EROA at 319, para 15), the cost to destroy the smoke
detector in the room (Id. at 320, para 31.), and a promise to pay $50 if Petitioner’s room key is
destroyed. (Id., para 33). The furlough agreement (State’s Exhibit 1) specifically states that a
defendant on a pass must “return to the custody of the Department of Public Safety” under
certain conditions, informing Petitioner that when he is not at Laumaka, he is not in “custody”.
(10/28/13 Tr. at 240-241.)
The second document is the extended furlough agreement from November 30, 2011,
(10/28/13 Tr. at 215.) This was accepted into evidence as State’s Exhibit 2. (Id. at 218. EROA at
322.) This fundamentally changed at least some of the terms of the prior June 14, 2011
agreement. (10/28/13 Tr. at 251.) This was explained to Mr. Paris on November 30, 2011
alongside the “notice of programming” document, which was accepted as State’s Exhibit 3 (Id. at
223. EROA at 324-325.) Neither of the two documents include the term “escape”. In fact, on the
November 30, 2011 meeting where Mr. Paris was given the furlough terms, escape was never
discussed as a punishment. (Id. at 234, l.22-24.) The word “escape” appears zero times in either
November 30, 2011 document. (10/28/13 Tr. at 230.)
In reference to the punishment for not following the conditions of extended furlough, Mr.
Villanueva testified, “I will take him off extended furlough”. (Id. at at 217, l.1-3.) Mr.
Villanueva testified failure to follow the terms of the November 30, 2011 agreement would result
that Mr. Paris “would not be able to continue his participation on extended furlough”. (10/28/13
Tr. at 234, l.9-13.) In addition, the earlier contract of June 14, 2011 states that “any deviation
from the following: date of validity, time expiration, destination, and purpose/intent of the
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furlough pass will result in the processing of a high misconduct violation and referred to the
adjustment hearing process. This may jeopardize continued participation in the furlough program
and may result in transfer from OCCC [Oahu Community Correctional Center].” (Id. at
254-255.) Mr. Paris was specifically told the punishments for not following terms. These
punishments did not include criminal charges.
At trial, Petitioner argued that the second document necessarily overrode the conflicting
terms in the first document. Even if it did not override those terms, violating an extended
furlough “term” is not equivalent to an “Escape” criminal charge under law. Defendant was
authorized to live in Wahiawa and had to check in on Wednesdays at 6 o’clock a.m. (10/28/13 Tr.
at 216.)
On January 11th, 2012 Eugene Paris followed the process required when a furloughee is
unable to return to custody. (10/28/13 Tr. At 257, l.23-25.) Defendant is the one who called the
case manager. (10/28/13 Tr. at 257, l.21-22.) Mr. Villanueva gave him permission to return as late
as 9:00 pm, invalidating the prior pass. (10/28/13 Tr. At 259, l.9-15.)
Defendant was never informed that his work furlough was being canceled. He was never
informed that his mother’s house was no longer his “detention facility”. No evidence was elicited
that Defendant ever stopped living at his mother’s house.
Mr. Villanueva expressed that on January 11, 2012 Defendant is the one who called the
case manager at Laumaka Work Furlough Center. (Id. at 257, l.21-22.) He said Mr. Paris did not
need to return until 9 o’clock at night. (Id. at 259, l.9-15.) Mr. Villanueva explained he knew that
Mr. Paris’ father was in a wheelchair, and his mother needed his help to take care of the dad. (Id.
at 258-259.)
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Moses Fonoimoana, the acting sergeant at Laumaka Work Furlough Center, monitored
the inmates on furlough, and was familiar with Eugene Paris. (10/30/13 Tr. at 7-9.) On January
11, 2013 Mr. Paris called Mr. Fonoimoana to inform him of his inability to return. (10/30/13 Tr.
at 11, l.11-13.) Mr. Fonoimoana testified that, as far as he knew, no one called the defendant, his
family or the employer as a way to find Mr. Paris. (10/30/13 Tr. at 17-18.)
Officer Waldron Chung was the police officer on traffic duty the night of February 2,
2012, looking for impaired drivers. (10/30/13 Tr. at 19-21.) Officer Chung pulled over someone
who identified himself as Mr. Rivera, later admitting to being Eugene Paris. (10/30/13 Tr. at
19-27.) Upon finding out there was a warrant for Mr. Paris’ arrest, Mr. Paris was placed under
arrest for this instant charge, there were no separate charges filed. (10/30/13 Tr. at 27.) Officer
Chung recognized an “open wound” on Mr. Paris’ hand and took Mr. Paris directly to Waianae
Comprehensive first. (10/30/13 Tr. at 30-31.) Officer Chung recognized none of the “classic
signs of intoxication”, nor was a Drug Recognition Expert called to ascertain evidence of drug
use. (10/30/13 Tr. at 37-42.)
REASONS WHY THE WRIT SHOULD BE GRANTED
1. THE FELONY INFORMATION FOR ESCAPE IN THE SECOND DEGREE WAS
FATALLY INSUFFICIENT BECAUSE IT FAILED TO PROPERLY ALLEGE ALL OF
THE NECESSARY ELEMENTS, I.E., ATTENDANT CIRCUMSTANCES, NECESSARY
TO CONVICT.
The Felony Information alleges “Eugene J.E. Rivera, Jr. did intentionally escape from a
correctional or detention facility or from custody.” “Detention facility” and “custody” each have
a specific legal definition in Hawaii Revised Statutes (“HRS”) § 710-1000. "Custody" means
“restraint by a public servant pursuant to arrest, detention, or order of a court.” “Detention
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facility” includes any place “otherwise confined pursuant to order of a court”. Defense preserved
this argument by filing a Motion to Dismiss Complaint for Failure to State an Offense. (See
EROA at 177-188.)
Leaving out this definition is a classic Wheeler4 violation: “here the definition of an
offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense
in the same generic terms as in the definition; but it must state the species . . . and descend to
particulars.” In the instant case “custody” was interpreted multiple ways.
The trial court could not have expressed the multiple definitions of “custody” more
clearly than when it overruled Petitioner’s objection to Respondent’s odd use of the word
“custody” during opening statement. The Court stated:
“Well, there's the legal term custody. There's also custody in a general sense,
which means confinement. So I understand what you're saying. But at this point
I'm going to overrule the objection.”
10/28/13 Tr. at 177, l.23 - p.178, l.1.
These two rulings the Court made are diametrically opposed to each other. In response to
the Defense’s July 2, 2013 motion that the meaning of “custody” in the charging document is
unclear, the court ruled it is clear. In response to the Prosecutor using a general, rather than legal,
implication of custody, the Court points out the different meanings and allows the Prosecutor to
continue. This is fundamentally unfair to the Petitioner and a violation of Wheeler. If custody is a
recognized legal term, relevant to this case, as well as a “general sense”, it is not sufficient that
the indictment shall charge the offense in the same generic terms as in the definition; but it must
state the species and descend to particulars. These two rulings cannot hold in the same case.
4
State v. Wheeler, 121 Haw 383, 393, 219 P.3d 1170, 1180 (2009).
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In addition, “custody” took on a third definition when State v. Smith5 was referenced,
including the jury instruction discussed in Reason 4, supra. This is proof of the incompleteness
of the charging document. At a hearing held on July 2nd, 2013, the Honorable judge suggested a
third, uncharged way Defendant could get convicted of Escape in the Second Degree by quoting
Smith . The Court quoted “while the facility did not have actual physical control over the minor
at the time, he is alleged to have escaped and had control and custody in the sense that the minor
was released on furlough, not as a free person but one legally bound by restrictions, end
quote.” (7/2/13 Tr. at 4, l.6-15.) This added another definition to confuse Petitioner, as a person
“bound by restrictions” is not the statutory definition, nor the “general sense” definition of
custody. Petitioner never knew what he was being charged with, as the definition of custody kept
changing.
The practical ramifications of this Wheeler violation included Petitioner failing to
understand that the charge against him was about being in a specific legal definition of custody,
when he thought he was out of custody, based on the information of both of State’s Exhibits 1 &
2 and the “general sense” meaning of the word custody, recognized by the seated judge.
2. THERE WAS INSUFFICIENT EVIDENCE TO UPHOLD PARIS’ CONVICTION FOR
ESCAPE IN THE SECOND DEGREE.
The Felony Information in the instant case requires that Petitioner escape the detention
facility where he is being held. While the State’s case focused on Petitioner escaping custody,
there is zero evidence alleged that he ever left his mother’s house outside of the guidelines
provided.
5State
v. Smith, 58 Haw. 456, 583 P.2d 337 (1978).
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While it is conceded by the Defense that he may have missed a check in at the Laumaka
correctional facility, that was only a check in. Smith clarifies an additional type of escape for not
returning to custody after a short term pass. Petitioner was not on a short term pass, his
undisputed place of detention was his mother’s house.
Missing a term and condition of work furlough does not create an Escape in the Second
Degree charge. No where in the law or in the documents provided to Petitioner is it ever
suggested that if he misses a check-in appointment, it will be treated as if he escaped the prison
facility. Failures to cooperate with check-in procedures are specifically addressed in the State’s
exhibits, none include prosecution. 6
Furthermore, Noel Villanueva, whose job it is to determine and inform Petitioner of
where Petitioner’s detention facility is, testified that “[Petitioner’s mother’s] house would
become his new place of detention”. (10/28/13 Tr. at 235, l.1-9.) Once that occurs, state must
disprove that Petitioner was still residing at his detention facility 7.
In addition to the lack of evidence to prove an actual escape from his mother’s house.
There is zero evidence of an intent to escape from his place of detention or custody, his mother’s
house. With no evidence of escape from his place of detention, or even evidence of intent to
6
10/28/13 Tr. at 257.
Compare State v. Yee, 630 P.2d 129 (1981) referencing trespassing: “By the testimony of the
hotel's own personnel, appellants were not unlawfully on the premises if they were invited by
guests. The State did not prove that the appellants were not invited upon the premises by guests
of the hotel. The burden in a criminal case is upon the State to prove every essential element of
its case. It did not prove that appellants were unlawfully on the premises at the times in
question.” Comparably, if the Defendant has been legally placed at a detention facility, the State
must prove that he escaped that facility. In this case the State argued he never arrived at a
different “correctional facility” with no reference to where he was actually assigned.
7
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escape from his place of detention, there is insufficient evidence to find Petitioner guilty of
Escape in the Second Degree.
Petitioner’s presence in a car on February 2, 2012 is inapposite to this case. There are no
terms and conditions entered into evidence that disallow night driving. Nothing about that drive
suggest his “detention facility” or place of custody was not still at his mother’s house.
3. PROSECUTION ARGUED “INTENTIONALLY” WHILE USING EXAMPLES OF
KNOWINGLY
During Closing arguments the Prosecution argued examples of the “knowingly” state of
mind in spite of the fact that the standard for State of Mind alleged was “intentionally”. Defense
made a motion for a mistrial, or in the alternative a motion to inform the jury of the “knowing”
jury instruction. (10/30/13 Tr. at 114 l.24 to 115 l.11.) The circuit court denied both parts of the
motion and did not give a curative instruction “To the extent you feel it prejudices your client,
then a motion for a mistrial was made. I’ll also deny that motion.” (Id. at l.16-23.)
For example, during closing argument, the prosecutor argued:
[I]t’s absolutely clear that the furlough agreement is in full effect during the entire
period the defendant is on furlough, whether it be regular furlough or the -another privilege, extended furlough. It's absolutely crystal clear. And that's why
Mr. Villanueva goes through the terms, makes sure he answers any questions that
the defendant has. That's why the defendant initials and signs.
(10/30/13 Tr. at 108 l.17-25. Emphasis added.)
It's abundantly clear the defendant has to check in with Mr. Villanueva at
Laumaka every Wednesday at 6:00 A.M. How do we know that it is clear the
defendant absolutely understood this?
(Id. at 109 l.25 to 110 l.1-4. Emphasis added.)
He knew crystal clear where he needed to be, number 1, to meet with Mr.
Villanueva and, number 2, to get another extended furlough pass. (Id. l.10-13.
Emphasis added.)
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He understood and agreed that when called he needed to return back to Laumaka
in a timely manner.
(Id. l.18-20. Emphasis added.)
All of these imply “understanding” as opposed to “conscious object”. Prosecution started
with this theme in Opening Statement: “[T]he defendant acknowledges that he understands if
he is contacted by any employee at Laumaka Work Furlough Center and told he needs to come
back and report immediately he must do so.” (10/28/13 Tr. at 176, l.1-4. Emphasis added.) This
confusion of the standards persuaded the jury that “knowledge” was enough, and caused
Petitioner to be convicted accordingly.
4. WHETHER THE ICA GRAVELY ERRED BY CONCURRING THAT THE COURT’S
JURY INSTRUCTION WAS A CORRECT STATEMENT OF THE LAW AND NOT AN
OBVIOUS INCONSISTENCY WITH THE HOLDING PRESENTED BY QUESTION I.
The Court provided a Jury instruction that was outside the Hawaii Pattern Jury
Instructions that was inapplicable to the instant case and sent the wrong message to the jury.
When jury instructions or the omission thereof are at issue on appeal, the standard of review is
whether, when read and considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading.8 The following jury instruction invaded the
province of the jury to decide the case and directed the verdict:
An escape may be perpetrated by a person even though he is not in actual physical
custody or under immediate control and supervision of a guard. A person may be
deemed to be in custody when released from a correctional or detention facility on
furlough and legally bound by restrictions. (10/30/14 Tr. at 100 l.25-p.101 l.5.)
This jury instruction informs the jury of something the Petitioner was never made aware,
that “terms and conditions” may predicate an Escape in the Second Degree conviction, instead of
8
State v. Flores, 131 Haw. 43, 57-58, 314 P.3d 120, 134-35 (2013) internal citations deleted.
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the elements of the charge. This directs the verdict and redefines the necessary attendant
circumstances.
For the Prosecutor to need a Jury instruction to clarify the meaning of “custody”, when,
as discussed supra in Argument 1, the Prosecution’s stance is that the meaning of custody is so
clear to a person of ordinary understanding as to not need clarifying language in the complaint is
fundamentally unfair to the Defendant and contributes to his lack of understanding of the crime
charged. In addition, “terms and conditions” or “legally bound by restrictions” is not a phrase
that appears in the legal definition of custody or detention facility, and is an after-the-fact
addition outside the legal definition of what Escape contains. Again, this prejudices the
Defendant to not know what the charge is against him, as well as it not even being what the
charge is supposed to be.
This instruction was based on State v. Smith, 59 Haw. 456, 583 P.2d 337 (1978). In
Smith, a juvenile defendant is released from Hawaii Youth Correctional Facility to return the
same day at 7:00 pm and fails to do so. In Smith the correctional facility was the Defendant’s
place of detention. In this fact situation, Petitioner had a place of detention, as assigned by the
government, that was outside the correctional center. For that reason, the instruction is not
applicable to Petitioner, and the State must prove he escaped custody as applicable to Petitioner
not someone who is involved in an entirely different circumstance.
5. WHETHER THE ICA GRAVELY ERRED BY HOLDING THAT THE TRIAL COURT
DID NOT ABUSE ITS DISCRETION BY FAILING TO APPLY THE DOCTRINE OF
JUDICIAL ESTOPPEL.
On December 26, 2012 The Prosecution won a motion to dismiss with the argument that
“State would argue there was no contract.”(12/26/12 Tr. at 7. Emphasis added.) The Prosecution
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showed up for trial on October 28, 2013 holding the opposite position, calling the documents
involved a “contract” throughout the entire case.
Petitioner relied on this representation, as well as the doctrine of Judicial Estoppel in
State v. Anger, 105 Haw. 423, 433, 98 P.3d 630, 640 (2004): “[a] party will not be permitted to
maintain inconsistent positions or to take a position in regard to a matter which is directly
contrary to, or inconsistent with, one previously assumed by him”.
Due to State’s new position, Petitioner’s Constitutional Right to a Fair Trial, and Right to
be Informed of the Charges Against Him were infringed. Defendant was unable to switch gears
quickly enough to make this at trial about contractual “terms and conditions” rather than a trial
about the elements as listed in the charge for Escape in the Second Degree.
Had the Prosecutor maintained a consistent position, Defense would have won the motion
to dismiss on December 26, 2012. Alternatively, the switching of this argument at the last minute
caused the Defense to be caught in a trial-by-ambush as the government abandoned their prior
theory of the case on the fly.
CONCLUSION
Based on the above, Petitioner respectfully requests that this Court review the ICA’s
Memorandum Opinion and reverse the order affirming Petitioner’s conviction.
DATED: Honolulu, Hawai‘i, November 13, 2015.
Respectfully submitted,=
BY: _/s/ MARCUS L. LANDSBERG IV____________
MARCUS L. LANDSBERG IV
ATTORNEY FOR PETITIONER-APPELLANT
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