State v. Leus

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-NOV-2023
07:49 AM
Dkt. 216 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
OLEG LEUS, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC151001754)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant Oleg Leus (Leus) appeals from the

Judgment of Conviction and Probation Sentence, entered by the

Circuit Court of the First Circuit on February 6, 2018. 1 Upon

careful review of the record and the briefs submitted by the

parties, and having given due consideration to the arguments

advanced and the issues raised, we affirm.

1 The Honorable Rom A. Trader presided.
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I. Background

On November 4, 2015, the Plaintiff-Appellee State of

Hawaiʻi (State) charged Leus by criminal indictment with Assault

Against a Law Enforcement Officer in the First Degree, in

violation of Hawaii Revised Statutes (HRS) §§ 707-712.5(1)(a)

(2014) (Count 1), and Harassment, in violation of 711-1106(1)(a)

(2014) (Count 2). Following a trial, at which Leus was self-

represented, 2 the jury found Leus guilty of the Count 1 included

offense of Assault Against a Law Enforcement Officer in the

Second Degree, and Harassment. On February 6, 2018, the circuit

court sentenced Leus to a one-year term of probation for

Count 1, and a six-month term of probation for Count 2, with

both terms to run concurrently.

Leus timely appealed. 3 His opening brief raises seven

points of error on appeal, each of which this court considers in

turn.

2 Prior to trial, Leus was consecutively represented by four
attorneys. These attorneys withdrew in turn from representing Leus with the
circuit court's approval. Leus elected to represent himself at trial, with
court-appointed counsel Walter J. Rodby (Rodby) appearing as standby counsel.

3 Leus is represented on appeal by William K. Li.
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II. Discussion

A. Waiver of Counsel

Leus contends that his waiver of counsel "was

insufficient because the trial court did not adequately advise

him of the pleas and defenses available, the punishments that

may be imposed, and that a disruption of the trial could lead to

vacation of the right to self-representation." "When a

defendant elects to proceed pro se, the record must indicate

that the defendant was offered counsel, but he or she

voluntarily, knowingly, and intelligently rejected the offer and

waived that right." State v. Phua, 135 Hawaiʻi 504, 512,

353 P.3d 1046, 1054 (2015)(citation omitted). The waiver of

counsel must be unequivocal, and voluntarily and freely made.

Id. We review questions of constitutional law under the

right/wrong standard. Id.

The Hawaiʻi appellate courts have adopted three

"specific waiver inquiry" factors for courts to consider when

determining whether the right to counsel was properly waived,

(1) the particular facts and circumstances relating to the
defendant that indicate the defendant's level of
comprehension; (2) the defendant's awareness of the risks
of self-representation; and (3) the defendant's awareness
of the disadvantages of self-representation.

Phua, 135 Hawaiʻi at 512, 353 P.3d at 1054 (citing State v.

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Dickson, 4 Haw.App. 614, 619-20, 673 P.2d 1036, 1041-42 (1983)).

Upon review of the record, we conclude that all three Dickson

factors were satisfied, and that Leus voluntarily, knowingly,

and intelligently waived his right to counsel.

The first factor, "the particular facts and

circumstances relating to the defendant that indicate the

defendant's level of comprehension[,]" is established by the

circuit court's inquiry into Leus's background, education,

ability to understand English, and mental capacity. Phua,

135 Hawaiʻi at 513, 353 P.3d at 1055 (recognizing "circumstances"

pertaining to a defendant's "level of comprehension" as

including "age, education, English language skills, mental

capacity, employment background, and prior experience with the

criminal justice system"). Leus testified, in response to the

circuit court's questions, that he was fifty-seven years old at

the time of trial, originally from Ukraine, and that he had

"college and four years of university" studying "[b]uilding

engineering" and architecture. Leus also testified that he had

been living in the United States for twenty years, acknowledged

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that he had the ability to understand and speak English, and

confirmed that he was "thinking clearly today." 4

4 Leus, by his own choice, responded to the circuit court primarily
in English. The circuit court instructed Leus that he could utilize the
assistance of the translator who had been provided for him as follows,

All right. First things first for you, Mr. Leus. I
know you understand a fair bit of English, and you have a
tendency sometimes when we're in court to communicate and
respond in English. For purposes of our record, to make
sure that we're clear about everything, the Court's going
to instruct you to rely on Mr. Druker to translate any and
all questions or matters that are occurring in court for
you, and that if a response is required from you or you
need to say something in response, then I'm going to ask
that you allow Mr. Druker to translate for you. Is that
all right with you?[]

You can be seated.

MR. LEUS: I inability to speak myself in some
periods?

THE COURT: All right. So let me ask you this. It
sounds like what you're about to say –- and you can correct
me if I'm wrong –- is that if you're comfortable responding
in English, you would rather do that, is that correct, and
then only use Mr. Druker when you're not, when you need his
assistance to understand what you're hearing and also to
respond. Is that what you would prefer?

MR. LEUS: Yes, partially, yes, yes.

THE COURT: Okay. All right. So in order to make
sure that we're able to get everything down on the record,
it's going to be very important that we wait for the
question or comment to be stated, and then if you feel
comfortable, then please respond. If not, then indicate to
Mr. Druker, and he will translate for you and then your
response, okay. Alls [sic] I'm saying is that we need to
go very sort of deliberately about this to make sure that
we get an accurate record. Do you understand, Mr. Leus?

MR. LEUS: (Through the interpreter) So does this
mean that I have no right to speak at all or only --

THE COURT: No, not at all, Mr. Leus. Alls [sic] I'm
saying is that because we have Mr. Druker's assistance,
generally my suggestion to people is that to make sure that
they understand everything and are able to communicate
(continued . . .)
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The record reflects that the circuit court also

satisfied the second and third Dickson factors — namely, "the

defendant's awareness of the risks of self-representation," and

"defendant's awareness of the disadvantages of self-

representation." Phua, 135 Hawaiʻi at 514, 353 P.3d at 1056

("The record must reflect that the defendant understands what he

4(. . .continued)
everything, that the services of the interpreter be used.
If you would rather communicate in times when you're able
to understand what's being said and then respond in
English, you're free to do that. Is that all right?

MR. LEUS: Yes, absolutely.

At the end of the colloquy, the circuit court further

instructed Leus,

THE COURT: Okay. And you've had Mr. Druker I think
help you once or twice. Do you feel like you're able to
understand what the Court was talking to you about?

MR. LEUS: Absolutely.

THE COURT: Have you felt like you could explain
yourself or speak for yourself?

MR. LEUS: Yes.

THE COURT: And where you needed help, I think at
least once, you looked to Mr. Druker, and he translated for
you and then explained to the Court your answer, yes?

MR. LEUS: Yes.

THE COURT: So if we go ahead and proceed with you
representing yourself, Mr. Druker will be here to help you.
It's very important you know that he is here to assist you.
Do you understand?

MR. LEUS: Yes.

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or she is doing and that the decision is made with eyes

open.")(cleaned up).

Leus was informed of the risks of self-representation

through the following colloquy,

THE COURT: And have you ever been charged with a
felony offense before? I don't think so, correct?

MR. LEUS: Never. Never.

THE COURT: All right. And so I need to make sure
that you're clear that because of the charge in Count 1
against you, you have a right to an attorney to assist you.
You know that, correct?

MR. LEUS: Yes.

. . . .

THE COURT: Have you ever had to go to court being
charged with any sort of offense ever in the United States?

MR. LEUS: Never I was, judge.

THE COURT: Okay. Very good.

Now, you have decided you want to represent yourself,
correct?

MR. LEUS: Yes.

THE COURT: And today, to help you, as he has for
some time, is Mr. Rodby, correct?

MR. LEUS: Yes.

THE COURT: And so he is here to not represent you
but simply to be a --

MR. LEUS: Consultant.

THE COURT: -- a consultant or really just a reference
for information for you. His job is not to essentially
give you advice about what you should do. That's your
choice. You understand that?

MR. LEUS: Yes.

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THE COURT: Okay. Now, I just want to make sure that
you understand that representing yourself is a very serious
decision. You understand?

MR. LEUS: Yes.

THE COURT: Okay. And so I'm going to talk to you
about some rights that you have just to make sure that our
record is clear, okay?

MR. LEUS: Yeah.

THE COURT: All right. You understand that today
you're about to start trial before a jury in this case?

MR. LEUS: Yes.

THE COURT: And that you're facing two charges, yes?

MR. LEUS: Yes.

THE COURT: One is Assault Against a Law Enforcement
Officer in the First Degree, which is a serious felony; you
understand?

MR. LEUS: Yes.

THE COURT: The other is a Harassment charge, which
is a petty misdemeanor; do you understand?

MR. LEUS: Yes.

THE COURT: All right. Both of these are crimes; do
you understand that?

MR. LEUS: Yes.

THE COURT: And you understand that the State is
going to be required to prove all of the requirements
necessary for each one of these charges; do you understand?

MR. LEUS: Yes.

THE COURT: And that each charge requires the State
to prove beyond a reasonable doubt all of the elements of
those offenses; do you understand?

MR. LEUS: Absolutely.

THE COURT: And elements are like ingredients in a
recipe that ends up being a crime; do you understand?

MR. LEUS: Yes.

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THE COURT: Okay. And that in this particular case,
the State has to prove in Count 1 that you intentionally or
knowingly caused bodily injury to Masakazu Kurita, who was
a police officer; do you understand?

MR. LEUS: Yes.

THE COURT: And that at that time, that that person
was a police officer that was on duty doing his job; do you
understand?

MR. LEUS: Yes.

THE COURT: And that the date that's charged where
they're saying you did something to assault this officer is
October 5, 2015; do you understand?

MR. LEUS: Yes.

THE COURT: Okay. As to the second count, on that
same day, the State would have to prove that you had the
intent or purpose to harass, annoy, or alarm a person by
the name of Jesse Takushi; do you understand?

MR. LEUS: Yes.

THE COURT: And that they would have to prove that
you either struck, hit, shoved, or kicked or touched that
person in an offensive manner, in other words, in a way
that they found offensive; do you understand?

MR. LEUS: Yes.

THE COURT: And that it requires proof of physical
contact; do you understand?

MR. LEUS: Yes.

THE COURT: Okay. And you understand the State has
to prove those things to the highest standards of our law,
which is proof beyond a reasonable doubt; do you understand
that?

MR. LEUS: Yes.

THE COURT: Okay. Do you have any questions about
what those elements or what those crimes are about?

MR. LEUS: No.

THE COURT: Very good. You understand that if the
State does not prove all of those elements or requirements
for each offense, then you cannot be found guilty of
anything, yes?

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MR. LEUS: Yes.

THE COURT: And the State has to prove every single
one of those, right?

MR. LEUS: Yes, without doubt.

THE COURT: Okay. Very good. And that proof beyond
a reasonable doubt means that you are presumed innocent of
these charges; you know that, correct?

MR. LEUS: Absolutely.

THE COURT: And that remains with you unless the
State brings in proof, evidence, witnesses to prove those
elements; do you understand?

MR. LEUS: Yes.

THE COURT: And they have to satisfy the jury that
they've proven it to the highest level of our legal system,
proof beyond a reasonable doubt; do you understand that?

MR. LEUS: Yes.

THE COURT: Now, reasonable doubt is a doubt in a
person's mind about your guilt which arises from the
evidence presented or the lack of evidence; do you
understand that?

MR. LEUS: Yes.

THE COURT: And that it has to be a doubt that's
based upon reason and common sense; do you understand?

MR. LEUS: Yes.

THE COURT: And that means you cannot be found guilty
-- even if they think you're probably guilty, that's not
enough; do you understand?

MR. LEUS: Yes.

THE COURT: And that even if they have a strong
suspicion or think you did these crimes, that's not enough
to convict you; do you understand?

MR. LEUS: Yes.

THE COURT: Very good. Now, do you have any
questions about what the term "proof beyond a reasonable
doubt" means? No?

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MR. LEUS: I understand this.

THE COURT: Okay. Very good.

All right. You understand that if you are found
guilty of the first charge -- and I believe that is a -- is
that a Class B?

MR. SOUSIE: I believe it's a C, Your Honor.

THE COURT: -- C, that's punishable by up to five
years in prison and/or a $10,000 fine for the first count,
yes?

MR. LEUS: Yes.

THE COURT: And the second offense, Harassment, is
punishable by up to 30 days in jail and/or a -- I believe
it's a thousand-dollar fine. You understand, Mr. Leus?

MR. LEUS: Yes.

THE COURT: Now, if you are convicted, it does not
mean that those maximum penalties will be imposed; do you
understand?

MR. LEUS: Yes.

THE COURT: But each one of those carries with it the
possibility of court supervision; do you understand?

MR. LEUS: Yes.

THE COURT: And that could be for a period of as much
as four years for the first charge; do you understand?

MR. LEUS: Yes.

THE COURT: That you have to do certain things that
the Court requires you to do; do you understand?

MR. LEUS: Yes.

THE COURT: Very good.

Now, you understand that because of the consequences
that these offenses carry, that you have an absolute right
under our law, our constitutions, both the United States
and Hawaii, to have an attorney represent you; you
understand?

MR. LEUS: Yes.

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As our case law establishes, "the trial court is not

required to give the defendant a short course in criminal law

and procedure," but the defendant must be sufficiently informed

of the risks of self-representation in the context of the

offenses for which he was being charged. Phua, 135 Hawaiʻi

at 514-15, 353 P.3d at 1056-57 (cleaned up). The record

reflects that Leus, through the extensive colloquy set forth

above, was informed of "the nature of the charge, the elements

of the offense, the pleas and defenses available, the

punishments which may be imposed, and all other facts essential

to a broad understanding of the whole matter." Id. at 515,

353 P.3d at 1057 (citations and internal quotation marks

omitted). The information was not "mechanically provide[d],"

but meant to "engage the defendant to ensure that the waiver

[was] intelligently and voluntarily made." Id. at 514, 353 P.3d

at 1056.

Leus was also informed several times of the

disadvantages of self-representation, including his right to the

assistance of counsel,

THE COURT: What I am telling you is the reason why
I'm going through all this, Mr. Leus, what you're doing,
you have a right to represent yourself if that's what you
want.

MR. LEUS: Yes.

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THE COURT: But the Court does not recommend that,
and I told you several times I don't think it's a good
idea. Do you understand?

MR. LEUS: Absolutely.

THE COURT: But that's your choice.

MR. LEUS: Yes.

THE COURT: And if that's what you want to do, the
Court will allow you to represent yourself. Do you
understand?

MR. LEUS: Yes.

THE COURT: But make no mistake that Mr. Rodby, while
he's there to provide information, he is not your lawyer,
meaning that he is not here to represent you in this case.

MR. LEUS: Absolutely understand this.

THE COURT: Okay.

. . . .

Now, you understand that if you represent yourself,
I, as the judge, the Court cannot help you at all; do you
understand?

MR. LEUS: Yes.

THE COURT: Because my job is not to favor either
side. I am just like a referee or umpire. You understand
that?

MR. LEUS: Absolutely.

THE COURT: Very good.

And if you represent yourself, Mr. Leus, you
understand that you are going to be required to follow all
of the rules of court.

MR. LEUS: Yes.

THE COURT: And that would be for rules of procedure,
how to do certain things, as well as the substantive law
like, for example, the rules of evidence, things like that.
Do you understand?

MR. LEUS: Yes.

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THE COURT: Now, you can ask Mr. Rodby about those,
but it's going to be your responsibility to make sure you
follow those. Do you understand?

MR. LEUS: Yes.

THE COURT: All right. Very good.

And at trial, things sometimes can get a little bit
complicated, not always, but sometimes they can, and it can
be -- technically, there are some issues that can come up
that are not even easy for lawyers and the Court to deal
with. Do you understand?

MR. LEUS: Yes. Psychology.

THE COURT: Pardon me?

THE INTEPRETER: Psychology.

MR. LEUS: Psychology of people. I understand what
you talking about.

THE COURT: All right. Now, you do not have any
formal training in the law, correct?

MR. LEUS: No, but I'm, I have interest about law,
about --

THE COURT: No, and that's fine. I'm not saying just
because you don't have any legal training, that you're not
someone who can represent themselves; I'm not saying that.
It's just that you're an engineer by education, yes?

MR. LEUS: Yes.

THE COURT: So if I were to go out and try to do
something that involves --

MR. LEUS: To build house, for example.

THE COURT: Correct. I probably would not be doing a
very good job, so -- but for you, because you don't have
any legal training, it doesn't mean that you cannot learn
and that you haven't studied, but you are going to be on
the other side from Mr. Sousie who is legally trained and
experienced. Do you understand?

MR. LEUS: Yes.

THE COURT: Okay. And that even for the best of
people, this can be very, very difficult and challenging,
you understand, to represent yourself; do you understand?

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MR. LEUS: Absolutely.

THE COURT: All right. And if you decide that you
want to confirm you want to continue to represent yourself,
the Court will let you do that, but you cannot later on,
let's say, complain that you did not have a lawyer because
that is your choice to make, okay. Do you understand that,
Mr. Leus?

MR. LEUS: Absolutely.

THE COURT: And basically, as I have a couple
different times previously encouraged you to strongly
consider allowing a lawyer to represent you, all right.
It's your choice, like I said, but it's always better, I
think, to have someone who is properly trained and
experienced. Do you understand?

MR. LEUS: Yes.

THE COURT: Okay. But you still wish to represent
yourself, Mr. Leus?

MR. LEUS: Yes.

THE COURT: All right. Very good.

Now, instead of having the Court pay for a lawyer to
represent you, if you wanted to and you could afford it,
you could go out and hire your own lawyer, whoever he or
she is, to come in and represent you; do you understand?

MR. LEUS: Yeah.

THE COURT: Okay. And I presume but I just want to
be clear, you do not wish to do that, right?

MR. LEUS: I don't have money.

THE COURT: Okay. And like I said before, if you
don't have the money to pay for a lawyer, the Court would
pay for a lawyer like Mr. Rodby to represent you if that's
what you wish; do you understand?

MR. LEUS: Yes.

The Court: All right. Now, do you have any
questions about what I've talked to you about, Mr. Leus?

MR. LEUS: No.

THE COURT: And you're obviously a very intelligent
person, and you've thought a lot about this decision, I
imagine, right?

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MR. LEUS: Yes.

THE COURT: Are you comfortable with your decision to
represent yourself?

MR. LEUS: Yes.

THE COURT: Okay. Do you have any questions about
anything that I have talked to you about?

MR. LEUS: No.

THE COURT: And the decision that you've made to
represent yourself, whose choice is that?

MR. LEUS: This is my choice.

THE COURT: Your choice. Okay. All right.

Leus acknowledged, throughout the colloquy, that he

understood his right to be represented by an attorney, that it

was his choice to represent himself, and that he was comfortable

with his decision to represent himself.

We conclude that the circuit court properly assessed

Leus's background and comprehension, and informed Leus of the

risks and disadvantages of self-representation. The record

reflects that Leus's decision to proceed self-represented was

knowingly, voluntarily, and intelligently made.

B. Alleged Prior Inconsistent Statement

Leus contends that the circuit court erred "by

precluding Leus from entering [testifying witness] [John]

Hufana's (Hufana) prior inconsistent statement into evidence."

At trial, Leus requested that the circuit court admit into

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evidence Defendant's Exhibit 4U (Exhibit 4U), a recording,

during his direct examination of Hufana 5 and pursuant to Hawaii

Rules of Evidence (HRE) Rules 613 and 802.1, 6 for the purpose of

introducing Hufana's allegedly inconsistent statement. The

State objected to the admission of Exhibit 4U on grounds that a

proper foundation for admission of the exhibit had not been

established; the circuit court sustained the objection, and

denied the admission of the exhibit.

We review the circuit court's denial of Exhibit 4U for

abuse of discretion. "When a question arises regarding the

necessary foundation for the introduction of evidence, the

determination of whether proper foundation has been established

lies within the discretion of the trial court, and its

determination will not be overturned absent a showing of clear

5 Hufana was called as a witness by both the State and Leus.
Leus's attempt to introduce Exhibit 4U into evidence, as a prior inconsistent
statement, occurred during his direct examination of Hufana on December 7,
2017. Hufana had previously been called by the State to testify on
December 6, 2017.

6 HRE Rule 613(b) instructs, in pertinent part,

Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless, on direct or cross-
examination, (1) the circumstances of the statement have
been brought to the attention of the witness, and (2) the
witness has been asked whether the witness made the
statement.

HRE Rule 613. HRE Rule 802.1 recognizes an inconsistent statement as an
exception to the hearsay rule when, among other things, "the statement is
offered in compliance with rule 613(b)[.]" HRE Rule 802.1

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abuse." State v. Eid, 126 Hawaiʻi 430, 440, 272 P.3d 1197, 1207

(2012) (quoting State v. Assaye, 121 Hawaiʻi 204, 210, 216 P.3d

1227, 1233 (2009)).

Here, we conclude that the circuit court did not err.

At trial, Leus attempted to introduce Exhibit 4U as follows,

Q. (By Mr. Leus) John [Hufana], do you remember we
were talking about this case, and everything is recorded,
and we was talking about that. You was talking with me,
with Bogden. It was good night, absolutely calm, speech
good, bring good refrigerator, new one, beautiful.

THE COURT: All right. Mr. Leus --

MR. LEUS: Yeah, and --

THE COURT: No. Ask a question.

Q. (By Mr. Leus) Yeah, and question is in this
conversation when we were speaking about police brutality,
all this stuff, did you say that, Oleg, everything
recorded?

MR. SOUSIE: Objection. Leading.

THE COURT: All right. I'll overruled [sic] that.
Go ahead. Do you understand the question?

THE WITNESS: Yes, I understand the question.

MR. LEUS: I'm not finished.

THE COURT: No.

MR. LEUS: Ah. Okay.

THE COURT: Give the witness an opportunity.

Go ahead.

A. Being you guys started off the conversation with,
you know, you guys wanted me to be your witness and so did
the State, I wasn't sure where to go, but you guys wanted
me to say some things that wasn't true, so being that said,
I told you guys, Eh, the thing might be recorded, could
have been recorded, and I don't want to be in trouble for
that, so that's why I said it could have been recorded and

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I don't want to get caught, because you guys wanted me to
say things that never happened that night.

Q. (By Mr. Leus) Okay, John. What things that never
happened we were asking to say?

A. That you weren't -- that you weren't resisting,
that you were calm, you were doing what they were saying
what they said you should do. There was a lot of things
that you told me to say, you and your son. Everywhere at
my apartment building, every chance you guys get, you guys
bring that up. That day that we had that conversation, we
even got into an argument. I told you guys I didn't want
to talk to you, I didn't want to talk about this, and,
yeah, it turned out that I told you it might be recorded
and I don't want to talk about it.

Q. Okay. Understand we were talking. I'm not hear
what you talking. Then why I'm asking. People will think
this is against myself, but I will exactly asking, please,
I remind, what exactly you want -- what exactly I was
asking you to change, to change, what exactly? You can
speak absolutely freely. Don't care about --

A. I'm not --

Q. Exactly.

A. Not to mention you asked me not to talk about not
seeing things. Like, if I saw you guys by the car, what
happened at the car, you said, Did you really see this, did
you really see that, and I said, yeah, I saw this, and you
said, well, you know, that's not going to – you said stuff
that --

Q. No, exactly, exactly because --

A. This conversation is long ago, but out of the
conversation, all I was trying to do that night was get you
so that you're not taking me as a witness because
everything I saw you do goes against what you was trying to
tell me to say.

Q. Okay. What I say exactly, you cannot remember
what I was asking you to talk in your testimony. It's
okay, it's okay. It's whatever. We recorded this
conversation, and in this conversation, you talking that
for sure, policemen showed you video even from two cameras,
and Bogden asked, Are you sure, did you see this movie?
Yes, you answered, I see this movie.

MR. SOUSIE: Objection.

Q. What do you see on --

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THE COURT: Hold on a second.

Q. Is --

THE COURT: Hold on.

Q. Did you see any --

THE COURT: No. Wait a minute.

Sustained.

Please just ask a question.

Q. (By Mr. Leus) Did you see any police movie?

A. I did not see any videos.

MR. LEUS: Okay. I need consultation.

THE COURT: Please.

(Mr. Leus conferred with Mr. Rodby.)

MR. LEUS: Your Honor, because what is recorded here
absolutely different what John said --

THE COURT: No, no, no, don't make a statement. Do
you have a request to make?

MR. LEUS: I want -- I finish this conversation with
John.

THE COURT: Hold on, please. You have something
you'd like to request, is that right, regarding your
exhibits?

MR. LEUS: I want to request to listen this disk.

THE COURT: And the designation is Defendant's 4U; is
that correct?

MR. LEUS: Yes, this 4U.

THE COURT: Okay, I understand. You're making that
offer at this time.

MR. LEUS: I was doing this --

THE COURT: No, I don't want further discussion.
You're offering Defendant's 4U.

Mr. Sousie, your response?

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MR. SOUSIE: Your Honor, the State objects on
foundation.

THE COURT: The objection is sustained. The exhibit
is refused. 7

(Emphasis added.)

As the record reflects, Leus did not bring the

"circumstances of the statement" to the attention of Hufana, or

establish whether Hufana "made the statement," as required

pursuant to HRE Rule 613(b). State v. Kassebeer, 118 Hawaiʻi

493, 516, 193 P.3d 409, 432 (2008) ("In order to lay the

foundation to introduce a prior inconsistent statement, HRE

Rule 613(b) require[s] that [the introducer] bring the

circumstances of the statement to the [testifying witness's]

attention and ask [witness] whether [witness] made the

statement.") While Leus referenced a "recording" and "police

movie" during his questioning of Hufana, he did not establish

that Hufana made any statement recorded on Exhibit 4U, or that

Hufana made a statement to the police. The circuit court did

not abuse its discretion by sustaining the State's objection to

the admission of Exhibit 4U for lack of foundation.

7 Following a brief bench conference, Leus again attempted to have
Exhibit 4U entered into evidence, through the assistance of standby counsel
Rodby. Rodby addressed the circuit court as follows, "Mr. Leus has asked me
to say that the exhibit should be admitted into evidence as a prior
inconsistent statement." The State objected, and the circuit court sustained
the objection, noting that, "the Court did construe the prior offers under
613, and the Court will restate its prior ruling, which is to sustain the
State's objection, refuse the exhibit, 4U."
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C. Requested Continuance

Leus contends that the circuit court abused its

discretion in denying his request, made midway through the

trial, for a "continuance to secure his medical witnesses." We

review for abuse of discretion. Sapp v. Wong, 62 Haw. 34, 41,

609 P.2d 137, 142 (1980).

As Leus acknowledges, the circuit court considers two

factors with regard to a motion for continuance, "(1) whether

counsel exercised due diligence in seeking to obtain the

attendance of the witness; and (2) whether the witness provides

relevant and material testimony that benefits the defendant."

State v. Williander, 142 Hawaiʻi 155, 163-64, 415 P.3d 897, 905-

06 (2018). Applying these two factors, we conclude that the

circuit court did not abuse its discretion in denying the

continuance that Leus requested.

As to the first factor, Leus fails to establish that

he exercised due diligence in order to obtain the necessary

witnesses for trial. At the time Leus requested a mid-trial

continuance, his case had been pending for two years. Trial had

commenced, and the circuit court noted that,

This case was initiated soon after your arrest, which was
on October 5, 2015. There have been I believe one, two,
three, four prior attorneys of record. Mr. Rodby was
appointed as standby counsel only. You have been acting as
your own attorney since at least, at least April of this
year, and it is now December, which is approximately seven

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or eight months after you took over representation of
yourself in this case.

The circuit court, in denying the request, took note

of Leus's self-representation and non-legal background. The

circuit court, however, also explained that,

[W]hat I am doing is holding you essentially to the same
standards and requirements of anyone else that appears in
court, including attorneys and those individuals such as
yourself that choose to represent yourself. As I told you
as recently as Monday of this week, that trial proceedings
can be complicated, and it is entirely your responsibility
to be aware of all of the rules and all the legal
requirements, and that the Court is not here to assist you,
all right.

The record supports the circuit court's determination that Leus

did not exercise due diligence in subpoenaing his medical

witnesses.

With regard to the second factor, the circuit court

did not err in concluding that Leus failed to demonstrate that

the witnesses would have provided relevant and material

evidence. At trial, Leus informed the circuit court that he

needed a continuance to subpoena the medical witnesses "because

you said we need doctor to receive this papers[.]" The record

does not support that the medical witnesses Leus sought to

subpoena would have testified as custodians of Leus's medical

records, and/or that they would have provided testimony as to

any injuries that Leus sustained. Indeed, Leus did not

establish that the medical witnesses he sought to subpoena had

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examined him or that they had personal knowledge of his alleged

injuries. The circuit court did not err in determining that

Leus had not established that the medical witnesses' testimony

was relevant and material.

The circuit court did not err in denying Leus's

request to continue trial.

D. Questions Related to a Witness's Alleged Bias, Interest, or
Motive to Testify Falsely

Leus contends that "the trial court erred in

precluding Leus from confronting Hufana on a matter directly

related to Hufana's bias, interest, or motive to testify

falsely." Leus specifically contends that the circuit court

erred in "limiting" Leus's questions with regard to Leus's

attempt "to adduce evidence that Hufana was jealous of his

interaction with [Leus's neighbor] Jessica."

Pursuant to HRE Rule 609.1, "[t]he credibility of a

witness may be attacked by evidence of bias, interest, or

motive." "The trial court's determination that the proffered

evidence is probative of bias, interest or motive is reviewed

under the right/wrong standard." State v. Balisbisana, 83 Hawaiʻi

109, 114, 924 P.2d 1215, 1220 (1996) (citations omitted).

From what we are able to discern, Leus contends that

the circuit court erred in sustaining the State's objection to

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Leus's question to Hufana regarding Jessica's appearance.

Leus's question, the State's objection, and the circuit court's

ruling are reflected in the record as follows,

Q. (By Mr. Leus) How you can describe Jessica?

A. Jessica?

MR. SOUSIE: Objection.

THE COURT: Overruled.

A. Jessica, she's my neighbor. She's been my
neighbor long before you guys moved in. Four years, for
the four years that she's lived there, they've always,
police have always been called upon them because they drink
a lot and they get really loud. Sometimes I drink with
them because they're the neighbors and I like to make the
relationship because they watch the apartment sometimes
because they're always there.

Q. My question is like person, person, personality.

A. Her personality?

Q. Yeah, her personality.

A. She's very forgetful. She's a really bad
alcoholic. At that time, she was going through depression
because of the loss of her baby. You remember that one.
She's a really good girl. She graduated with -- in
philosophy --

Q. Psychology.

A. -- psychology, and, you know, she's nice to my
kids, so the relationship is good with her.

Q. What about her appearance?

MR. SOUSIE: Objection.

Q. Her appearance?

THE COURT: Hold on. Hold on.

Q. (By Mr. Leus) What about her appearance?

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THE COURT: Hold on, Mr. Leus. When there's an
objection, you need to stop, okay.

So I'll sustain the objection.

(Emphasis added.)

At that time, the circuit court called a brief recess

and held a bench conference. The State objected to Leus's line

of questioning on grounds of relevance, and the circuit court

gave Leus the opportunity to respond. The following discussion

took place outside the presence of the jury,

MR. LEUS: I have two responses. First response,
that I'm not very convenient because I start to continue
with him and Mr. Sousie asked about consultation with his
client. What will be right now, he understand what I'm
going, what I'm going, because what I was talking about
about jealousy on John, this only was the reason why he
call police on me, and right now he prepared, he prepared
to speak with him, pay attention what Oleg doing right now,
because I am asking so provocative questions that this
questions looks like, in his eyes, looks like against me,
and he is -- and right now he can speak exactly. After
break, after work, this Mr. Sousie, he'll speak absolutely
different.

THE COURT: Hold on a second, Mr. Leus. You are
entitled to ask your questions of this witness that relate
to what happened that night. There have been several
objections raised, many of which I have agreed with, and in
part because your questions, sometimes it's difficult to
know what exactly it is that you're ultimately asking, so
what I would suggest to you -- and it's up to you -- is if
you can try to make your questions very short and clear,
that will help everybody, all right.

MR. LEUS: I will try.

THE COURT: But I would also tell you that if you ask
questions that call for answers that go beyond what may
have happened that night or get into other --

MR. LEUS: Speculation.

THE COURT: Well, speculation is one thing, but what
I'm concerned about is the jurors are not asked to decide
this case based upon the characteristic of the people
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involved. It doesn't matter. They simply need to
understand what the information is about what happened or
didn't, and the law is pretty clear that character evidence
is extremely limited, so I just mention that to you. I'm
not telling you what to do, but you need to be aware that
you could ask questions that call for responses that could
result in testimony that may not be helpful for this jury
to know, okay.

(Emphasis added.)

The circuit court was not wrong in determining that

Leus's question regarding Jessica's physical appearance was not

relevant or probative of bias, interest, or motive. Leus was

not foreclosed the opportunity to ask other questions that could

potentially establish bias. 8 The record reflects that the

circuit court, by sustaining the State's objection to Leus's

question regarding Jessica's physical appearance, was not

improperly interfering with Leus's constitutional right to

examine his witness.

E. Allegation of Judicial Misconduct

Leus contends that the circuit court "prejudicially

deprived Leus of his right to a fair trial when it warned him,

8 Specifically, the circuit court did not, as Leus asserts, tell
him that "he was only 'entitled to ask questions of this witness that relate
to what happened that night.'" (Emphasis added.) But even assuming the
court erred in telling Leus he was entitled to ask questions of Hufana that
relate to what happened that night, any such error was harmless beyond a
reasonable doubt. Hufana testified that he did not see the incidents
supporting either charge against Leus. Thus, the convictions did not rest on
Hufana's testimony. Rather, the convictions were overwhelmingly supported by
the testimony of the three officers who witnessed the incidents and said they
saw Leus commit both offenses. See infra Section G.

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in the presence of the jury, against any further outbursts and

should have sua sponte declared a mistrial." In reviewing

allegations of judicial misconduct, "[t]he question is whether

the trial judge's conduct 'reveal[s] a deep and thorough-going

bias against and contempt for the appellants' legal

representation' that is 'fundamentally at odds with his [or her]

judicial responsibilities.'" State v. Fukusaku, 85 Hawaiʻi 462,

482, 946 P.2d 32, 52 (1997).

Here, the record reflects a series of events at trial

relating to Leus's attempt to introduce Exhibit 4U. The

following proceedings occurred outside the presence of the

jurors,

Mr. Leus, I have told you many times -- no -- I have
told you many times not to make statements to the jury.
You have on several occasions disregarded that. I have
simply viewed that as an inadvertent decision on your part
each and every one of those times because you are certainly
entitled to zealously represent yourself, but I am at the
point where I have good reason to believe that you are
intentionally doing this, Mr. Leus, in an attempt to
communicate your own personal views to the jury[.]

. . . .

When we were at the bench, I asked you at least two
times to please lower your voice, and you refused. When I
made a statement dealing with the exhibit, I believe, you
turned to the jury with your arms raised and made some sort
of statement as if you disagreed. You're entitled to have
your opinions. You are not entitled to do whatever you
wish in this courtroom. There are rules. There are
procedures. We have to follow them.

MR. LEUS: And he can steal this evidence? That the
rules, he can steal part of evidence?

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THE COURT: All right.

MR. LEUS: And you talking everything okay?

THE COURT: You, as your own lawyer, are responsible
for your own exhibits. Defendant's Exhibit [4]U was
offered and refused yesterday. I respect the fact you
disagree. That's fine. I asked Mr. Sousie on the record
whether or not he had your exhibit.

And again, for the record, Mr. Sousie, do you have
that exhibit?

MR. SOUSIE: No, Your Honor, the State does not.

THE COURT: All right.

MR. LEUS: He is liar, primitive liar, primitive,
very primitive liar. Here, I have witness. He was, he
was, and my son was, and to my son, I said, Oleg -- Bogden,
it's here, I giving here this to him, and I told him,
Everything okay, should we sign something? No. No, it's
okay. Same in my hands. Okay. And I told him here is
witness is here. Oh, it's okay, it's okay, everything
okay. Now he talking part of number 4, everything that in
your table, number 4, the documents you received, yeah, he
has, he has, but this, he don't have, this video of the
recording.

. . . .

THE COURT: And Mr. Leus, I'm going to caution you,
warn you, advise you, not to make further outbursts in
front of the jury. This does not help this process, all
right, and I'm explicitly telling you not to do that, and
if you do, Mr. Leus, you need to be very, very clear that
there are possible consequences to your choice to disregard
the Court's instruction. I do not want that to happen.

MR. LEUS: I have --

THE COURT: No, no, no.

And what we will do is we'll bring the jurors back
in, we'll bring in Mr. Hufana. If you have other questions
for him, you may ask those questions. If you have anything
else with regard to your exhibit, that is your
responsibility, all right.

. . . .

THE COURT: All right. Mr. Leus, what we will do is
we will attempt to proceed in an orderly and a respectful

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manner. If you have any further outbursts, I will take a
recess all right.

(Emphasis added.)

After the jury was brought back into the courtroom,

and court was reconvened, the circuit court stated,

Mr. Leus, further Direct Examination. I will just
simply remind you that you may ask questions. Please don't
make statements, and there will be no further outbursts by
you, all right.

Proceed, please.

And before we resume, ladies and gentlemen, to the
extent that there were certain statements or, as the Court
has characterized it, outbursts by Mr. Leus, you will
disregard those, okay. You'll not consider them in any way
when you deliberate this case, all right. Thank you.

Upon careful examination of the record, we conclude

that the circuit court's above statements to Leus, including his

reference to Leus's "outbursts" in the presence of the jury,

were intended to maintain order and decorum during the trial

proceedings. They did not reflect any "deep and thorough-going

bias against and contempt for" Leus, nor were they

"fundamentally at odds" with the circuit court's judicial

responsibilities. 9 As such, they did not constitute judicial

9 The circuit court also later instructed the jury as follows,

If I have said or done anything that has suggested to
you that I favor either side or if any of my statements or
facial expressions has seemed to indicate an opinion as to
which witnesses are or are not worthy of belief, what facts
are or are not proved, or what inferences should be drawn
from the evidence, I instruct you to disregard it. You
must also disregard any remark I may have made unless the
remark was an instruction to you.
(continued . . .)
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misconduct. The circuit court did not err by not sua sponte

granting a mistrial.

F. Motion to Strike Jury Pool

Leus contends that "the trial court abused its

discretion in denying Leus's motion to strike the jury pool

where it was unduly composed of persons related to or close

friends with law enforcement."

In order to establish a prima facie violation of the fair-
cross-section requirement, the defendant must show (1) that
the group alleged to be excluded is a "distinctive" group
in the community; (2) that the representation of this group
in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.

State v. Richie, 88 Hawaiʻi 19, 41, 960 P.2d 1227, 1249 (1998)

(citing Duren v. Missouri, 439 U.S. 357 (1979)).

On appeal, Leus specifically contends that the circuit

court erred in denying his request to strike the jury pool

because thirty of the seventy-two individuals in the jury pool

indicated that they were close friends or related to "law

enforcement personnel." Relying on Duren, Leus contends that

the jury pool disproportionately consisted of individuals with a

9(.
. .continued)
The jury is presumed to have followed the circuit court's instructions.
State v. Hauge, 103 Hawaiʻi 38, 59, 79 P.3d 131, 152 (2003) ("This court has
repeatedly adhered to the construct that the jury is presumed to have
followed the circuit court's instructions." (cleaned up)).
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connection to law enforcement, and for that reason did not

comprise a reasonably representative cross-section of the

community.

We conclude that the circuit court did not err in

denying Leus's request to strike the jury pool. From what we

are able to discern, it appears Leus is challenging the

"exclusion" of individuals who are not affiliated with the law

enforcement community. Leus has not, however, shown that this

"group" is a "'distinctive' group in the community," "that the

representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of

such persons in the community[,]" and "that this

underrepresentation is due to systematic exclusion of the group

in the jury-selection process." See Richie 88 Hawaiʻi at 41, 960

P.2d at 1249.

G. Sufficiency of Evidence

Leus contends that "[his] convictions must be reversed

where the testimony of the State's witnesses failed to establish

substantial evidence to support his convictions." In reviewing

the sufficiency of evidence, "[t]he test on appeal is not

whether guilt is established beyond a reasonable doubt, but

whether there was substantial evidence to support the conclusion

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of the trier of fact." Richie, 88 Hawaiʻi at 33, 960 P.2d at

1241. "Substantial evidence as to every material element of the

offense charged is credible evidence which is of sufficient

quality and probative value to enable a person of reasonable

caution to support a conclusion." State v. Timoteo, 87 Hawaiʻi

108, 113, 952 P.2d 865, 870 (1997). We conclude that there was

sufficient evidence to support Leus's conviction for both

Assault Against a Law Enforcement Officer in the Second Degree

and Harassment.

With regard to Assault Against a Law Enforcement

Officer in the Second Degree, the State must prove that a person

"recklessly cause[d] bodily injury 10 to a law enforcement officer

who is engaged in the performance of duty." HRS § 707-712.6

(2014). During the State's case-in-chief, Officer Masakazu

Kurita (Kurita) testified that, while engaged in his official

duties as a Honolulu Police Department (HPD) officer on the

evening of October 5, 2015, Leus kicked his "right cheek area."

Kurita testified that the kick occurred while Leus was in the

police vehicle, after Kurita opened the door of the car. Leus

made eye contact with Kurita, stared at his face, "and out of

nowhere, he [Leus] kicked me with his left foot." Kurita

10 "Bodily injury" is defined in HRS § 707-700 (2014) as "physical
pain, illness, or any impairment of physical condition."
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testified that "he hit me straight, and I felt my neck snap back

and I felt pain to the left side of my neck and also my right

cheek area." Kurita rated the pain as an "8 or a 9" on a scale

of one to ten. Two other police officers, Officers Jesse

Takushi (Takushi) and Robert Salanoa (Salanoa), who had

witnessed the incident, testified that they saw Leus kick Kurita

in the face.

With regard to harassment, "[a] person commits the

offense of harassment if, with intent to harass, annoy, or alarm

any other person, that person: (a) Strikes, shoves, kicks, or

otherwise touches another person in an offensive manner or

subjects the other person to offensive physical contact[.]"

HRS § 711-1106 (2014). Takushi testified at trial that Leus

grabbed his right shoulder. Takushi further testified that,

after he warned Leus not to touch him, Leus grabbed the back of

his neck. Takushi testified that he did not give Leus

permission to touch him behind his neck, that he was offended by

Leus's touch, and that Leus's touch caused him alarm. Kurita

and Salanoa corroborated Takushi's account; they testified

witnessing Leus grab Takushi after Takushi warned Leus not to

touch him.

The record contains sufficient evidence to support

Leus's conviction.
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III. Conclusion

For the foregoing reasons, we affirm the Judgment of

Conviction and Probation Sentence entered by the circuit court

on February 6, 2018.

DATED: Honolulu, Hawai‘i, November 8, 2023.

On the briefs:
/s/ Keith K. Hiraoka
William K. Li, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Chad M. Kumagai, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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