State v. Kanae

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JUN-2026
07:56 AM
Dkt. 120 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---oOo---

STATE OF HAWAI#I, Plaintiff-Appellee, v.
KADEN K. KANAE, Defendant-Appellant

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

June 19, 2026

LEONARD, PRESIDING JUDGE, HIRAOKA AND MCCULLEN, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

This criminal appeal concerns a trial court's

determination that there was manifest necessity to declare a

hung-jury mistrial, and its denial of the defendant's motion to

dismiss the indictment based on double jeopardy and State v.

Moriwake, 65 Haw. 47, 647 P.2d 705 (1982).

Kaden K. Kanae was tried for murder in the second

degree and related offenses in connection with the September 29,

2018 early-morning shooting of Thomas McCandless, Jr. at
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Monuments, a landmark in Hale#iwa. A jury was empaneled on

February 16, 2024. Evidence was presented over seven days. The

jury began deliberating at 12:28 p.m. on March 4, 2024.

By the end of the next day, the jury had sent four

communications. The fourth stated they were deadlocked. The

trial court responded: "Will additional time to deliberate

assist you in reaching a unanimous verdict?"

The jury answered: "No, more time will not aid the

process."

After conferring with the deputy prosecuting attorney

and defense counsel, with Kanae present, the court declared a

mistrial based on manifest necessity.

On June 29, 2024, Kanae moved to dismiss the indictment

based on double jeopardy. The trial court entered findings of

fact, conclusions of law, and an order denying the motion.1

Kanae appeals.

We have jurisdiction under the collateral order

exception to the final-judgment rule. State v. Minn, 79 Hawai#i

461, 464, 903 P.2d 1282, 1285 (1995). We hold: (1) the trial

court acted within its broad discretion when it decided that
manifest necessity justified a discharge of the jury and no less

severe options were available under the circumstances of this

case; and (2) the trial court acted within its discretion when it

denied Kanae's motion to dismiss the indictment. We affirm the

order denying Kanae's motion to dismiss.

1
The Honorable Shanlyn A.S. Park presided.

2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

I. POINTS OF ERROR

Kanae states fifteen points of error and makes three

arguments: (1) there was no "manifest necessity" to declare a

hung-jury mistrial; (2) he did not consent to a mistrial

declaration; and (3) the trial court abused its discretion by

failing to dismiss the indictment under Moriwake. He challenges

several of the trial court's findings of fact and conclusions of

law, some of which are actually mixed findings and conclusions.

II. STANDARDS OF REVIEW

Trial judges have "broad discretion" to decide "whether

or not 'manifest necessity' justifies a discharge of the jury."

Moriwake, 65 Haw. at 52, 647 P.2d at 710. This is because not

discharging a jury that is unable to reach a unanimous verdict

creates "a significant risk that a verdict may result from

pressures inherent in the situation rather than the considered

judgment of all the jurors." Id. at 52–53, 647 P.2d at 710. In

other words, a compromise verdict. See State v. Fajardo, 67 Haw.

593, 699 P.2d 20 (1985) (defendant charged with murder was

convicted of included offense of manslaughter shortly after
deadlocked jury was given an Allen instruction).

A trial court's application of Moriwake to a motion to

dismiss an indictment is also reviewed for abuse of discretion.

State v. Deedy, 141 Hawai#i 208, 214, 407 P.3d 164, 170 (2017).

Findings of fact are reviewed under the clearly

erroneous standard. Cowan v. Exclusive Resorts PBL1, LLC, 156

Hawai#i 268, 272, 574 P.3d 288, 292 (2025). Conclusions of law

3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

are reviewed de novo under the right/wrong standard. Id. A

determination presenting mixed questions of fact and law is

reviewed under the clearly erroneous standard because it

implicates the facts and circumstances of the case. Id.

III. DISCUSSION

A. The trial court acted within its
discretion when it declared a hung-jury
mistrial.

"A mistrial from a hung jury is a safeguard built into

the American system of jurisprudence." Fajardo, 67 Haw. at 600,

699 P.2d at 24. "A conscientious minority [of jurors] is the

backbone of our American way of life. No individual, group or

institution, however altruistic its intentions, can set aside the

sincere convictions of a minority to conform to that of the

majority for the expedience of rendering a unanimous decision."

Id. at 601, 699 P.2d at 25. Thus, a mistrial is properly

declared where there is manifest necessity. State v. Wilmer, 97

Hawai#i 238, 242–43, 35 P.3d 755, 759–60 (2001). "Manifest

necessity" exists when "it becomes no longer possible to conduct

the trial or to reach a fair result based upon the evidence."
Id. at 244, 35 P.3d at 761.

Here, the first three jury communications came at

9:45 a.m. on the second day of deliberations. The first asked:

Can we have a copy of the ballistics report.
By: Curtis Kubo
Does the bullet found at marker #5 match the revolver?

The court responded at 10:18 a.m.:

4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

You have received all of the evidence you may consider to
decide the case. The court will not provide a copy of
Curtis Kubo's report.

The second communication asked:

Can we have Shayden McCandless' testimony?

The third asked:

Can we have a replay of Dr. Happy's testimony?
Did Dr. Happy state that the angle that McCandless was shot,
was from a reclined, laying down, position?

The court responded to the second and third

communications, again at 10:18 a.m.:

Please refer to your individual and collective memory as to
Shayden McCandless and Dr. Happy's testimony. The
transcripts of their testimony are not available and the
testimony cannot be played back.

Kanae does not contest the propriety of the court's

responses to the first three communications.

The fourth communication came at 3:55 p.m.:

What happens if the vote cannot be unanimous? hung jury

The court responded at 4:08 p.m.:

Will additional time to deliberate assist you in reaching a
unanimous verdict?

The jury responded:

No, more time will not aid the process.

The court conferred with counsel, with Kanae present:

Based upon [the jury's last response], the court's
inclination is to declare a mistrial at this time as this

5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

jury is unable to reach a unanimous verdict despite
one-and-a-half days of deliberation.
Mr. Bell, the State's position?
MR. BELL: Well, I'll just ask the court to
explicit[ly] say manifest necessity exists for the
pronouncement of a mistrial.
THE COURT: Yes.

Mr. Merrill?
MR. MERRILL: Mr. Kanae agrees with the court's
position.

THE COURT: All right.
All right. Based upon that, the court does find that
the standard of manifest necessity has been met as this jury
has deliberated for one-and-a-half days and has sent four
communications. Based upon that, the court will declare a
mistrial at this time.

The jury was brought into the courtroom. The

foreperson confirmed they could not reach a unanimous decision

even if given more time. The court thanked the jury and excused

them.

There was conflicting evidence about who shot Thomas,

and what weapon had been used. The jury communications,

considered in light of the evidence presented, could explain why

the jury was deadlocked.

The Perpetrator

Thomas's son, Shayden — who was thirteen when his

father was shot and nineteen when he testified at trial — was the

only witness who saw Thomas being shot. He wasn't able to

identify Kanae in a field show-up, but he identified Kanae at

trial. He testified he was in the back seat of his family's van

when his father stopped it at Monuments. Kanae was there.

Thomas got out and confronted Kanae. Thomas shoved Kanae in the

6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

chest. Kanae "threw a left hook to my dad's right jaw." Two

other people he didn't know also started to punch Thomas. One of

them punched the back of Thomas's head, which made him stumble to

the ground. He ended up on his back.

Shayden got out of the van. He saw tattoo marks along

Kanae's neck and "some markings right along the eye bag" on the

right side of Kanae's face. His father was still on the ground.

He saw Kanae pull a black gun out of his waistband. Kanae

"extended his arm and then angled it down towards my father."

"Then he proceeded to pull the trigger." Shayden heard the

gunshot. "Since I didn't see any shells fly out, I assumed that

it was a revolver." Kanae and the other two men got into a

silver Acura and drove toward Hale#iwa town. Shayden called 911,

and then his mom.

The first police officer to arrive at the scene found

Thomas lying on his back.

Kanae didn't testify, but offered a recorded interview

between two Honolulu Police Department (HPD) investigators and

Alexander Kinney. A video of the hour-and-forty-minute interview

was admitted without objection and played for the jury. Kinney

has several tattoos on his face, including his son's name,

Julian, above his right eyebrow, the number 13 under his right

eye, and the number 85 under his left eye.

Kinney described being at Monuments with Kanae. A van

pulled up fast. A guy jumped out and approached Kanae. They

started fighting. Kinney jumped in. The guy got beat up and was

on the ground. "[H]e got up on all fours." Then he got up fast

7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and grabbed Kinney. Kinney had a black revolver with a black

rubber grip. He took the gun from his belt. He pulled away from

the guy and the gun fired. The guy was "at the same level" as

Kinney. Kinney fired once, and the guy "falls down," "just drops

slowly." Kanae was standing in the middle of the road, "not

close." Kinney threw the gun away "somewhere far." Kanae ran to

Kinney's silver Acura and Kinney drove toward Hale#iwa. No one

else was in the car.

Christopher Happy, M.D. performed Thomas's autopsy.

Thomas had a single gunshot wound in his mid-chest. The size of

the entry wound was consistent with a .38 caliber bullet shot at

close range, "which is usually up to 6 to 10 inches." The exit

wound was on the back of the upper right shoulder. The jury was

shown photographs of Thomas's body with rods showing the bullet's

trajectory. It went from front to back, with an eight-inch

upward climb. Dr. Happy opined that was consistent with Thomas

lying on his back when he was shot; if Thomas and the person who

shot him were both standing facing each other, the wound track

would be level unless the shooter was holding the gun low and at

an angle that "is quite acute."

Dr. Happy also testified he found abrasions on Thomas's

knee and left forearm that were consistent with someone scraping

their knee and elbow while trying to stand up from an asphalt

road. He also found sand on the front and back of Thomas's

shirt, consistent with Thomas being on his belly and on his back

at some point in time.

8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Weapon

Shayden testified the gun he saw was black. Kinney

said the gun he used was a black revolver with a black rubber

grip, and he threw it "somewhere far."

Justin Raymond was the shop foreman at 4 Wheel Parts.

Shane Naho#oikaika-Ramirez and someone named Kaden also worked at

4 Wheel Parts. Raymond's description of Kaden — "tall, skinny,
had some tats on him, short hair" — matched Kanae's appearance.

In the mid-morning on September 29, 2018 (Thomas was shot in the

early morning that day), Shane gave Raymond a gun. Raymond

called HPD officer Desi Miner, whom he had known for over ten

years, that afternoon. Asked why he called Officer Miner, he

replied: "Because we were going to turn it in."

The jury heard a recording of a February 27, 2020 phone

call between Kanae and a woman, made while Kanae was in custody.

A male voice is heard saying: "Tell her to text Keoni to talk to

Shane to testifying against -- to -- to not testify against me.

Okay. Thank you."

Officer Miner testified that Raymond is his long-time

friend. Raymond called him at about 4:20 p.m. on September 29,

2018. He met Raymond later that evening. Raymond gave him a

sock with a gun and ammunition inside. The gun was a silver

revolver with a brown wooden handle. Officer Miner turned the

items over to the lead homicide detective on Thomas's case.

Curtis Kubo was a criminalist with HPD. He examined

the items in the sock Raymond gave to Officer Miner. The gun was

9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

a Taurus .38 caliber revolver with a silver finish and checkered

wooden grip. He also examined State's Exhibit 191, a spent

bullet that had been found behind the driver's side rear tire of

Thomas's van and marked with evidence marker #5. Kubo determined

the bullet had been fired from the Taurus revolver.

Manifest Necessity

A trial court's decision to declare a mistrial when it

considers the jury deadlocked is "accorded great deference by a

reviewing court." Arizona v. Washington, 434 U.S. 497, 510, 98

S. Ct. 824, 832, 54 L. Ed. 2d 717 (1978). "[T]he rationale for

this deference in the 'hung' jury situation is that the trial

court is in the best position to assess all the factors which

must be considered in making a necessarily discretionary

determination whether the jury will be able to reach a just

verdict if it continues to deliberate." Id. at 510 n.28, 98

S. Ct. at 832 n.28, 54 L. Ed. 2d 717 n.28.

Here, the trial court saw "firsthand and independently

appraised the evidence and the credibility of the witnesses; and

. . . closely observed the jury and the manner in which the jury

deliberated." Deedy, 141 Hawai#i at 231 n.20, 407 P.3d at 187

n.20. About the jury communications, the court stated:

Here, it was evident that the jury wanted to
reevaluate the testimony of Shayden McCandless and possibly
compare it to the ballistic report as well as Dr. Happy's
testimony. From the Court's recollection of the testimony,
the testimony of Shayden McCandless appears to be consistent
with the testimony of Dr. Happy, rather than with Alexander
Kinney. And if the jury were to believe this testimony,
then the (indiscernible) could be convicted as charged.

10
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Under these circumstances, it was appropriate for the

trial court to ask whether additional time to deliberate would

assist the jury in reaching a unanimous verdict. See State v.

Matavale, 115 Hawai#i 149, 156, 171-72, 166 P.3d 322, 329, 344-45

(2007) (Acoba, J., concurring) (endorsing "Would more time assist

you in reaching a unanimous verdict?" as an appropriate response

to the jury communication, "We are in a deadlock decision. What

next?").

Kanae argues that upon receiving the jury's negative

response, the trial court should have considered "less severe

options" before declaring a mistrial, citing Minn and State v.

Quitog, 85 Hawai#i 128, 938 P.2d 559 (1997).

In Minn, the deadlocked jury communicated that "further

deliberations would not be of assistance without a transcript of

Wheeler's testimony." 79 Hawai#i at 463, 903 P.2d at 1284. The

option discussed in Minn was granting the jury's request for the

transcript. Here, Kanae did not object to the trial court's

responses declining the jury's requests for Kubo's ballistics

report and Shayden's and Dr. Happy's testimony.

The other option discussed in Minn was reinstructing

the jury, which had apparently not been given a copy of the jury

instructions. Id. at 466-67, 903 P.2d at 1287-88. Here, the

jury had its own copy of the jury instructions. Kanae did not

ask the court to repeat any of the instructions to the jury.

In Quitog, the defendant was charged with attempted

murder in the second degree. The jury was instructed on the

11
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

included offenses of attempted manslaughter, three degrees of

assault, and reckless endangering. On the first day of

deliberations the jury asked:

How does the law interpret the explanation of Assault in the
First Degree regarding bodily injury? Does the 'cause' of
bodily injury apply to the intent of the assailant or to the
outcome of the injury?

85 Hawai#i at 133–34, 938 P.2d at 564–65 (italics omitted).

The trial court responded, "Please refer to the jury

instructions." Id. at 134, 938 P.2d at 565.

On the third day of deliberations, the jury asked for

"further explanation, definition and/or example regarding

reckless in order to distinguish between Assault 1 and Assault 2.

The jury is hung without further information or understanding."

Id. (italics omitted).

The court replied, "No further definition of Reckless

can be provided. If the Court gives the jury additional time to

deliberate, can the jury reach a unanimous verdict?" Id.
(footnote omitted).

The jury responded, "No. . . . The jury is hung." Id.

The court declared a mistrial, finding there was

manifest necessity. Id. at 135, 938 P.2d at 566.

The court denied Quitog's motion to dismiss the

indictment, and allowed an interlocutory appeal. On the issue of

manifest necessity, the supreme court stated:

[A] trial court's declaration of a mistrial is not supported
by manifest necessity if less severe options were available
that would have protected both the defendant's rights and
the public's interest.

12
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

. . . For example, the trial court could have responded more
substantively to the jury's [first] communication . . . by
clarifying the fact that, in accordance with its
instructions, . . . the states of mind requisite to the
commission of assault in the first degree applied both to
the defendant's conduct and to its result, i.e., "serious
bodily injury." Additionally, and inasmuch as the jury had
effectively exhibited its inability to reach a unanimous
guilty verdict . . . the trial court could have instructed
the jury to continue its deliberations regarding included
offenses. On the record before us, however, we cannot say
that the trial court's declaration of a mistrial based on
manifest necessity constituted an abuse of discretion, and
we therefore hold that it did not.

Id. at 143, 938 P.2d at 574 (cleaned up).

Here, Kanae did not ask the trial court to consider any

other option when it informed him of its inclination to declare a

mistrial. Nevertheless, the court did consider another option.

It concluded:

7. The Hawai#i Supreme Court has expressly disapproved
the giving of an Allen charge in criminal cases.
State v. Fajardo, 67 Haw. 593, 600-01, 699 P.2d 20,
24-25 (1985).

8. Here, given the posture of the case and the nature of
the jury's communications, the court only had two
options on March 5, 2024: (1) force the jury to
continue its deliberations notwithstanding the fact
that it unequivocally said that additional time would
not help or (2) declare a mistrial. There were no
other less severe options available. See Minn, 79
Hawai#i at 465, 903 P.2d at 1286 ("Even though a 'hung
jury' constitutes a 'classic example' of manifest
necessity, a trial court must first consider less
severe options available and balance the accused's
rights against the public interest").

9. Pursuing option (1) would be tantamount to the court
giving an Allen charge, which, under Fajardo, is
forbidden. Thus, declaring a mistrial (option 2) was
the only course of action available to the court.

The term "Allen charge" comes from Allen v. United

States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

There, the Supreme Court approved instructing a deadlocked jury

that, if much the larger number were for conviction, a
dissenting juror should consider whether his doubt was a

13
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

reasonable one which made no impression upon the minds of so
many men, equally honest, equally intelligent with himself.
If, upon the other hand, the majority was for acquittal, the
minority ought to ask themselves whether they might not
reasonably doubt the correctness of a judgment which was not
concurred in by the majority.

Fajardo, 67 Haw. at 596–97, 699 P.2d at 22 (quoting Allen, 164

U.S. at 501).

In Fajardo, a deadlocked jury was instructed that if it

couldn't "reach a verdict, this case must be tried again." 67

Haw. at 594, 699 P.2d at 21 (italics omitted). Each juror in the

minority was instructed to "reconsider his views in the light of

the opinion of" the majority, and jurors in the majority were

instructed to "give equal consideration to the views of the

minority." Id. at 595, 699 P.2d at 21 (italics omitted). One

hour later, the jury reached what appeared to be a compromise

verdict of guilty on an included offense. On appeal, the supreme

court held it was error to give the Allen-like instruction. It

hypothesized: "Had the trial court simply repeated an instruction

given earlier to the jury on how to go about its deliberations,[2]

2
The instruction read:
A verdict must represent the considered judgment of each
juror, and in order to return a verdict, it is necessary
that each juror agree thereto. In other words your verdict
must be unanimous.

Each of you must decide the case for yourself, but it is
yourduty [sic] to consult with one another and to deliberate
with a view to reaching an agreement, if you can do so
without violence to individual judgment. In the course of
your deliberations, do not hesitate to reexamine your own
views and change your opinion if convinced it is erroneous.
But do not surrender your h onest [sic] conviction as to the
weight or effect of evidence for the mere purpose of
returning a verdict.

Fajardo, 67 Haw. at 601 n.2, 699 P.2d at 25 n.2.

14
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

we feel that no prejudicial effect would have befallen

Appellant." Id. at 601, 699 P.2d at 25.

Later, in Matavale, a jury deliberated for five hours

over two days before communicating: "We are in a deadlock

decision. What next?" 115 Hawai#i at 156, 166 P.3d at 329. The

trial court instructed the jury: "Continue your deliberations.

See page 16 of the instructions." Id. The instruction on

page 16 was materially identical to the one endorsed in the

Fajardo dictum. Id. Two hours later, the jury found the

defendant guilty of Abuse of Family or Household Members. The

defendant appealed. We affirmed based on Fajardo. State v.

Matavale, No. 27476, 2006 WL 2361921 (Haw. App. Aug. 15, 2006)

(SDO). The supreme court granted certiorari. A plurality

reversed the conviction, holding the evidence was insufficient to

disprove the defense of parental discipline. 115 Hawai#i at

168–69, 166 P.3d at 341–42. It held the Allen issue was moot.

One justice concurred in the result and expressed the

view that the trial court's instruction was incorrect, endorsing

the State's argument that instructing the jury to continue

deliberating after it reported being deadlocked was just like the

Allen "'dynamite instruction' said to blast a verdict out of a

jury" rejected by Fajardo. Id. at 171-72, 166 P.3d at 344-45

(Acoba, J., concurring).

Two justices dissented, criticizing the plurality for

usurping the jury's fact-finding function. Id. at 172, 166 P.3d

at 345 (Nakayama, J., dissenting). The dissent also noted the

15
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

instruction given was "virtually identical to the instruction

recommended in Fajardo" and was not an improper Allen-like

instruction. Id. at 180, 166 P.3d at 353.

Here, Kanae did not ask that the jury be instructed to

continue deliberating or to be told: "You are excused for today.

Return tomorrow at 9:00 a.m." as it was in State v. Gonsalves,

108 Hawai#i 289, 291, 119 P.3d 597, 599 (2005), overruled on

other grounds by, State v. Auld, 136 Hawai#i 244, 361 P.3d 471

(2015).

"Manifest necessity" exists when "it becomes no longer

possible to . . . reach a fair result based upon the evidence."

Wilmer, 97 Hawai#i at 244, 35 P.3d at 761. On the record in this

case, we hold that upon receiving the jury's negative response

when asked if additional time to deliberate would assist them to

reach a unanimous verdict, the trial court acted within its broad

discretion when it decided that manifest necessity justified a

discharge of the jury and no less severe options were available.

"[A] mistrial ordered sua sponte because of a true inability of

the jury to agree upon a verdict represents the 'classic example'

of manifest necessity." Moriwake, 65 Haw. at 52, 647 P.2d at

710.

B. We need not decide whether Kanae
consented to the trial court's
declaration of a mistrial.

Kanae challenges conclusion of law (COL) no. 11:

11. Defendant impliedly consented to the court declaration
of a mistrial. On March 5, 2024, defense counsel
represented Defendant and his double jeopardy
interests. The court stated its intention to declare

16
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

a mistrial. Defense counsel did not object; instead,
he agreed with the court. Defendant "did not offer an
alternative course to declaration of a mistrial.
Instead, when asked for his position, [Defendant]
expressly agreed with [the court's] plan." Deguair,
136 Hawai#i at 93, 358 P.3d at 65. Thus, the only
plausible interpretation of defense counsel's
position — i.e., that he agreed with the court — is
that Defendant impliedly consented to the mistrial.

Kanae's motion to dismiss argued — through new defense

counsel — that "all [former] defense counsel said was he agreed

that IF the Court was going to declare a 'hung jury mistrial,'

the Court would have to hold that such a declaration was based on

'manifest necessity' basically because Defendant was not moving

for a mistrial based on a hung jury." Former defense counsel

(Merrill) did not submit a declaration, affidavit, or other

statement attesting to his intent when he said "Mr. Kanae agrees

with the court's position."

We need not decide whether Kanae impliedly consented to

a mistrial because we hold that the trial court acted within its

discretion when it decided that manifest necessity existed to

declare a mistrial. See Wilmer, 97 Hawai#i at 242–43, 35 P.3d at

759–60 ("A mistrial is properly declared and retrial is not

barred by the defendant's right against double jeopardy where the

defendant consented to the mistrial or there was manifest

necessity for the mistrial." (emphasis added)).

C. The trial court acted within its
discretion when it denied Kanae's motion
to dismiss the indictment.

Kanae contends that even if manifest necessity for the

mistrial existed, the trial court should have dismissed his

indictment based on Moriwake.

17
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

In Moriwake, the defendant was tried twice for

manslaughter, on essentially the same evidence, with both cases

ending in hung-jury mistrials. After the second mistrial,

Moriwake moved to dismiss the indictment. The trial court

granted the motion. The State appealed. The appeal presented

two issues: (1) was further prosecution barred by double

jeopardy; and (2) did the trial court have discretion to dismiss

the indictment and, if so, was it properly exercised? 65 Haw. at

50, 647 P.2d at 709.

On the first issue, the supreme court thought "it clear

from the record that the reasons for which mistrials were

declared in both prosecutions constituted 'classic examples' of

'manifest necessity[.]'" Id. at 54, 647 P.2d at 711. The court

thus held that the constitutional proscription against double

jeopardy "did not mandate dismissal of Moriwake's indictment."

Id.; see also State v. Gouveia, 139 Hawai#i 70, 81, 384 P.3d 846,

857 (2016) ("In light of our ruling that the circuit court was

within its discretion in concluding that manifest necessity

existed, retrial . . . is not barred by double jeopardy."); State

v. Deguair, 136 Hawai#i 71, 91, 358 P.3d 43, 63 (2015); Wilmer,

97 Hawai#i at 242–43, 35 P.3d at 759–60; cf. State v. Mayo, 62

Haw. 108, 111, 612 P.2d 107, 110 (1980) ("Where a mistrial is

declared . . . and there is an absence of manifest necessity for

the mistrial, a retrial will be barred by double jeopardy.");

State v. Lam, 75 Haw. 195, 201, 857 P.2d 585, 589 (1993),

overruled on other grounds by, Wilmer.

18
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On the second issue, the supreme court held that "trial

courts have the power to dismiss sua sponte an indictment with

prejudice and over the objection of the prosecuting attorney."

Moriwake, 65 Haw. at 55, 647 P.2d at 711. It listed six factors

for trial courts to consider when "balancing the interest of the

state against fundamental fairness to a defendant with the added

ingredient of the orderly functioning of the court system." Id.

at 56, 647 P.2d at 712-13. It ultimately held:

In this case, two full, nearly identical trials on a
serious charge were held, following which two separate
juries were unable to reach a verdict despite sound judicial
efforts to encourage a "considered judgment." There was no
indication that a third trial would proceed in a manner any
different than did the previous two. Considering this and
other evidence in the record, we do not perceive the trial
court to have abused its discretion in dismissing the
indictment of Moriwake.

Id. at 57, 647 P.2d at 713.

Thus, Moriwake stands for two distinct propositions:

(A) double jeopardy does not prohibit a retrial when a hung-jury

mistrial is declared based on manifest necessity; and (B) even

though a dismissal is not required under double jeopardy, a trial
court has discretion to dismiss an indictment, over the State's

objection, after considering (1) the severity of the offense

charged; (2) the number of prior mistrials and the circumstances

of the jury deliberation therein, so far as is known; (3) the

character of prior trials in terms of length, complexity and

similarity of evidence presented; (4) the likelihood of any

substantial difference in a subsequent trial, if allowed; (5) the

trial court's own evaluation of relative case strength; and

19
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(6) the professional conduct and diligence of respective counsel,

particularly that of the prosecuting attorney. Id. at 56, 647

P.2d at 712–13.

And:

Nothing in Moriwake indicates that all factors must be
given equal weight or that certain factors must be given
more weight than others. In reviewing the propriety of a
trial court's exercise of its discretion to dismiss an
indictment, this court accords deference to the conclusion
of the trial court. We will not vacate a trial court's
Moriwake ruling unless the party challenging the ruling can
make a strong showing that the court abused its discretion
by clearly exceeding the bounds of reason or disregarding
rules or principles of law or practice.

Deedy, 141 Hawai#i at 224, 407 P.3d at 180 (cleaned up).

Here, the trial court concluded that each of the six

Moriwake factors "weighs in favor of retrial." Kanae argues only

about factors two and four.

Factor 2

Kanae challenges COL no. 15:

15. Factor 2 (the number of prior mistrials and the
circumstances of jury deliberation therein, so far is
known): There has been only one prior mistrial. The
first jury deliberated for one-and-a-half days. This
factor weighs in favor of retrial.

COL no. 15 was a mixed finding of fact and conclusion

of law.

Kanae argues, "if it is really believable that the jury

could legitimately be hung after only a day and a half of

deliberations, it is very likely that the State has no case, and

not very likely that another trial will produce a different

20
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

result." One could ask, "if the State really had no case, why

didn't the jury unanimously acquit?"

Kanae's argument assumes the evidence presented in a

retrial will be the same. But, as discussed below in connection

with Factor 4, the assumption may be flawed.

The trial court's mixed finding and conclusion that

Factor 2 weighed against dismissal was not clearly erroneous

(there had only been one mistrial), applied the correct law

(Moriwake), and was within its discretion under the circumstances

of this case. See State v. Hinton, 120 Hawai#i 265, 278-79, 204

P.3d 484, 497-98 (2009) (stating that "second factor weighed in

favor of a retrial" where "the jury had trouble following the

evidence" and because "the case against Hinton was not a

particularly complex case, there was a basis for concluding that

another jury would be able to reach a verdict" (cleaned up)).

Factor 4

Kanae challenges COL no. 17:

17. Factor 4 (the likelihood of any substantial difference
in a subsequent trial, if allowed): While much of the
State's evidence will be the same, if a retrial is
allowed, the State's presentation and evidence will
not be identical. For example, the State will refine
its presentation to address [Kanae]'s
misidentification defense. Additionally, if the court
reconsiders its earlier ruling precluding evidence of
a May 15, 2018 shooting, the evidentiary landscape
will change in the State's favor. Finally, in the
event of a retrial, [Kanae] will have to establish
Kinney's unavailability before his out-of-court
statement is admitted as a statement against penal
interest. This factor weighs in favor o[f] retrial.

21
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The trial court was referring to its order granting

Kanae's motion in limine no. 7 to preclude the State from

offering evidence that Kanae shot Thomas in the leg at Monuments

on May 15, 2018 (four months before Thomas was killed), and its

order allowing Kanae to introduce Kinney's recorded interview

under Hawaii Rules of Evidence Rule 804(a)(5) after Kanae showed

he was unable to procure Kinney's presence at trial by process or

other reasonable means.

On the motion in limine, there was no dispute that

Thomas had been shot in the thigh and groin, at Monuments, on

May 15, 2018. Thomas identified Kanae to HPD as the shooter.

During the evidentiary hearing, Kanae called two witnesses who

testified that Kanae was not the shooter. The trial court ruled

that "events of May 15, 2018, would confuse the jury and result

in a trial within a trial."

Kanae argues the ruling would be the law of the case in

any retrial. "Unless cogent reasons support the second court's

action, any modification of a prior ruling of another court of

equal and concurrent jurisdiction will be deemed an abuse of

discretion." Gurrobat v. HTH Corp., 135 Hawai#i 128, 139, 346

P.3d 197, 208 (2015) (cleaned up).

Here, the trial court vacated its own order during the

post-trial hearing on the State's motion for reconsideration

based on new evidence (from a federal wiretap) that Kanae

admitted shooting Thomas on May 15, 2018. The court specifically

stated it was "not going to tie the hands of the trial judge that

22
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

will be" presiding over the retrial.3 The court also noted that

Shayden's trial testimony about how he knew Kanae had been

limited, but if evidence of the May 15, 2018 shooting was

admitted, Shayden would be allowed to testify that he "talked to

his father about that incident and knew who Kaden Kanae was from

that incident."

As to the order admitting Kinney's recorded interview,

Kanae argues "there is no reason to believe that Kinney will not

be as unavailable in the second trial as he was in the first so

his confession will undoubtedly be admitted in a subsequent

trial." Kanae will still have to make reasonable attempts to

serve Kinney with a trial subpoena to establish his

unavailability. If he does not, or if he is able to serve Kinney

with a trial subpoena, he may not be able to play the video of

Kinney's HPD interview to the next jury. And, as the trial court

noted, if Kinney is served, his decision to testify or not

testify "may change the landscape of this case."

The trial court acted within its discretion when it

determined that Factor 4 "weighs in favor o[f] retrial." Kanae

presents no argument against the court's findings and conclusions

that the other four Moriwake factors weighed against a dismissal.

IV. CONCLUSION

The August 21, 2024 Findings of Fact, Conclusions of

Law, and Order Denying Defendant's Motion to Dismiss Case for

3
The judge who presided over Kanae's trial was leaving the Hawai #i
State Judiciary to become a United States district judge for the District of
Hawai#i.

23
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Double Jeopardy Violation is affirmed. Kanae's May 21, 2026

Request for Retention of Oral Argument is denied. This case is

remanded to the circuit court for further proceedings.

On the briefs:
/s/ Katherine G. Leonard
Samuel P. King, Jr., Presiding Judge
for Defendant-Appellant
Kaden K. Kanae. /s/ Keith K. Hiraoka
Associate Judge
Steven S. Alm,
Prosecuting Attorney, /s/ Sonja M.P. McCullen
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee
State of Hawai#i.

24