State v. Dean

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NO. 29334

lN THE INTERMEDlATE COURT OF APPEALS

OF THE STATE OF HAWAI‘l

STATE OF HAWAfI, Plaintiff~Appellee, v
EDWARD DEAN, Defendant»Appellant

-.ir; § 1"~,,_3

APPEAL FROM THE ClRCUIT COURT OF THE SECOND CIRCUIT
{CR. NO. 99~0602(l))

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)

Defendant-Appellant Edward Dean (Dean) appeals from the
Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Dismiss for Egregious Prosecutorial
Misconduct and Double Jeopardy (FOF/COL/Order) filed on July 29,
2008 in the Circuit Court of the Second Circuit (circuit court).1
In the FOF/COL/Order, the circuit court denied Dean's August 21,
2007 Motion to Dismiss with Prejudice for Egregious Prosecutorial
Misconduct and Double Jeopardy (Motion to Dismiss).

On appeal, Dean argues that the circuit court erred in
denying his Motion to Dismiss because the denial was based on an
erroneous conclusion that misconduct by counsel for the State of
Hawafi (State) was not egregious enough to bar reprosecution
under the double jeopardy clause of article l, section 10 of the
Hawafi ConstitutionF (double jeopardy clause). Related to this
argument is his contention that in the FOF/COL/Order, Conclusions
of Law (COLs) 6, l8, 25, and 28 and portions of COLs l4, 24, 26,
27, and 29 are wrong. He does not dispute any of the Findings of
Fact (FOFs). He requests that we reverse the portion of the
FOF/COL/Order denying his Motion to Dismiss and dismiss this case

with prejudice.

1 The Honorable Joel E. August presided.
2 Article l, section 10 of the Hawafi Constitution provides that no

person shall "be subject for the same offense to be twice put in jeopardy."

See also State V. R©qan, 91 Hawai`i 405, 416, 984 P.Zd 1231, 1242 (1999).

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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 by the parties, as
well as the relevant statutory and case law, we resolve Dean*s
points of error as fol1ows:

(1) The circuit court did not abuse its discretion or
violate Dean's constitutional rights by denying the Motion to
Dismiss.

(a) COL 6 is not wrong because it does not
contradict COLs 3, 4, 5, and 7 and the circuit court had the
discretion to make determinations regarding the weight of the
evidence. state v. R@gan, 91 Hawai‘i 405, 412, 934,1>_2<1 1231,
l238 (l999); State V. MattiellO, 90 HaWafi 255, 259, 978 P.2d
693, 697 (l999).

(b) The disputed portion of COL 14 is not wrong
because the factors enumerated therein are the ones cited to in
Rogan, 91 Hawaiii at 412, 984 P.2d at 1238, and State v. Pacheco,
96 HawaiU_83, 95, 26 P.3d 572, 584 (2001), and nothing in Rogan
suggests that those factors are "open ended" and variable.

(c) COL 18 is not wrong because, as Dean admits,
it was impossible for the circuit court to give a curative
instruction in this case. Rogan, 91 Hawafi at 412, 984 P.2d at
l238.

(d) The disputed portion of COL 24 and all of COL
25 are not wrong because they do not improperly shift any burden
of proof to Dean.

(e) The disputed portion of COL 26 is not wrong
because there is no authority in this jurisdiction for Dean‘s
contention that a defendant should be afforded a presumption that
any omissions in disclosure of discoverable evidence are
intentional, and "[i]t is well~settled that an appellate court
will not pass upon issues dependent upon the credibility of
witnesses and the weight of the evidence." Mattiello, 90 HawaFi

at 259, 978 P.2d at 697.

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{f) The disputed portion of COL 27 is not wrong
because there is no authority in this jurisdiction for Dean's
contention that the State should have the burden of proving that
its failure to provide the missing evidence was unintentional,
and "{i]t is well»settled that an appellate court will not pass
upon issues dependent upon the credibility of witnesses and the
weight of the evidence." Mattiello, 90 HawaiU.at 259, 978 P.2d
at 697.

(g) COL 28 is not wrong because the circuit court
was tasked with determining whether the State's prosecutorial
misconduct was so "highly prejudicial" and “exceptional" that
Dean's right to a fair trial was affected. In making that
determination, the circuit court had the discretion to find that
the loss of Dean's son‘s live testimony was not so highly
prejudicial that Dean would be deprived of a fair trial on
reprosecution. Rogan, 91 Hawai‘i at 423 n.11, 984 P.2d at 1249
n.11,

(h) The disputed portion of COL 29 is not wrong
because the circuit court was within its discretion in concluding
that the loss of Dean's son's live, in-court testimony would not
deny Dean a fair trial. Dean may have already revealed his
defense claims to the State, but the State has revealed its trial
strategy and theory of the case to Dean. Regarding Dean‘s
allegation that the circuit court gave the State a "pass" with
regard to its prosecutorial misconduct, the court's finding in
its FOF/COL/Order "that the failure to identify and request or
present missing evidence during the investigation and trial of
this case was the result of a mutual mistake" was supported by
the evidence in the record.

Therefore,
IT IS HEREBY ORDERED that the Findings of FaCt,
Conclusions of Law, and Order Denying Defendant's Motion to

Dismiss for Egregious Prosecutorial Misconduct and Double

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Jeopardy filed on duly 29, 2008 in the Circuit Court of the
Second Circuit is affirmed.
DATED: Honolulu, HawaiUq January 20, 2010.

On the briefs:

Phyl1is J. Hironaka,
Deputy Public Defender, W}
for Defendant~Appellant. ;¢

/

Richard K. Minatoya, Chief Judge

De ut Prosecutin Attornev,
§ Y 9 ,

County of Maui,
Associate Judge

for Plaintiff-Appellee.
£¢</4/ "

Associate Judg

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