State v. Green

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-NOV-2023
07:51 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JAMES GREEN, JR., Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant James Green, Jr. (Green) appeals

from the Judgment of Conviction and Sentence (Judgment), entered

by the Circuit Court of the First Circuit on September 13, 2022.1

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 without prejudice to

1 The Honorable Paul B.K. Wong presided.
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Green's filing of a Hawai‘i Rules of Penal Procedure (HRPP)

Rule 40 petition, and remand for further proceedings.

I. Background

On April 14, 2021, Plaintiff-Appellee State of Hawaiʻi

(State) charged Green by criminal indictment with two counts of

Sexual Assault in the Third Degree in violation of Hawaii

Revised Statutes (HRS) § 707-732(1)(b) (2014),2 as follows,

COUNT 1: On or about October 8, 2020, in the City and
County of Honolulu, State of Hawaiʻi, JAMES GREEN, did
knowingly subject to sexual contact, [complaining witness
(CW)], a person who was less than fourteen years old, by
placing his hand on her buttock, thereby committing the
offense of Sexual Assault in the Third Degree, in violation
of Section 707-732(1)(b) of the Hawaiʻi Revised Statutes.

. . . .

COUNT 2: On or about October 8, 2020, in the City and
County of Honolulu, State of Hawaiʻi, JAMES GREEN, did
knowingly subject to sexual contact, [CW], a person who was
less than fourteen years old, by placing his hand on her
genitalia, thereby committing the offense of Sexual Assault
in the Third Degree, in violation of Section 707-732(1)(b)
of the Hawaiʻi Revised Statutes.

Following a four-day trial, the jury returned a

verdict finding Green guilty of both counts. On September 13,

2022, the circuit court sentenced Green to an indeterminate

2 HRS § 707-732(1)(b) (2014) states, in pertinent part,

Sexual assault in the third degree. (1) A person commits
the offense of sexual assault in the third degree if:

. . . .

(b) The person knowingly subjects to sexual contact
another person who is less than fourteen years old
or causes such a person to have sexual contact
with the person[.]
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five-year term of imprisonment for each count, with both terms

to run concurrently.

Green contends on appeal that the circuit court

committed plain error, and that Green's court-appointed trial

counsel was ineffective. We consider these contentions in turn,

and conclude that no plain error was committed below, and affirm

the Judgment without prejudice to Green's filing of a petition

for post-conviction relief, pursuant to HRPP Rule 40.

II. Discussion

A. Plain Error

"[A]n appellate court may recognize plain error when

the error committed affects substantial rights of the

defendant." State v. Metcalfe, 129 Hawaiʻi 206, 222, 297 P.3d

1062, 1078 (2013) (cleaned up); see HRPP Rule 52(b). This court

"will apply the plain error standard of review to correct errors

which seriously affect the fairness, integrity, or public

reputation of judicial proceedings, to serve the ends of

justice, and to prevent the denial of fundamental rights."

State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006)

(citations omitted). An appellate court's "power to deal with

plain error is one to be exercised sparingly and with caution

because the plain error rule represents a departure from a

presupposition of the adversary system--that a party must look

to his or her counsel for protection and bear the cost of

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counsel's mistakes." Metcalfe, 129 Hawaiʻi at 222, 297 P.3d at

1078 (citation omitted). Green contends three points of plain

error, as follows,3

(1) Green contends that "[p]lain error occurred where

the Court began jury empaneling with only 25 prospective jurors

present, leaving room for only 11 of those prospective jurors to

be excused while still meeting the 12-jurors-plus-2-alternates

requirement." Green contends that, despite the selection of a

jury panel of 12 jurors and 2 alternates, the "small pool" of 25

prospective jurors created "challenges" for counsel.

The record reflects that the State and Green could

have each exercised three peremptory challenges.4 The State

exercised three, and Green exercised one. Green does not

contend that he would have exercised additional peremptory

strikes had the jury pool been larger. Moreover, Green does not

contend that, of the twelve jurors and two alternates who were

empaneled, any should have been dismissed for cause.

The selection of jurors from a 25-person pool of

potential jurors does not, without more, constitute a "per se"

violation of Green's right to a fair and impartial jury. Even

3 Green asks this court to find plain error because he did not
object to the contentions of error below. See State v. Kelekolio, 74 Haw.
479, 515, 849 P.2d 58, 75 (1993) ("where plain error has been committed and
substantial rights have been affected thereby, the error may be noticed even
though it was not brought to the attention of the trial court").

4 Pursuant to HRPP Rule 24, in criminal jury trials "each side is
entitled to 3 peremptory challenges." HRPP Rule 24.
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assuming that a smaller-than-average jury pool constitutes an

irregularity in the jury selection process, Green does not show

improper motive or prejudice. State v. Mara, 98 Hawaiʻi 1, 12,

41 P.3d 157, 168 (2002) ("[I]f the jury finally impaneled in the

case at bar consisted wholly of qualified jurors, a mere

irregularity in the process is not itself a ground for reversal,

absent a showing of improper motive or prejudice.") We

conclude, on this record, that the selection of jurors from a

25-person jury pool was not plainly erroneous.

(2) Green contends that "[p]lain error occurred where

the Court allowed an expert opinion from [the State's] expert

despite no foundation being laid, and where the Court allowed an

expert opinion outside of [the expert's] expertise."

The record reflects that the State, without objection,

called Penny Kremer (Kremer) to testify as an expert in serology

and forensic DNA testing. Green agrees that Kremer was

qualified as an expert in serology and DNA testing. Kremer

testified that she is a criminalist, and that she works at the

Honolulu Police Department's (HPD) Scientific Investigation

Section, Forensic Biology Unit. She earned her Ph.D. in cell

and molecular biology from the University of Hawaiʻi at Manoa,

and her "duties and responsibilities" for HPD include

"examin[ing] items of evidence for DNA." Kremer testified that

she has performed DNA analyses "hundreds of times," and that HPD

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has an accredited DNA laboratory that meets "national and

international standards for DNA testing." She testified that

DNA testing was performed in the laboratory, and that all

standard operating procedures were followed to conduct the DNA

testing. She testified, moreover, that her work was reviewed by

another analyst before she documented that work.

Kremer testified that she took a dozen DNA samples

from CW's blanket taken at the crime scene, that two of the

samples contained a protein found in semen, and that Green

"could not be excluded" from one of the samples.5 Kremer

explained that she had also done a statistical analysis because

"[w]hen we find someone -- or a comparison that can't be

excluded, we do stats on -- to find out what would be the

probability of a person having all those markers." Kremer

testified that probability to be "one in greater than 8

trillion[,]" meaning that Kremer "would have to test greater

5 Kremer explained that Green "could not be excluded" from the
sample as follows,

That means when I compared him –- his profile, his known
profile, through that profile I obtained from that sample,
that he had all the markers. Even though it was partial,
he had all those markers. So he could not be excluded.

. . . .

[W]hen we develop a profile, it's like an individual's
telephone number, so you've got different numbers. It's
represented by numbers at different sections. So –- and
his profile will have different numbers at each section.
And so when I put them next to each other and I compared
them, he has all the markers that were on that questioned
sample.

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than 8 trillion people to find someone that . . . could not be

excluded from that sample."

Green did not object to Kremer's testimony during

trial and, accordingly, we deem the issue waived. "[O]bjections

to the admission of incompetent evidence, which a party failed

to raise at trial, are generally not subject to plain error

review." Metcalfe, 129 Hawaiʻi at 225, 297 P.3d at 1081 (citing

State v. Wallace, 80 Hawaiʻi 382, 410, 910 P.2d 695, 723 (1996))

("It is the general rule that evidence to which no objection has

been made may properly be considered by the trier of fact and

its admission will not constitute ground for reversal. It is

equally established that an issue raised for the first time on

appeal will not be considered by the reviewing court. Only

where the ends of justice require it, and fundamental rights

would otherwise be denied, will there be a departure from these

principles.") On that basis, we conclude that the circuit court

did not plainly err in its admission of Kremer's unobjected-to

expert testimony, including the statistical analysis.

(3) Green contends that "[p]lain error occurred where

the Court failed to sufficiently support its reasoning behind

Appellant's five-years-of-imprisonment sentence." Green agrees

that the circuit court "'addressed' each of the factors [a court

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considers in imposing a sentence],"6 but contends that "it did

not 'articulate' anything relative to those factors[.]"7 Green

relies upon State v. Kong, 131 Hawaiʻi 94, 102, 315 P.3d 720, 728

(2013), to support his contention.

In Kong, the Hawaiʻi Supreme Court held, in the context

of a trial court's imposition of a consecutive term sentence of

imprisonment that,

[Defendant] characterizes the circuit court's justification
for imposing consecutive terms of imprisonment as "terse,
conclusory, and lasting two words." However, the
sentencing court is not required to articulate and explain
its conclusions with respect to every factor listed in HRS
§ 706-606. Rather, it is presumed that a sentencing court
will have considered all factors before imposing concurrent
or consecutive terms of imprisonment under HRS § 706-606.
Thus, the sentencing court is required to articulate its

6 It appears that Green references the "[f]actors to be considered
in imposing a term of probation" set forth by HRS § 706-621(2) (2014), and
the "[f]actors to be considered in imposing a sentence" set forth by HRS
§ 706-606 (2014).

7 The circuit court explained, in imposing the sentence,

Having considered all the statements this morning as
well as the arguments of counsel, in determining whether or
not probation is the appropriate sentence in this case, the
Court is guided by Hawaii Revised Statutes Section 706-621.

There are ten factors to weigh to determine whether
or not probation is appropriate. The tenth factor, 706-
621(2)(j) is not applicable 'cause this is not expedited
sentencing.

With respect to the other nine factors to balance and
consider, (2)(e) weighs in favor of a probation term in
that the defendant has no history of criminal activity and
has led a law-abiding life prior to the commission of this
crime. All other factors weigh in favor of imprisonment.

And accordingly, in Counts 1 and 2, Mr. Green is
sentenced to serve the indeterminate terms of incarceration
of five years in each case. He will get credit for time
served. All of the terms are concurrent with each other
and any other term that defendant might have to serve. The
mittimus will issue forthwith.

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reasoning only with respect to those factors it relies on
in imposing consecutive sentences.

131 Hawaiʻi at 102, 315 P.3d at 728 (cleaned up) (emphasis

added). When imposing non-consecutive terms of imprisonment,

the sentencing court is not required to "articulate and explain

its conclusions" with regard to every sentencing factor. Id.

The circuit court sentenced Green to two indeterminate five-year

terms of imprisonment, with both terms to run concurrently. The

circuit court did not plainly err with respect to its imposition

of Green's indeterminate concurrent prison sentence.

B. Ineffective Assistance of Counsel

Green next contends that his appointed trial counsel

was ineffective. Pursuant to article I, section 14 of the

Hawaiʻi Constitution, and the Sixth Amendment to the United

States Constitution, defendants in a criminal proceeding have a

constitutionally guaranteed right to the effective assistance of

counsel at every critical stage of the prosecution. State v.

Salavea, 147 Hawaiʻi 564, 576, 465 P.3d 1011, 1023 (2020).

Green raises the issue of ineffective assistance of

counsel for the first time in this direct appeal. In such

cases, "the appellate court may consider the merits of the

appeal de novo if the record is sufficiently developed to

determine whether there has been ineffective assistance of

counsel." Id. at 575, 465 P.3d at 1022 (cleaned up).

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"The standard for determining the adequacy of

counsel's representation is whether, when viewed as a whole, the

assistance provided is within the range of competence demanded

of attorneys in criminal cases." Id. at 576, 465 P.3d at 1023

(cleaned up). "The burden of establishing ineffectiveness rests

with the defendant[,]" and "[defendant's] claim of inadequate

assistance will be upheld only if he can show there were

specific errors or omissions . . . reflecting counsel's lack of

skill, judgment, or diligence, and these errors or omissions

resulted in either the withdrawal or substantial impairment of a

potentially meritorious defense." State v. Smith, 68 Haw. 304,

309, 712 P.2d 496, 500 (1986) (cleaned up).

Green specifically alleges the following:

(1) "Court-appointed counsel was ineffective where he

failed to object to the absurdly low number of prospective

jurors called for jury duty, and where he also only used 1 of a

total of 4 peremptory challenges on the jury venire";

(2) "Court-appointed counsel was ineffective where he

failed to elicit testimony that the children in question had

twice before falsely accused [Green]";

(3) "Court-appointed counsel was ineffective where he

failed to ask any questions of [CW] and [CW's brother] regarding

discrepancies in their stories";

(4) "Court-appointed counsel was ineffective where he

failed to argue that the DNA could have come from the White
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Claw, and where counsel never questioned the DNA expert as to

other origins of the DNA besides semen";8

(5) "Court-appointed counsel was ineffective where he

failed to voir dire or object to [the State's] expert witness";

(6) "Court-appointed counsel was ineffective where he

offered no objection and no counter to [mother's] speculative

and unfounded testimony";

(7) "Court-appointed counsel was ineffective where he

apparently had zero trial experience as he made no motions for

judgment of acquittal";

(8) "Court-appointed counsel was ineffective where he

did not utilize the statements taken by police from the children

in question";

(9) "Court-appointed counsel was ineffective where he

essentially offered no argument at sentencing versus 12 pages of

argument presented by [the State]";9 and,

8 Green's reference to "the White Claw," is to an alcoholic
beverage can that Green testified to allegedly finding "partly under [CW's]
leg." On appeal, Green appears to contend that trial counsel should have
argued below that the DNA on the blanket, which Kremer testified as
containing a protein found in semen, could have come from DNA on the White
Claw can.

9 We disregard this contention because Green's opening brief
presents no discernible argument on this point of error. Kahoʻohanohano v.
Dep't of Hum. Servs., State of Haw., 117 Hawaiʻi 262, 297 n.37, 178 P.3d 538,
573 n.37 (2008) (Hawaiʻi appellate courts will "disregard a particular
contention if the appellant makes no discernible argument in support of that
position") (cleaned up); Hawaiʻi Rules of Appellate Procedure (HRAP)
Rule 28(b)(7) ("Points not argued may be deemed waived.").

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(10) "Court-appointed counsel was ineffective where he

allowed his client to enter stipulated facts negating [the

State's] requirement to prove DNA chain-of-custody and DNA

testing procedure, and where counsel stipulated to the grant of

all of [the State's] motions in limine and motion to determine

voluntariness."

We conclude that the record is not sufficiently

developed for this court to determine whether Steven Slavitt's

(Slavitt) representation was ineffective as to contentions 2

through 8, and 10. We reject Green's first contention, relating

to counsel's lack of objection to the "low" number of

prospective jurors, for the reasons discussed supra. We deem

Green's ninth contention waived, as explained in footnote 9.

State v. Silva, 75 Haw. 419, 439, 864 P.2d 583, 592 (1993)

("[N]ot every trial record is sufficiently developed to

determine whether there has been ineffective assistance of

counsel; indeed, a defendant is often only able to allege facts

that, if proved, would entitle him or her to relief[.]").

It appears, moreover, that Green's trial counsel,

Slavitt, was not provided notice of, nor the opportunity to

respond to, the ineffective assistance allegations that Green

raises for the first time on appeal.10 On this record, we are

10 It appears that Slavitt was not served with a copy of the opening
brief, as required by HRAP Rule 28(a). See HRAP Rule 28(a) ("If a brief
raises ineffective assistance of counsel as a point of error, the appellant

(continued . . .)
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unable to discern as to whether "the assistance provided is

within the range of competence demanded of attorneys in criminal

cases[,]" "there were specific errors or omissions reflecting

counsel's lack of skill, judgment, or diligence[,]" and these

"errors or omissions resulted in either the withdrawal or

substantial impairment of a potentially meritorious defense."

See Salavea, 147 Hawai‘i at 576, 465 P.3d at 1023 (cleaned up).

We thus affirm the Judgment without prejudice to

Green's filing of a petition for post-conviction relief,

pursuant to HRPP Rule 40, to allow for service of Slavitt, and

the development of a factual record as to those contentions of

ineffective assistance. Silva, 75 Haw. at 439, 864 P.2d at 592-

93 ("[W]here the record on appeal is insufficient to demonstrate

ineffective assistance of counsel, but where: (1) the defendant

alleges facts that if proven would entitle him or her to relief,

and (2) the claim is not patently frivolous and without trace of

support in the record, the appellate court may affirm

defendant's conviction without prejudice to a subsequent Rule 40

petition on the ineffective assistance of counsel claim.").

(. . .continued)

shall serve a copy of the brief on the attorney alleged to have been
ineffective.").
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III. Conclusion

For the foregoing reasons, the circuit court's

Judgment of Conviction and Sentence, entered on September 13,

2022, is affirmed, without prejudice to Green's filing of an

HRPP Rule 40 petition, and remanded for further proceedings

consistent with this summary disposition order.

DATED: Honolulu, Hawai‘i, November 20, 2023.

On the briefs:
/s/ Katherine G. Leonard
Kai Lawrence, Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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