Preview:

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

Electronically Filed Supreme Court SCWC-29937 15-MAY-2012 09:15 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--STATE OF HAWAI#I, Respondent/Plaintiff-Appellee, vs. GLENN KEOHOKAPU, JR., Petitioner/Defendant-Appellant. NO. SCWC-29937 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29937; CR NO. 08-1-0905) May 15, 2012 ACOBA, DUFFY, AND MCKENNA, JJ.; WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS OPINION OF THE COURT BY ACOBA, J. We hold in this case that the process by which a jury was selected for the trial of Petitioner/Defendant-Appellant Glenn Keohokapu, Jr. (Petitioner) did not result in substantial prejudice to Petitioner notwithstanding the pretrial publicity to which some jurors were exposed, and we therefore affirm the June 22, 2009 judgment of conviction for manslaughter entered by the

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

Circuit Court of the First Circuit (the court),1 and, to the same extent, the October 6, 2011 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its September 22, 2011 summary disposition order (SDO),2 see State v. Keohokapu, No. 29937, 2011 WL 4426889 (Haw. App. Sept. 22, 2011). However, we vacate

Petitioner's extended term sentence and remand for disposition of the case consistent with this opinion inasmuch as we hold that as to the extended sentencing proceedings (1) where the jury must determine whether an extended term of imprisonment is necessary for the protection of the public it is error to instruct the jury that the extended term sentence includes the possibility of parole; (2) and, additionally, that in this case it was error to admit the statement of one of the witnesses during the sentencing phase as past recollection recorded; and (3) these errors were not harmless beyond a reasonable doubt. I. The following essential matters are from the record and the submissions of the parties. A. On the night of June 7, 2008, Petitioner, Petitioner's wife, Kauilani Keohokapu (Kauilani),3 and Petitioner's brother

1

The Honorable Virginia L. Crandall presided.

2 The SDO was filed by the Presiding Judge Daniel R. Foley, the Honorable Alexa D.M. Fujise, and the Honorable Lisa M. Ginoza. 3 Kauilani Keohokapu is referred to by her first name in order to distinguish her from Petitioner.

2

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

went to club "Komo Mai."

Decedent Steven Wilcox and his friend At some point, Petitioner

Robin Gregory also were at the club.

became upset because Gregory was allegedly staring at Kauilani. Petitioner left the club and went outside to his car. Kauilani

followed Petitioner, and the two allegedly began to argue. Later, Petitioner's brother came out of the club to the car, and it appears that the three argued. During the argument, Petitioner's brother grabbed Kauilani's arm and pushed her away from the car. At that moment,

Wilcox came out of the club, approached the car, and said something to the effect of, "That's one female." Petitioner, who

was sitting in the car, got out and said, "[T]hat's my wife." Petitioner and Wilcox then began to fight. At one point,

witnesses stated that they saw Petitioner with a metal object or a knife in his hand. Sometime during the fight, Petitioner and

Wilcox collided, and Petitioner stabbed Wilcox in the chest. Petitioner then went back to his car and drove away. 2008, Wilcox died as a result of the stab wound. B. On June 12, 2008, Respondent/Plaintiff-Appellee State of Hawai#i (Respondent) charged Petitioner with murder in the second degree, Hawai#i Revised Statutes (HRS)

Download State v. Keohokapu.  Concurring and Dissenting Opinion by C.J. Recktenwald, in w

Hawaii Law