SCWC IN THE SUPREME COURT OF THE STATE OF HAWAI I ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) APPLICATION FOR WRIT OF CERTIORARI.

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1 SCWC Electronically Filed Supreme Court SCWC NOV :08 AM IN THE SUPREME COURT OF THE STATE OF HAWAI I STATE OF HAWAI I, Respondent-Appellee, vs. EUGENE PARIS JR., Also know as Eugene J.E. Rivera, Jr. Petitioner-Appellant. CR. NO APPLICATION FOR WRIT OF CERTIORARI FROM THE MEMORANDUM OPINION FILED ON JULY 31, 2015 INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I HONORABLE CRAIG H. NAKAMURA Presiding Judge HONORABLE DANIEL R. FOLEY HONORABLE KATHERINE G. LEONARD Associate Judges APPLICATION FOR WRIT OF CERTIORARI and APPENDIX Landsberg Law Office By: Marcus Landsberg, IV ( Bishop St. #PH Honolulu HI Telephone ( LandsbergLegal@gmail.com Attorneys for Defendant-Appellant Eugene Paris (SERVICE OF NOTICE OF ELECTRONIC FILING GENERATED BY JEFS

2 APPLICATION FOR WRIT OF CERTIORARI Petitioner-Appellant Eugene Paris (Petitioner, Defendant-Appellant in the Intermediate Court of Appeals (ICA, pursuant to Rule 40.1, Hawai i Rules of Appellate Procedure (HRAP, respectfully prays that a writ of certiorari be issued to review the Memorandum Opinion of the ICA filed on July 31, 2015, attached at Appendix. As the ICA s Judgement on Appeal was filed on September 22, 2015 and a timely extension of an additional thirty days was granted, this Application may be filed on or before November 21, 2015, pursuant to HRAP 26 and This Court has jurisdiction to entertain this Application pursuant to Hawai i Revised Statutes (HRS and QUESTIONS PRESENTED I. Whether the ICA gravely erred in concluding that the charging language for Escape in the Second Degree was sufficient. II. Whether the ICA gravely erred in concluding there was sufficient evidence to uphold Paris conviction for Escape in the Second Degree. III. Whether the ICA gravely erred by determining the Prosecutor did not commit misconduct or misstate the necessary state of mind. IV. Whether the ICA gravely erred by concurring that the Court s jury instruction was a correct statement of the law and not an obvious inconsistency with the holding presented by Question I. V. Whether the ICA gravely erred by holding that the trial court did not abuse its discretion by failing to apply the doctrine of judicial estoppel. STATEMENT OF PRIOR PROCEEDINGS!1

3 On February 7, 2012, Petitioner was charged via Felony Information 1 with Escape in the Second Degree in violation of HRS (Record on Appeal (ROA pdf page number: Hearings on two substantive motions to dismiss were held. The first on December 26, 2012 (Electronic docket number 21 referenced the contract issue. The second on July 2, 2013 (Electronic docket number 34 was in reference to the deficient charging language issue. Following a jury trial, the jury returned a verdict of guilty-as-charged. (ROA: 311. In its Memorandum Opinion, the ICA affirmed the conviction and sentence. See Appendix. STATEMENT OF THE CASE The facts in this case are largely undisputed. On January 11 th, 2012, Petitioner was on extended work furlough status, where he lived with his mom and worked in the community. The main witness for the Prosecution was Mr. Villanueva, Petitioner s assigned case manager. (10/28/2013 Tr. at Petitioner s place of detention was his mother s house. (10/28/13 Tr. at 235, l.5-7. The Prosecution alleged that the parameters of Petitioner s supervision were given to him within two documents that were admitted into evidence. The furlough agreement dated June 14, 1 The Felony Information reads in relevant part: The Department of the Prosecuting Attorney charges: On or about the 11th day of January, 2012, to and including, February 2, 2012, in the City and County of Honolulu, State of Hawaii, EUGENE PARIS, Jr. also known as Eugene J.E. Rivera, Jr., did intentionally escape from a correctional or detention facility or from custody thereby committing the offense of Escape in the Second Degree, in violation of Section of the Hawaii Revised Statutes Escape in the second degree. (1 A person commits the offense of escape in the second degree if the person intentionally escapes from a correctional or detention facility or from custody. (2 Escape in the second degree is a class C felony. [L 1972, c 9, pt of 1; gen ch 1993] 3 Page citation to the ROA refers to the pdf file of the ROA filed under Docket Number 23 and 25 of the Judiciary Electronic Filing and Service System (JEFS.!2

4 2011, accepted into evidence as State s Exhibit 1 (Tr. at 200. EROA at includes terms such as a promise not to use credit cards (EROA at 319, para 15, the cost to destroy the smoke detector in the room (Id. at 320, para 31., and a promise to pay $50 if Petitioner s room key is destroyed. (Id., para 33. The furlough agreement (State s Exhibit 1 specifically states that a defendant on a pass must return to the custody of the Department of Public Safety under certain conditions, informing Petitioner that when he is not at Laumaka, he is not in custody. (10/28/13 Tr. at The second document is the extended furlough agreement from November 30, 2011, (10/28/13 Tr. at 215. This was accepted into evidence as State s Exhibit 2. (Id. at 218. EROA at 322. This fundamentally changed at least some of the terms of the prior June 14, 2011 agreement. (10/28/13 Tr. at 251. This was explained to Mr. Paris on November 30, 2011 alongside the notice of programming document, which was accepted as State s Exhibit 3 (Id. at 223. EROA at Neither of the two documents include the term escape. In fact, on the November 30, 2011 meeting where Mr. Paris was given the furlough terms, escape was never discussed as a punishment. (Id. at 234, l The word escape appears zero times in either November 30, 2011 document. (10/28/13 Tr. at 230. In reference to the punishment for not following the conditions of extended furlough, Mr. Villanueva testified, I will take him off extended furlough. (Id. at at 217, l.1-3. Mr. Villanueva testified failure to follow the terms of the November 30, 2011 agreement would result that Mr. Paris would not be able to continue his participation on extended furlough. (10/28/13 Tr. at 234, l In addition, the earlier contract of June 14, 2011 states that any deviation from the following: date of validity, time expiration, destination, and purpose/intent of the!3

5 furlough pass will result in the processing of a high misconduct violation and referred to the adjustment hearing process. This may jeopardize continued participation in the furlough program and may result in transfer from OCCC [Oahu Community Correctional Center]. (Id. at Mr. Paris was specifically told the punishments for not following terms. These punishments did not include criminal charges. At trial, Petitioner argued that the second document necessarily overrode the conflicting terms in the first document. Even if it did not override those terms, violating an extended furlough term is not equivalent to an Escape criminal charge under law. Defendant was authorized to live in Wahiawa and had to check in on Wednesdays at 6 o clock a.m. (10/28/13 Tr. at 216. On January 11 th, 2012 Eugene Paris followed the process required when a furloughee is unable to return to custody. (10/28/13 Tr. At 257, l Defendant is the one who called the case manager. (10/28/13 Tr. at 257, l Mr. Villanueva gave him permission to return as late as 9:00 pm, invalidating the prior pass. (10/28/13 Tr. At 259, l Defendant was never informed that his work furlough was being canceled. He was never informed that his mother s house was no longer his detention facility. No evidence was elicited that Defendant ever stopped living at his mother s house. Mr. Villanueva expressed that on January 11, 2012 Defendant is the one who called the case manager at Laumaka Work Furlough Center. (Id. at 257, l He said Mr. Paris did not need to return until 9 o clock at night. (Id. at 259, l Mr. Villanueva explained he knew that Mr. Paris father was in a wheelchair, and his mother needed his help to take care of the dad. (Id. at !4

6 Moses Fonoimoana, the acting sergeant at Laumaka Work Furlough Center, monitored the inmates on furlough, and was familiar with Eugene Paris. (10/30/13 Tr. at 7-9. On January 11, 2013 Mr. Paris called Mr. Fonoimoana to inform him of his inability to return. (10/30/13 Tr. at 11, l Mr. Fonoimoana testified that, as far as he knew, no one called the defendant, his family or the employer as a way to find Mr. Paris. (10/30/13 Tr. at Officer Waldron Chung was the police officer on traffic duty the night of February 2, 2012, looking for impaired drivers. (10/30/13 Tr. at Officer Chung pulled over someone who identified himself as Mr. Rivera, later admitting to being Eugene Paris. (10/30/13 Tr. at Upon finding out there was a warrant for Mr. Paris arrest, Mr. Paris was placed under arrest for this instant charge, there were no separate charges filed. (10/30/13 Tr. at 27. Officer Chung recognized an open wound on Mr. Paris hand and took Mr. Paris directly to Waianae Comprehensive first. (10/30/13 Tr. at Officer Chung recognized none of the classic signs of intoxication, nor was a Drug Recognition Expert called to ascertain evidence of drug use. (10/30/13 Tr. at REASONS WHY THE WRIT SHOULD BE GRANTED 1. THE FELONY INFORMATION FOR ESCAPE IN THE SECOND DEGREE WAS FATALLY INSUFFICIENT BECAUSE IT FAILED TO PROPERLY ALLEGE ALL OF THE NECESSARY ELEMENTS, I.E., ATTENDANT CIRCUMSTANCES, NECESSARY TO CONVICT. The Felony Information alleges Eugene J.E. Rivera, Jr. did intentionally escape from a correctional or detention facility or from custody. Detention facility and custody each have a specific legal definition in Hawaii Revised Statutes ( HRS "Custody" means restraint by a public servant pursuant to arrest, detention, or order of a court. Detention!5

7 facility includes any place otherwise confined pursuant to order of a court. Defense preserved this argument by filing a Motion to Dismiss Complaint for Failure to State an Offense. (See EROA at Leaving out this definition is a classic Wheeler 4 violation: here the definition of an offense... includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species... and descend to particulars. In the instant case custody was interpreted multiple ways. The trial court could not have expressed the multiple definitions of custody more clearly than when it overruled Petitioner s objection to Respondent s odd use of the word custody during opening statement. The Court stated: Well, there's the legal term custody. There's also custody in a general sense, which means confinement. So I understand what you're saying. But at this point I'm going to overrule the objection. 10/28/13 Tr. at 177, l.23 - p.178, l.1. These two rulings the Court made are diametrically opposed to each other. In response to the Defense s July 2, 2013 motion that the meaning of custody in the charging document is unclear, the court ruled it is clear. In response to the Prosecutor using a general, rather than legal, implication of custody, the Court points out the different meanings and allows the Prosecutor to continue. This is fundamentally unfair to the Petitioner and a violation of Wheeler. If custody is a recognized legal term, relevant to this case, as well as a general sense, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species and descend to particulars. These two rulings cannot hold in the same case. 4 State v. Wheeler, 121 Haw 383, 393, 219 P.3d 1170, 1180 (2009.!6

8 In addition, custody took on a third definition when State v. Smith 5 was referenced, including the jury instruction discussed in Reason 4, supra. This is proof of the incompleteness of the charging document. At a hearing held on July 2 nd, 2013, the Honorable judge suggested a third, uncharged way Defendant could get convicted of Escape in the Second Degree by quoting Smith. The Court quoted while the facility did not have actual physical control over the minor at the time, he is alleged to have escaped and had control and custody in the sense that the minor was released on furlough, not as a free person but one legally bound by restrictions, end quote. (7/2/13 Tr. at 4, l This added another definition to confuse Petitioner, as a person bound by restrictions is not the statutory definition, nor the general sense definition of custody. Petitioner never knew what he was being charged with, as the definition of custody kept changing. The practical ramifications of this Wheeler violation included Petitioner failing to understand that the charge against him was about being in a specific legal definition of custody, when he thought he was out of custody, based on the information of both of State s Exhibits 1 & 2 and the general sense meaning of the word custody, recognized by the seated judge. 2. THERE WAS INSUFFICIENT EVIDENCE TO UPHOLD PARIS CONVICTION FOR ESCAPE IN THE SECOND DEGREE. The Felony Information in the instant case requires that Petitioner escape the detention facility where he is being held. While the State s case focused on Petitioner escaping custody, there is zero evidence alleged that he ever left his mother s house outside of the guidelines provided. 5 State v. Smith, 58 Haw. 456, 583 P.2d 337 (1978.!7

9 While it is conceded by the Defense that he may have missed a check in at the Laumaka correctional facility, that was only a check in. Smith clarifies an additional type of escape for not returning to custody after a short term pass. Petitioner was not on a short term pass, his undisputed place of detention was his mother s house. Missing a term and condition of work furlough does not create an Escape in the Second Degree charge. No where in the law or in the documents provided to Petitioner is it ever suggested that if he misses a check-in appointment, it will be treated as if he escaped the prison facility. Failures to cooperate with check-in procedures are specifically addressed in the State s exhibits, none include prosecution. 6 Furthermore, Noel Villanueva, whose job it is to determine and inform Petitioner of where Petitioner s detention facility is, testified that [Petitioner s mother s] house would become his new place of detention. (10/28/13 Tr. at 235, l.1-9. Once that occurs, state must disprove that Petitioner was still residing at his detention facility 7. In addition to the lack of evidence to prove an actual escape from his mother s house. There is zero evidence of an intent to escape from his place of detention or custody, his mother s house. With no evidence of escape from his place of detention, or even evidence of intent to 6 10/28/13 Tr. at Compare State v. Yee, 630 P.2d 129 (1981 referencing trespassing: By the testimony of the hotel's own personnel, appellants were not unlawfully on the premises if they were invited by guests. The State did not prove that the appellants were not invited upon the premises by guests of the hotel. The burden in a criminal case is upon the State to prove every essential element of its case. It did not prove that appellants were unlawfully on the premises at the times in question. Comparably, if the Defendant has been legally placed at a detention facility, the State must prove that he escaped that facility. In this case the State argued he never arrived at a different correctional facility with no reference to where he was actually assigned.!8

10 escape from his place of detention, there is insufficient evidence to find Petitioner guilty of Escape in the Second Degree. Petitioner s presence in a car on February 2, 2012 is inapposite to this case. There are no terms and conditions entered into evidence that disallow night driving. Nothing about that drive suggest his detention facility or place of custody was not still at his mother s house. 3. PROSECUTION ARGUED INTENTIONALLY WHILE USING EXAMPLES OF KNOWINGLY During Closing arguments the Prosecution argued examples of the knowingly state of mind in spite of the fact that the standard for State of Mind alleged was intentionally. Defense made a motion for a mistrial, or in the alternative a motion to inform the jury of the knowing jury instruction. (10/30/13 Tr. at 114 l.24 to 115 l.11. The circuit court denied both parts of the motion and did not give a curative instruction To the extent you feel it prejudices your client, then a motion for a mistrial was made. I ll also deny that motion. (Id. at l For example, during closing argument, the prosecutor argued: [I]t s absolutely clear that the furlough agreement is in full effect during the entire period the defendant is on furlough, whether it be regular furlough or the -- another privilege, extended furlough. It's absolutely crystal clear. And that's why Mr. Villanueva goes through the terms, makes sure he answers any questions that the defendant has. That's why the defendant initials and signs. (10/30/13 Tr. at 108 l Emphasis added. It's abundantly clear the defendant has to check in with Mr. Villanueva at Laumaka every Wednesday at 6:00 A.M. How do we know that it is clear the defendant absolutely understood this? (Id. at 109 l.25 to 110 l.1-4. Emphasis added. He knew crystal clear where he needed to be, number 1, to meet with Mr. Villanueva and, number 2, to get another extended furlough pass. (Id. l Emphasis added.!9

11 He understood and agreed that when called he needed to return back to Laumaka in a timely manner. (Id. l Emphasis added. All of these imply understanding as opposed to conscious object. Prosecution started with this theme in Opening Statement: [T]he defendant acknowledges that he understands if he is contacted by any employee at Laumaka Work Furlough Center and told he needs to come back and report immediately he must do so. (10/28/13 Tr. at 176, l.1-4. Emphasis added. This confusion of the standards persuaded the jury that knowledge was enough, and caused Petitioner to be convicted accordingly. 4. WHETHER THE ICA GRAVELY ERRED BY CONCURRING THAT THE COURT S JURY INSTRUCTION WAS A CORRECT STATEMENT OF THE LAW AND NOT AN OBVIOUS INCONSISTENCY WITH THE HOLDING PRESENTED BY QUESTION I. The Court provided a Jury instruction that was outside the Hawaii Pattern Jury Instructions that was inapplicable to the instant case and sent the wrong message to the jury. When jury instructions or the omission thereof are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. 8 The following jury instruction invaded the province of the jury to decide the case and directed the verdict: An escape may be perpetrated by a person even though he is not in actual physical custody or under immediate control and supervision of a guard. A person may be deemed to be in custody when released from a correctional or detention facility on furlough and legally bound by restrictions. (10/30/14 Tr. at 100 l.25-p.101 l.5. This jury instruction informs the jury of something the Petitioner was never made aware, that terms and conditions may predicate an Escape in the Second Degree conviction, instead of 8 State v. Flores, 131 Haw. 43, 57-58, 314 P.3d 120, (2013 internal citations deleted.!10

12 the elements of the charge. This directs the verdict and redefines the necessary attendant circumstances. For the Prosecutor to need a Jury instruction to clarify the meaning of custody, when, as discussed supra in Argument 1, the Prosecution s stance is that the meaning of custody is so clear to a person of ordinary understanding as to not need clarifying language in the complaint is fundamentally unfair to the Defendant and contributes to his lack of understanding of the crime charged. In addition, terms and conditions or legally bound by restrictions is not a phrase that appears in the legal definition of custody or detention facility, and is an after-the-fact addition outside the legal definition of what Escape contains. Again, this prejudices the Defendant to not know what the charge is against him, as well as it not even being what the charge is supposed to be. This instruction was based on State v. Smith, 59 Haw. 456, 583 P.2d 337 (1978. In Smith, a juvenile defendant is released from Hawaii Youth Correctional Facility to return the same day at 7:00 pm and fails to do so. In Smith the correctional facility was the Defendant s place of detention. In this fact situation, Petitioner had a place of detention, as assigned by the government, that was outside the correctional center. For that reason, the instruction is not applicable to Petitioner, and the State must prove he escaped custody as applicable to Petitioner not someone who is involved in an entirely different circumstance. 5. WHETHER THE ICA GRAVELY ERRED BY HOLDING THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FAILING TO APPLY THE DOCTRINE OF JUDICIAL ESTOPPEL. On December 26, 2012 The Prosecution won a motion to dismiss with the argument that State would argue there was no contract. (12/26/12 Tr. at 7. Emphasis added. The Prosecution!11

13 showed up for trial on October 28, 2013 holding the opposite position, calling the documents involved a contract throughout the entire case. Petitioner relied on this representation, as well as the doctrine of Judicial Estoppel in State v. Anger, 105 Haw. 423, 433, 98 P.3d 630, 640 (2004: [a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him. Due to State s new position, Petitioner s Constitutional Right to a Fair Trial, and Right to be Informed of the Charges Against Him were infringed. Defendant was unable to switch gears quickly enough to make this at trial about contractual terms and conditions rather than a trial about the elements as listed in the charge for Escape in the Second Degree. Had the Prosecutor maintained a consistent position, Defense would have won the motion to dismiss on December 26, Alternatively, the switching of this argument at the last minute caused the Defense to be caught in a trial-by-ambush as the government abandoned their prior theory of the case on the fly. CONCLUSION Based on the above, Petitioner respectfully requests that this Court review the ICA s Memorandum Opinion and reverse the order affirming Petitioner s conviction. DATED: Honolulu, Hawai i, November 13, Respectfully submitted,= BY: _/s/ MARCUS L. LANDSBERG IV MARCUS L. LANDSBERG IV ATTORNEY FOR PETITIONER-APPELLANT!12