State v. Talo ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2022
07:51 AM
Dkt. 79 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
LOGOVII TALO, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1PC161000667)
MEMORANDUM OPINION
(By: Leonard, Presiding J., Hiraoka, J.; and
Circuit Court Judge Ashford, in place of Ginoza, C.J.,
and Wadsworth, Nakasone and McCullen, JJ., all recused)
Defendant-Appellant Logovii Talo (Talo) appeals from
the June 18, 2020 Order of Resentencing Revocation of Probation
Notice of Entry (Resentencing Order) entered by the Circuit Court
of the First Circuit (Circuit Court).1
I. BACKGROUND
A. Procedural History
On April 27, 2016, Plaintiff-Appellee the State of
Hawai#i (State) charged Talo by Felony Information with Assault
1
The Honorable Karen T. Nakasone presided.
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in the Second Degree, in violation of Hawaii Revised Statutes
(HRS) § 707-711(1)(a) (2014) and/or HRS § 707-711(1)(b) (2014).2
On April 4, 2017, Talo pled no contest to Assault in the Second
Degree. On June 29, 2017, the Circuit Court entered a Judgment
of Conviction and Probation Sentence Notice of Entry (Judgment of
Conviction), sentencing Talo to four (4) years of probation with
special terms and conditions and one day imprisonment, with
credit for time already served.
The Form K (plea) provided that the maximum
imprisonment/fine was five (5) years and $10,000, with no
extended term of imprisonment or mandatory minimum term of
imprisonment. Talo's terms and conditions of probation provided,
in relevant part:
8. Your further special conditions of probation are as
follows: You Shall:
a. Follow all reasonable instructions which are
given to you by your probation officer;
b. Not own or possess any firearms or ammunition.
If you have any firearms or ammunition, you must
2
HRS § 707-711(1)(a),(b) provides:
§ 707-711 Assault in the second degree. (1) A
person commits the offense of assault in the second degree
if:
(a) The person intentionally or knowingly causes
substantial bodily injury to another;
(b) The person recklessly causes serious or
substantial bodily injury to another[.]
. . . .
(2) Assault in the second degree is a class C
felony.
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immediately turn them in to the appropriate
county police department;
YOUR FURTHER SPECIAL TERMS AND CONDITIONS OF
PROBATION ARE ATTACHED.
WARNING:
IF YOUR WHEREABOUTS BECOME UNKNOWN TO YOUR PROBATION
OFFICER BECAUSE OF YOUR FAILURE TO KEEP HIM/HER INFORMED,
THE COURT MAY ORDER YOUR ARREST. UPON ANY FAILURE TO COMPLY
WITH EACH OF THE TERMS AND CONDITIONS OF YOUR PROBATION,
INCLUDING SPECIAL CONDITIONS, THE COURT MAY REVOKE YOUR
PROBATION AND SENTENCE YOUR [sic] TO PRISON OR CHANGE OR ADD
TO THE CONDITIONS OF YOUR PROBATION.
YOU ARE FURTHER INFORMED THAT YOU ARE PROHIBITED FROM OWNING
OR POSSESSING ANY FIREARM OR AMMUNITION PURSUANT TO HRS §
134-7.
. . . .
YOU SHALL:
. . . .
B. Not own or possess any firearms or ammunition. If you
have any firearms or ammunition, you must immediately
turn them in to the appropriate county police
department;
. . . .
Q. Submit at reasonable times to a search of your person,
residence, vehicle, or other sites and property under
your control by any probation officer, with or without
a warrant, based on reasonable suspicion that illicit
substance(s) or other contraband, may be in the
place(s) of a search. Any illicit substance(s) or
contraband found or observed in such a search may be
seized[.]
On June 29, 2017, Talo signed an Acknowledgment of
Receipt of Conditions of Probation/DAGP/DANCP Supervision. Talo
and his probation officer signed the terms and conditions of
probation on July 20, 2017.
On December 6, 2019, the State filed a Motion for
Revocation of Probation, Resentencing and Issuance of Bench
Warrant (Motion to Revoke Probation) and moved for the issuance
of a Bench Warrant for Talo for violating the terms and
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conditions of probation pursuant to HRS § 706-625 (2014),3 based
in part on the recovery of a firearm and ammunition from Talo's
residence stemming from a warrantless search executed on December
6, 2019. According to a Warrantless Search Report, Search Unit
Supervisor for the Adult Client Services Branch, Eleanor Kekauoha
(Kekauoha), received confidential information that Talo was in
possession of a firearm. On October 7, 2019, Kekauoha contacted
the Honolulu Police Department (HPD) requesting security for a
possible warrantless search.
The Warrantless Search Report included that Talo failed
to report a correct address and did not report to his probation
3
HRS § 706-625 provides, in relevant part:
§ 706-625 Revocation, modification of probation
conditions. (1) The court, on application of a probation
officer, the prosecuting attorney, the defendant, or on its
own motion, after a hearing, may revoke probation except as
provided in subsection (7), reduce or enlarge the conditions
of a sentence of probation, pursuant to the provisions
applicable to the initial setting of the conditions and the
provisions of Section 706-627.
. . . .
(3) The court shall revoke probation if the defendant
has inexcusably failed to comply with a substantial
requirement imposed as a condition of the order or has been
convicted of a felony. The court may revoke the suspension
of sentence or probation if the defendant has been convicted
of another crime other than a felony.
(4) The court may modify the requirements imposed on
the defendant or impose further requirements, if it finds
that such action will assist the defendant in leading a law-
abiding life.
(5) When the court revokes probation, it may impose
on the defendant any sentence that might have been imposed
originally for the crime of which the defendant was
convicted.
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appointments on October 10 and October 17, 2019. On October 25,
2019, Talo confirmed his correct address.
The report also provided that Kekauoha met with HPD on
December 4, 2019, for a briefing concerning the upcoming
warrantless search, and she also met with the Adult Probation
Search Unit on December 5 and December 6, 2019, for briefing.
The Adult Probation Search Unit, with HPD present for security,
executed a warrantless search of Talo's residence at
approximately 10:00 a.m. on December 6, 2019, which resulted in
the recovery of a firearm and ammunition. Talo was then arrested
on a Probation Revocation Warrant, as well as for
Ownership/Possession Prohibited, Possession of a Prohibited
Weapon; however, as discussed herein, Talo was never "conferred"
to the prosecutor's office for charges related to such non-
probation-related offenses or otherwise charged with those
offenses.
The Declaration of Supervising Probation Officer Dwight
S. Sakai (Sakai) accompanied the Motion to Revoke Probation and
provided several bases for revoking Talo's probation including,
in relevant part:
5. That in a Petition for an Order for Protection,
filed on June 28, 2019, in Case Number FC-DA No. 19-1-1456,
by [Talo]'s wife, Jenifer L.P. Talo [(Jenifer)], she stated
that [Talo] had access to firearm(s) from "family and
friends who has weapons." That Petition was dissolved
without prejudice as of July 10, 2019;
6. That in a Petition for an Order for
Protection, filed on July 26, 2019, in Case Number FC-DA No.
19-1-1676, by [Jenifer], who stated that [Talo] had access
to firearm(s) from "family and friends who has weapons."
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That Petition was dissolved without prejudice as of August
7, 2019;
7. That on December 6, 2019, a warrantless search
was executed on [Talo], which resulted in the recovery of
ammunition from his vehicle;
8. That [Talo], in the City and County of Honolulu,
State of Hawai#i, and within the jurisdiction of this court
and while the terms and conditions of probation were still
in effect, violated the terms and conditions of probation as
follows:
X That [Talo] failed to report to the
[Administrative Risk Management Section (ARMS)]
Section on April 3, 2019 and October 10, 2019,
despite instructions to do so;
X That on November 7, 2018, [Talo] reported late
to his appointment with the ARMS probation
officer;
X That [Talo] failed to notify the ARMS Section of
the change in his address, prior to moving on
March 1, 2019;
X That [Talo] failed report the correct address to
the ARMS Section, which resulted in the return
of the appointment letter to the ARMS Section,
undeliverable, and with a postmark on the
envelope, indicating that the address was
incorrect;
X That [Talo] failed to notify the ARMS Section of
the change in the status of his telephone
number, which resulted in the ARMS Section's
inability to contact [Talo] by phone on October
21, 2019;
X That a firearm and ammunition were recovered
from [Talo]'s residence.
On December 12, 2019, the State filed a Motion to
Revoke Bail or, in the Alternative, to Increase [Talo]'s Bail
(Motion to Increase Bail). On December 12, 2019, a Report of
Probation Officer was filed, noting that Talo's case was assigned
to ARMS and indicated, inter alia, various alleged probation
violations. On December 13, 2019, the Circuit Court granted the
State's Motion to Increase Bail and bail was set at $100,000.00.
On January 10, 2020, a Supplemental Report of Probation Officer
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was filed providing that the investigation on Talo's pending
firearms case was still pending. This report provided:
On January 9, 2020, [HPD] Detective David Lacuata
[(Detective Lacuata)], who is conducting the investigation
on [Talo]'s pending firearms case, reported that the
investigation is still pending.
On January 16, 2020, the Circuit Court held a hearing
on the Motion to Revoke Probation, which was based on the alleged
violations set forth in Sakai's declaration, including: (1)
Talo's failure to report on April 3, 2019, and October 10, 2019;
(2) Talo reporting late on November 7, 2019; (3) Talo's failure
to notify probation of change of address; (4) Talo's failure to
report correct address; (5) Talo's failure to notify probation of
change in telephone number; and (6) the firearm and ammunition
recovered from Talo's residence. Talo made an oral motion to
suppress the evidence gathered as a result of the warrantless
search, including the firearm and ammunition (Motion to Suppress
Evidence). The Circuit Court considered the Motion to Suppress
Evidence as a challenge to the reasonableness of the warrantless
search under State v. Propios, 76 Hawai#i 474, 879 P.2d 1057(1994). The Circuit Court also noted:
Let me put this on record before we begin the hearing.
I did want to put both sides on notice that the Court does
have a concern that by proceeding on the firearm and
ammunition probation violation, and if defendant is found
guilty of that violation and there's a consequence, and he
gets a penalty for that violation, it may create a double
jeopardy type problem if the defendant gets a penalty from
this court on the firearm and ammunition violation and then
he's subsequently charged for the criminal offense based on
this firearm and ammunition, which would be the same
conduct. I do have concerns, and I've articulated those
concerns off record leading up to today, and the State is
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aware of the Court's concern, but the State still wants to
proceed on this violation, right?
As discussed further below, the Circuit Court
considered testimony from Talo's wife, Jenifer, probation
supervisor Kekauoha,4 and probation officer Shawn Naito (PO
Naito).
On January 17, 2020, Kekauoha submitted and filed a
Second Supplemental Report of Probation Officer (Second
Supplemental Probation Report), which provided, inter alia, that
on September 30, 2019, HPD Sergeant Michelle Phillips (Sgt.
Phillips) called Kekauoha to inform her that Jenifer and one of
their children had "gone to Wahiawa Police Station, requesting
for a probation revocation warrant" for Talo because he was in
possession of a firearm. Jenifer stated she was afraid of Talo,
but she did not want to file a police report.
The Second Supplemental Probation Report further
provided that on September 30, 2019, Kekauoha left Jenifer a
voicemail, and on October 1, 2019, Jenifer spoke with Kekauoha
over the phone, Jenifer confirmed that Talo had a firearm, which
Jenifer believed to be a shotgun, that it was wrapped in a
"lavalava," and Talo had put it in Jenifer's closet. Jenifer had
also reported that Talo had ammunition in his vehicle. The
report stated that Jenifer and one of her children met with
4
Kekauoha testified that she was "the supervisor for the section
that is supervising the defendant, as well as the supervisor for the search
unit with adult client services branch."
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probation officers and confirmed that the firearm continued to be
in the residence and that ammunition was in Talo's vehicle. The
report also provided that the warrantless search was executed on
December 6, 2019, and at the conclusion of the search, HPD
notified Kekauoha that they would arrest Talo on the probation
revocation warrant and gun-related offenses.
At a January 17, 2020 hearing, the Circuit Court denied
the Motion to Revoke Probation to the extent that it was premised
on non-firearm violations and permitted Talo to file a
supplemental memorandum in support of the Motion to Suppress
Evidence.
Talo's supplemental memorandum primarily argued that
the warrantless search of Talo's residence on December 6, 2019,
"was unreasonable notwithstanding the existence of an objectively
valid probationary purpose, because the avowed purpose was in
reality a subterfuge designed to facilitate a criminal
investigation."5 In response, the State argued that the Adult
Probation Department (APD) had reasonable suspicion based on
specific and articulable facts that Talo possessed a firearm and
ammunition. Talo filed a reply memorandum, contending that the
warrantless search was conducted for an improper purpose based on
the APD and HPD "work[ing] in concert to actively create a new
case against [Talo] by undertaking a warrantless search[.]"
5
Talo cited State v. Fields, 67 Haw. 268, 686 P.2d 1379 (1984);
Commonwealth v. Brown, 361 A.2d 846 (Pa. Super. Ct. 1976); Propios, 76 Hawai #i
at 474, 879 P.2d at 1057.
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On January 24, 28, and February 25, 2020, the Circuit
Court held further hearings on the State's Motion to Revoke
Probation and Talo's Motion to Suppress Evidence. The Circuit
Court considered testimony from Detective Lacuata, search and
seizure assistant supervisor Brook Mamizuka (Mamizuka), Kekauoha,
Talo's and Jenifer's son (Son), and Jenifer. At the February 25,
2020 hearing, the Circuit Court orally denied Talo's Motion to
Suppress Evidence. On March 12, 2020, the Circuit Court entered
Findings of Fact, Conclusions of Law, and Order Denying
Defendant's Oral Motion to Suppress Evidence (Order Denying
Motion to Suppress Evidence).
On June 18, 2020, the Circuit Court held a further
hearing on the State's Motion to Revoke Probation and granted the
State's motion based on the firearm and ammunition violations;
the court sentenced Talo to a term of imprisonment of five years.
On June 18, 2020, the Circuit Court entered the Resentencing
Order, sentencing Talo to a term of imprisonment for five years
with credit for time served.
On July 16, 2020, Talo timely filed a notice of appeal.
B. Events Prior to the Warrantless Search
PO Naito testified that he met with Talo on June 29,
2017, to review the temporary probation terms and conditions. PO
Naito stated that he reviewed the official probation terms and
conditions one by one with Talo. PO Naito testified that he
explained the penalty for violating any of the probation
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conditions and that Talo appeared to understand the terms and
conditions. PO Naito signed the form and witnessed Talo signing
and dating the form.
Jenifer testified that she had been married to Talo for
about three years and in a relationship with him for over sixteen
years. Jenifer also testified that she had four biological
children with Talo and two other children that Talo helped raise.
The children were ages 9, 11, 12, 13, 16, and 19 at the time. In
June 2019 and July 2019, Jenifer had filed two separate Petitions
for an Order for Protection against Talo, requesting a Temporary
Restraining Order (TRO) stemming from, inter alia, Talo stealing
Jenifer's airport badge and federal badge, and threatening to
kill her.6 Jenifer's June 2019 petition provided that Talo had
access to firearms and "has friends that have weapons."
Jenifer's July 2019 petition also alleged that Talo "may
own/possess/have access to a weapon," and that "[h]e has family
and friends who has [sic] weapons." Jenifer testified that she
filed them because "for the past year we've been having issues,
marital issues and marital problems, and it's been getting
difficult, so I had to file them on behalf of my –- in order to
save my job." Jenifer testified that she was concerned about
Talo stealing her badges.
6
The Order for Protection provided that Jenifer worked at the
Transportation Security Administration (TSA) airport.
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Jenifer testified that on September 30, 2019, Jenifer
and Son went to the Wahiawa Police Station to ask "what would
happen if my husband, who was on parole, had a [sic] illegal
firearm?" Jenifer said that she asked HPD Sgt. Phillips if
Jenifer would be held responsible for an illegal firearm in her
residence and that her children had mentioned the firearm.
However, Jenifer maintained that it was a hypothetical question,
and at that time, she had not seen the illegal firearm or
ammunition. Jenifer testified that she did not make a report.
Jenifer further testified that PO Naito called her and directed
her to Kekauoha to discuss the issue about the firearm and
ammunition.
Following Jenifer's visit to the police station, Sgt.
Phillips contacted Kekauoha. Kekauoha testified that she asked
Sgt. Phillips to file a police report to document the visit and
Sgt. Phillips completed a report.
Kekauoha testified that she first spoke with Jenifer
over the phone on October 1, 2019, and Jenifer stated that Talo
was in possession of a firearm, which Jenifer believed was a
shotgun. Jenifer testified that she told Kekauoha that she
believed Talo had a firearm in her room at that time. Jenifer
further testified that she told Kekauoha that four of her younger
children saw the firearm in the house, and described it as "one
that they see on top their video games." Jenifer also testified
that Son told her that he had seen a gun in the house, but he did
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not describe it. However, after October, Jenifer testified that
there were "very long pauses in between" speaking to Kekauoha
because Jenifer did not want to talk anymore. Jenifer testified
that she never saw a gun in the house. Kekauoha testified that
she began a probation violation investigation on October 1, 2019,
after she spoke with Sgt. Phillips and Jenifer. Mamizuka
testified that at some point after this, they were looking at
"possibly doing a warrantless search."
Mamizuka testified that she met with Jenifer and Son at
the probation office to verify the facts related to the firearm
and the ammunition. Mamizuka further testified that:
A. Jenifer had described that there was a firearm
in her household. It was in their bedroom closet. Um, it
was behind a purple suitcase and that she wanted it removed
from -- her household and that -- he had been previously
playing with it in front of minors.
Um -- there also was concern -- she had described to
us that -- his temperament, she quite -- she couldn't really
understand because he would go from zero to a hundred in his
temperament. Zero being, you know, very calm, and then a
hundred where it's explosive. That he had broken their door
in their apartment.
Um -- she also described that there was ammunition
that was -- in a ziplock bag in the trunk of his car -- and
that it was in a -- duffle bag.
And -- she also kinda described -- I guess their
interaction and their relationship -- with one another and I
guess that was very concerning to me. She had described
that -- I -- I believe it was a couple days before -- she
had tried to get ready for work and she had put on unifor --
her TSA uniform and he had cut, um -- her uniform up. He
had cut the breast pockets and the inseam of her uniforms.
Um -- there also was -- some text messaging that --
that -- Talo's son had shown us and -- you know, threatening
that the -- that Talo would be taking the children away from
her.
. . . .
Q And you described -- well, you said that
[Jenifer] said that she had seen ammunition in a ziplock,
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stored in a ziplock and then stored in a duffle bag then
stored in the trunk of [Talo]'s car?
A Yes.
Q Was she able to actually describe how that
ammunition looked?
A She did. She said it was red.
Mamizuka testified that she felt Jenifer's life was in
danger after the November 19, 2019 meeting. However, she did not
immediately call the police because the "focus was to remove the
firearm like Miss -– like Jenifer had asked us to do." Mamizuka
testified that, in preparation for the warrantless search,
Kekauoha began "the case agent portion, which is a lot of the
footwork and the paperwork." Mamizuka testified that she came in
"when we're getting or preparing for the search and the
debriefing with the staff," but this was not intertwined with
HPD. Mamizuka explained that the staff briefing involved
teaching the probation office staff how to conduct the search and
what their roles would be in the search. Mamizuka also stated:
So in this case we had explained that myself and two
other probation officers would be transporting [Talo]. So
we would be doing it in a State car. We would go through
that protocol of how to do that and -- because we were doing
it purely -- three of us, the three probation officers, HPD
was not in -- they had told us they would not get involved
in any of the -- transport. They were primarily there --
for security purposes.
Then we would describe to -- the probation officers
that are going along with us how we would be searching,
common areas, and only areas that are occupied by [Talo].
Q Okay. And at this point during the briefing
process, is there any intertwinement between probation's
work and HPD?
A No. We're not making contact with him [sic]
yet.
. . . .
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Q -- you had said that HPD actually said they
would not partic -– what did you say that they would not do,
HPD said they would -- they declined? What --
A Transportation. They would not give [Talo] any
transportation to -- to his home. We would have to do all
of the transportation. So from the Circuit Court office to
Wahiawa.
Kekauoha testified that she believed reasonable
suspicion of a probation violation existed because she had
information from Sgt. Phillips based on Jenifer's visit to the
Wahiawa Police Station, the two Petition[s] for an Order for
Protection, an October 1, 2019 phone call, and the November 19,
2019 meeting. In addition, Kekauoha testified:
Q Describe Jenifer -– just I guess what did
Jenifer say about the firearm and ammunition at that
November 19th meeting?
A She confirmed that the firearm was, um -- in the
residence, in the bedroom, in a closet.
Q So as of November 19th, 2019, Jenifer said,
yes, the firearm is still there.
A Yes.
. . . .
Q And how -- did you ever speak to Jenifer
between -- about the gun and ammunition between November
19th and the December 6th, 2019 search?
A Not directly.
Q Did you speak to her indirectly, like voicemails
--
A We --
Q -– or anything?
A -- we were playing phone tags.
Q Okay. Why did it take -- I guess how -- why did
it take so long between -- if you first learned about the
gun and firearm in mid-October, why did it take until
December 6th to do the search?
A First of all, we had to confirm [Talo]'s
residence. On the documents that we had in the probation,
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um -- file, he didn't put down his apartment number, and an
initial letter was sent to him by [PO Naito].
And we -- based on what he -- [Talo] had written the
last time he wrote down his address, there was no street
number. So the initial appointment letter was sent to the
Ehoeho Avenue address without the apartment number and that
was returned and the postmark indicated that the address is
insufficient.
So subsequent letters were sent, but [Talo] did not
report for those appointments. And subsequently, I found
out from Jenifer that they had lost the mailbox key. So
until she was able to get a mailbox key, we couldn't get
[Talo] into the office.
So he finally reported on I believe it was October
25th. When he first reported.
Q Okay. Did you receive a voicemail from
Jenifer in December indicating whether or not she would be
present at the December 6th search?
A I did. That was on -- that was on December the
3rd. Because I left her a voicemail message on that date,
and then she left a voicemail message after that.
Kekauoha further testified that the purpose of the
warrantless search was to remove the firearm for public safety
purposes and for rehabilitative purposes because it was intended
to ensure Talo was "complying or following the terms and
conditions of probation."
C. The December 6, 2019 Warrantless Search
When Talo reported for his probation office appointment
on December 6, 2019, probation officers transported Talo back to
his residence in a state vehicle. Talo was not handcuffed or
under arrest at that time. PO Naito testified that he was a
member of the search team and arrived at Talo's residence
"between maybe 9 a.m., 9 to 10 a.m. on December 6," and HPD and
Son were at the residence. Approximately ten people were at
Talo's house at the time of the search, including five probation
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officers and five HPD officers. PO Naito testified that the
search started in the living room and only one bedroom was
searched. He also stated that Talo and HPD stayed in the living
room while the search was being conducted.
Mamizuka testified that she asked Talo where his room
was, and Talo told her that he slept in the living room, but his
clothes were in the room next to the living room. Subsequently,
Mamizuka found the gun in the bedroom where Talo told her his
clothes were located. Mamizuka stated that she lifted the
mattress and "between the mattress and the box spring was the
shotgun wrapped in a turquoise lavalava." Mamizuka stated that
she then saw the ammunition in a clothes hamper and only the
probation officers touched and looked for the firearm and
ammunition. Mamizuka testified the HPD officers were not near
the probation officers and were in the living room or outside,
but not inside the bedroom. Mamizuka further testified that the
probation staff searched Talo's car. Mamizuka testified that HPD
took the firearm and ammunition to store because probation was
not trained to handle those items. Mamizuka's testimony provided
that HPD arrested Talo, but probation staff did not "intertwine"
with HPD after December 6, 2019.
PO Naito stated that he left the Talo residence with
the other probation officers around 2 p.m., but that the SWAT
team was still at the residence. PO Naito also testified that
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the SWAT team was in the residence while the search was going on,
and once the gun was recovered, it was given to the SWAT team.
Detective Lacuata testified that on December 6, 2019,
he was assigned to a criminal case investigation of Talo
regarding illegal ownership of a firearm. However, he also
testified that he was instructed to halt any criminal
investigation stemming from the probation search arrest, and his
work on the case terminated, on December 6, 2019. Detective
Lacuata testified that his investigation was "pretty much
closed," but that he had yet to submit a closing report. He
testified that although his criminal investigation was halted,
his investigation then focused on confirming the probation
violation. Detective Lacuata had conducted an audio-recorded
interview with Jenifer and Son, but its purpose was to confirm
certain information related to the probation violation.
Detective Lacuata also called Son on December 7, 2019,
but the call was to provide him with instructions to pick up Talo
from the police station. He also spoke with Talo on December 7,
2019, to go over an HPD-81 form. Detective Lacuata testified
that this was part of his administrative report for closing, and
that even if had Talo confessed, there would still have been no
criminal case against Talo. On January 9, 2020, Detective
Lacuata informed Kekauoha that the investigation was still
pending, but only because certain results such as test-fires and
fingerprint analyses were still pending. The State represented
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on the record that Talo would not be subject to criminal
prosecution stemming from the firearm and ammunition seized in
the December 6, 2019 search.
II. POINTS OF ERROR
Talo raises two points of error on appeal, challenging
Findings of Facts (FOFs) 1, 2, 21, 23, 24, 25, 28, 32, 33, 34,
35, 36, 37, and 38, and Conclusions of Law (COLs) 5 and 6, and
arguing that the Circuit Court: (1) erred in denying Talo's
Motion to Suppress Evidence; and (2) abused its discretion in
sentencing Talo to an open term of imprisonment of five years.
III. APPLICABLE STANDARDS OF REVIEW
Appellate courts "review the circuit court's ruling on
a motion to suppress de novo to determine whether the ruling was
'right' or 'wrong.'" State v. Keanaaina, SCWC-XX-XXXXXXX, 2022
WL 854476, at *5 (Haw. Mar. 22, 2022) (quoting State v. Kauhi, 86
Hawai#i 195, 197, 948 P.2d 1036, 1038 (1997)).
"[A] sentencing judge generally has broad discretion in
imposing a sentence." State v. Koch, 107 Hawai#i 215, 219, 112
P.3d 69, 73 (2005) (citing State v. Gaylord, 78 Hawai#i 127, 143-
44, 890 P.2d 1167, 1183-84 (1995)). "The applicable standard of
review for sentencing or resentencing matters is whether the
court committed plain and manifest abuse of discretion in its
decision." Id. at 219-20, 112 P.3d at 73-74 (citation omitted).
"[W]hether a particular search is improper 'is a
question of fact subject to the clearly erroneous standard of
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review.'" Propios, 76 Hawai#i at 481, 879 P.2d at 1064 (quoting
U.S. v. Consuelo-Gonzalez, 521 F.2d 259, 267 (9th Cir. 1975)).
An appellate court reviews a "circuit court's findings of fact
under a 'clearly erroneous standard.'" State v. Rodrigues, 145
Hawai#i 487, 494, 454 P.3d 428, 435 (2019). A trial court's FOF
"is clearly erroneous when (1) the record lacks substantial
evidence to support the finding, or (2) despite substantial
evidence in support of the finding, the appellate court is
nonetheless left with a definite and firm conviction that a
mistake has been made." State v. Quiday, 141 Hawai#i 116, 121,
405 P.3d 552, 557 (2017) (quoting State v. Eleneki, 92 Hawai#i
562, 564, 993 P.2d 1191, 1193 (2000)). However, "an appellate
court will not pass issues dependent upon credibility of
witnesses and the weight of the evidence; this is the province of
the trial judge." State v. Hicks, 113 Hawai#i 60, 70, 148 P.3d
493, 503 (2006) (quoting State v. St. Clair, 101 Hawai#i 280,
287, 67 P.3d 779, 786 (2003)).
Conclusions of law are reviewed de novo. Rodrigues,
145 Hawai#i at 494, 454 P.3d at 435. "A conclusion of law that
is supported by the trial court's findings of fact and that
reflects an application of the correct rule of law will not be
overturned." Quiday, 141 Hawai#i at 122, 405 P.3d at 558
(citation omitted).
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IV. DISCUSSION
A. The Motion to Suppress Evidence
Talo challenges various FOFs and argues that the
Circuit Court erred in denying Talo's Motion to Suppress Evidence
because the warrantless search of Talo's residence was
unreasonable.
The Hawai#i Supreme Court has described a warrantless
search as "a creature of judicial ingenuity presumably founded on
the discretion vested in the sentencing court to saddle a
probationer with any condition 'reasonably related to [his]
rehabilitation . . . and not unduly restrictive of his liberty or
incompatible with his freedom or conscience.'" Fields, 67 Haw.
at 276, 686 P.2d at 1386 (citation omitted). Thus, a probation
condition is valid "to the extent that it may serve the ends of
rehabilitation." Id. at 277-78, 686 P.2d at 1386-87. A
probation officer's special role as a "social therapist in an
authoritative setting" permits the probation officer to conduct a
warrantless search of the probationer's person, property, and
place of residence because it "serves a legitimate correctional
purpose" and "may contribute to [] rehabilitation." Id. at 280,
686 P.2d at 1388-89 (citations omitted).
In Fields, the supreme court explained that the
"desired rehabilitation" of a probationer depends upon the
probation officer's "ability to gain 'a thorough understanding of
the probationer and his environment, including his personal
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habits, his relationships with other persons, and what he is
doing, both at home and outside it.'" Id. at 280, 686 P.2d at
1389 (brackets omitted) (quoting Latta v. Fitzharris, 521 F.2d
246, 249 (9th Cir. 1975). However, a warrantless search must
nevertheless be reasonable, such that it is supported by a
"reasonable suspicion supportable by specific and articulable
facts." Id. at 283, 686 P.2d at 1390.
The supreme court has determined that:
Although probationers are subject to restrictions to
which the average person is not subjected, a probationer
still maintains the right to a significant degree of
privacy. In State v. Fields, 67 Haw. 268, 686 P.2d 1379(1984), this court held that a probationer, like a parolee,
may be subjected to warrantless searches by her probation
officer. Id. at 279-81, 686 P.2d at 1388-89. The
warrantless search must be reasonable, however, even if
carried out as a condition of probation. To be reasonable,
the facts of each case must show that the search was
justified by a reasonable suspicion supported by specific
and articulable facts that probation was being violated.
Id. at 281, 283, 686 P.2d at 1389, 1390.
Because this court has determined that reasonable
warrantless searches of probationers are constitutional, the
only question remaining is whether the search of
[defendant's] residence was reasonable. The general rule is
that
[warrantless] search[es] carr[y] an initial
presumption of unreasonableness. To overcome this
presumption, the State must show that the facts of the
case justified the . . . search[] without a warrant
and that the search itself was no broader than
necessary to satisfy the need which legitimized
departure from the warrant requirement in the first
place.
State v. Kaluna, 55 Haw. 361, 363, 520 P.2d 51, 55 (1974)
(citations omitted and emphasis added).
Propios, 76 Hawai#i at 477, 879 P.2d at 1060.
Here, as in Propios, "the question of reasonableness
centers on the participation of the police in the search." Id.Generally, "police participation in a warrantless residential
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search of a parolee has been deemed reasonable so long as the
underlying search was conducted for a supervisory purpose, and
not as a subterfuge for subsequent criminal prosecution." Id. at
478, 879 P.2d at 1061. Accordingly, police officers "may
participate in [a warrantless search] provided that the search is
for legitimate probationary purposes and not designed as a ruse
to facilitate the gathering of evidence for prosecution of new
criminal acts." Id. at 485, 879 P.2d at 1068. Thus, "a
warrantless probationary search premised upon an initially valid
rehabilitative purpose may nonetheless become tainted by
subsequent abuse of that privilege." Id. at 480, 879 P.2d at
1063.
In Propios, the search of a probationer's residence was
unreasonable because "notwithstanding the existence of an
objectively valid probationary purpose, . . . the avowed purpose
was in reality a subterfuge designed to facilitate a criminal
investigation." Id. The supreme court noted that the
prosecution had demonstrated specific and articulable facts
giving rise to a reasonable suspicion sufficient to support a
warrantless search because the probationer admitted to her
probation officer that she had used illegal drugs and her
boyfriend was a drug dealer. Id. The supreme court also
determined that the probation officers acted reasonably when they
contacted police "to obtain protection and assistance" based on
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The supreme court nevertheless concluded that the
warrantless search was unreasonable because the "police 'took
over' the search nominally conducted by the APD officers in order
to gather evidence for use in a criminal prosecution." Id. at
480-481, 879 P.2d at 1063-64. "The search was improper not
because of mere police participation, but because it was actuated
by an intent to pursue future criminal prosecution rather than a
desire to advance otherwise valid probationary purposes." Id. at
487, 879 P.2d at 1070. The testimony in Propios revealed that a
police officer was given permission to go ahead with a
warrantless search, and the police played a "more active part in
the search." Id. at 482, 879 P.2d at 1065. Notably, the
testimony in Propios revealed that a co-defendant led a police
officer to a bedroom alone where drugs were found, and the
supreme court stated that "the apparent fact that [a police
officer] and [co-defendant] were alone in the bedroom for
unexplained reasons raises a question as to whether [the police
officer] somehow influenced [co-defendant's] 'voluntary'
revelation." Id. at 485, 879 P.2d at 1068. Further, in Propios
a police officer confirmed that he accompanied the co-defendant
into the co-defendant's bedroom to conduct an investigation from
a police standpoint. Id. Thus, the supreme court concluded that
probation officers and police officers "worked in concert to
actively create a new case against" the defendant. Id. at 487,
879 P.2d at 1070. For these reasons, the supreme court affirmed
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the order granting the defendant's motion to suppress the
evidence obtained as a result of the warrantless search. Id.Here, unlike in Propios, there is no indication that
the HPD and APD worked in concert together to gather evidence for
a new criminal prosecution, and HPD did not "take over" the
search at any time. Both Mamizuka and Kekauoha testified that
the purpose of the warrantless search was to investigate a
probation violation involving possession of a firearm and
ammunition. APD planned and executed the search while HPD
provided security and to recover and store any firearms or
ammunition. HPD declined to even provide transportation for
Talo. Mamizuka and Kekauoha, not HPD, prepared the necessary
paperwork and the logistics of the search. Although a criminal
investigation was briefly initiated against Talo, Detective
Lacuata testified that his investigation started and ended on
December 6, 2019.
Based on Detective Lacuata's testimony, as well as the
other evidence presented at the hearings on the Motion to
Suppress Evidence and Motion to Revoke Probation, the Circuit
Court found and concluded that "[t]he search was not a subterfuge
or a ruse for criminal prosecution or an HPD investigation."
On appeal, Talo does not challenge the Circuit Court's
FOF 30 determining that "[t]he probation officers had specific
and articulable facts to support reasonable suspicion to conduct
a warrantless search of [Talo's] home and car on December 6,
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2019." Nor does Talo challenge FOF 31 providing that "[t]he
search was constitutional, supported by reasonable suspicion and
the specific and articulable facts set forth above." Instead,
Talo challenges FOF 1 as clearly erroneous purportedly to the
extent that the Circuit Court found the testimonies credible.
FOF 1 provides:
1. The Court heard testimony from [PO Naito], Probation
Supervisor [Mamizuka], and Probation Supervisor
[Kekauoha]. The Court found their testimonies to be
credible.
However, "it is well-settled that an appellate court
will not pass upon issues dependent upon the credibility of
witnesses and the weight of the evidence; this is the province of
the trial judge." Propios, 76 Hawai#i at 482, 879 P.2d at 1065(citation and internal quotation marks omitted). FOF 1 is not
clearly erroneous.
Talo also challenges FOF 2, which provides:
2. Probation Supervisors Mamizuka and Kekauoha are
specifically the heads of the [APD's] Search Unit, and
they investigated, planned and executed the
warrantless search at issue herein.
Talo argues that FOF 2 is clearly erroneous because the
evidence demonstrated that HPD was involved in the search,
including a post-search investigation conducted by Detective
Lacuata. This argument is without merit. Kekauoha testified
that she was a probation supervisor "for the section that is
supervising [Talo], as well as the supervisor for the search unit
with adult client services branch." Mamizuka testified that she
was a PSI intake section administrator as well as "the search and
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seizure assistant supervisor." Mamizuka also testified that she
and Kekauoha were "primarily assigned to do the warrantless
search and seizure[.]" Jenifer testified that Kekauoha was in
charge of probation. Mamizuka testified that Kekauoha "does the
case agent portion, which is a lot of the footwork and the
paperwork." Mamizuka also testified that she came in to
"prepar[e] for the search and the debriefing with the staff" and
that this work was not intertwined with HPD in any way. Kekauoha
stated that she planned the warrantless search. Thus, the record
supports FOF 2, and it is not clearly erroneous.
Talo challenges FOFs 21, 23, 24 and 25, which state:
21. There was no unreasonable delay by probation officers
between October and November, 2019, leading up to the
December 6, 2019 search.
23. During the time frame of October and November, the
probation officers also needed to have [Talo] confirm
his exact address by providing the apartment number
for the #Eho#eho Avenue residence.
24. During the October - November, 2019 timeframe, [Talo]
missed the October 10 and October 17 probation
appointments. He came in on October 25, 2019 for his
appointment. At that time, he wrote his exact address
and probation officers were able to confirm the
apartment number.
25. [Talo] reported again on November 8, 2019, and the
probation officer reconfirmed that [Talo]'s address
was the same apartment - 224.
Talo also challenges FOFs 28, 32, and 33:
28. The time frame to finalize the planning and execution
of the search - approximately seventeen days - was not
unreasonable under these specific factual
circumstances. The probation officers were methodical
in their follow-up investigation.
32. The search was properly conducted for probation
purposes, for public safety, and the rehabilitative
goals of probation.
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33. The search was not a subterfuge or a ruse for criminal
prosecution or an HPD investigation.
Talo argues that the delay between September 30, 2019,
and December 6, 2019, was unreasonable. Talo submits that "[i]f
the purpose of the search was truly to enforce terms and
conditions of probation and to advance the goal of
rehabilitation, the search could have been conducted much
sooner." Talo further argues that "[e]ven if it was necessary
for Talo to personally confirm his address, after he did on
October 25, 2019, there was no justification for delaying the
search until December 6, 2019." Talo contends that these FOFs
are clearly erroneous because "the investigation by the probation
officers was inordinately and unnecessarily long because the
search was not conducted for a probationary purpose but as a ruse
to conduct a warrantless search for criminal charges."
However, Talo does not challenge the Circuit Court's
FOF 22 or FOF 29, which provide:
22. Probation Supervisor Kekauoha had much difficulty
maintaining consistent contact with [Jenifer] during
the period of October and November. Probation
Supervisor described her efforts as having "phone tag"
with [Jenifer].
29. The steps they took and the follow-up they did from
the time of the first report of a possible firearm
possession by [Sgt. Phillips] on September 30, 2019 up
to the search that was executed on December 6, 2019
were reasonable and appropriate under the
circumstances.
In addition, the record includes, inter alia, the
following exchange between Talo's counsel and Kekauoha:
Q Okay. So on direct you were asked, you know,
why did it take so long for you guys to do a search of
[Talo]'s residence when you initially found out about [Talo]
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possibly possessing a firearm on September 30th. Do you
remember your answer?
A What I needed to do is I needed to make sure
that I had enough information and also I wanted to be sure
that we could confirm [Talo]'s address. So he needed to
indicate that apartment number. And I needed -– I wanted
to talk to Jenifer in person.
Kekauoha testified that Talo did not confirm his full
address until October 25th. The record supports that Talo failed
to report to his probation officer on October 10 and October 17,
2019, but that he reported on October 25, 2019, and confirmed his
address at that time. Additionally, Mamizuka testified that she
met with Jenifer and Son in person at the probation office on
November 19, 2019. Mamizuka testified that the purpose of that
meeting was "to verify any facts that [Jenifer] might be -–
discussing about the firearm or the ammunition." Mamizuka stated
that during this November 19, 2019 meeting, Jenifer described the
firearm in her household, the location of the firearm, and
concerns about Talo's temperament. Mamizuka testified that
Jenifer "looked physically okay," but she felt Jenifer's life was
in danger after the November 19, 2019 meeting. Mamizuka did not
contact the police or notify anyone about her concerns regarding
Jenifer's safety because the focus was removing the firearm and
ammunition. Mamizuka noted that it "might take a month, a month
and a half" to coordinate and prepare for a warrantless search of
a home where the subject is a gun.
We conclude that FOFs 21, 23, 24, 25, and 28 are
supported by substantial evidence in the record, including
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unchallenged FOFs 22 and 29, and the Circuit Court did not
clearly err in finding that the length of time it took to perform
the warrantless search was not unreasonable.
Regarding FOFs 32 and 33, Mamizuka testified that "the
focus was just removing the firearm and the ammunition from the
household" and on investigating a probation violation. Kekauoha
also testified that the purpose of the warrantless search was to
address the suspected probation violation, to recover evidence of
a probation violation, and to remove the firearm for public
safety reasons. Kekauoha testified that the warrantless search
was rehabilitative because it was intended to ensure Talo was
complying with the terms and conditions of probation, and
Kekauoha had received information that Talo was violating the
terms and conditions of his probation.
Mamizuka also testified that HPD was involved in the
warrantless search for only security purposes, and HPD told APD
that they would not get involved in transporting Talo in advance
of the search. Mamizuka testified that, in addition to providing
security, HPD's presence was necessary to assist in removing and
storing any recovered ammunition or firearm because the probation
officers were not trained to handle firearms and the probation
office had no room to store ammunition or firearms. Mamizuka
testified that only probation officers conducted the search for
the firearm and ammunition, and that HPD officers did not
participate in the search and were not near the probation
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officers during the warrantless search of the bedroom. She also
testified that Talo was arrested by HPD because probation
officers rely on sheriffs and the police to execute their arrests
on warrants. In addition, Detective Lacuata testified that there
would be no criminal prosecution against Talo, and the case was
not conferred to the prosecutor's office any time on or after
December 6, 2019. We conclude that, notwithstanding some
evidence that could support an alternative analysis, evidence of
sufficient quality and probative value supports the Circuit
Court's findings that the purpose of the warrantless search was
for probation purposes and the search was not a ruse for criminal
prosecution. Therefore, FOFs 32 and 33 are not clearly
erroneous.
Talo further challenges the following FOFs:
34. [Detective Lacuata] did not complete his criminal
investigation and such investigation was stopped when
he was told that there would be no conferral with the
prosecutor's office. "No conferral" meant that the
case was not going to be prosecuted by the
prosecutor's office.
35. During the course of these proceedings, the State,
through the prosecutor in this case, has stated on
record that [Talo] will not be subject to criminal
prosecution based on the conduct that is the basis for
this probation violation. Therefore, the State is
judicially estopped from subjecting [Talo] to any
future firearm or ammunition possession prosecution in
the state court.
36. The purpose of the search defined by Probation was to
investigate the probation violation.
37. The evidence shows that the investigation leading up
to the search was conducted by the [APD]. The
debriefing of probation staff participating in the
search was conducted by the [APD]. The parameters and
explanation of the search were crafted by the [APD].
On the day of the search, the search was directed and
executed by probation supervisors and officers, not
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HPD. The discovery and the photographing of the
evidence was also conducted by probation and not HPD.
38. HPD's presence was requested by the [APD] for security
purposes only.
Talo argues that these FOFs "are clearly erroneous to
the extent that they find that the primary purpose of the
investigation was probationary not to conduct a warrantless
search for criminal prosecution." We conclude that these FOFs
are not clearly erroneous because there is substantial evidence
in the record to support them. Detective Lacuata testified that
Talo was in custody following his arrest after the execution of
the warrantless probation search, but Talo's case was "not
conferred" to the prosecutor's office. In other words, Talo was
not going to be charged with new violations. Detective Lacuata
testified that on December 6, 2019, he was instructed to stop any
further investigation of potential criminal prosecution stemming
from the warrantless search of Talo's residence. While Detective
Lacuata had "started a little bit of interviewing," including
recorded interviews with Jenifer and Son, Detective Lacuata
explained that the interviews were to establish that the
recovered firearms were operational and whether the ammunition
was real.7 Detective Lacuata testified that he was assigned a
7
Detective Lacuata also testified that he ran a serial number check
from the serial number of the firearm, and that Talo was not the owner of the
recovered firearm. Detective Lacuata further testified that he called Son on
December 7, 2019, to explain how to pick up Talo from the police station, and
not to interview him.
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criminal case regarding illegal ownership of a firearm but that
his investigation began and ended on December 6, 2019.8
Further, the State represented multiple times that Talo
would not be subject to criminal prosecution stemming from the
warrantless search. As previously discussed, both Mamizuka and
Kekauoha testified that the purpose of the search was to
investigate a probation violation. The testimony included that
Kekauoha initiated the warrantless search. Kekauoha handled the
paperwork, and Mamizuka came in to prepare for the search and
debrief with the staff. There was no intertwinement or contact
with HPD. Only the probation officers would be transporting Talo
to the search, and HPD would be involved in the warrantless
search only for security purposes. The search unit was made up
of only probation officers, and HPD officers were "on the outside
or in the living room" while the probation officers were
conducting the search. Probation officers Jessica Ayers and Greg
Uwono discovered the ammunition, and Greg Uwono, not HPD,
searched Talo. Mamizuka discovered the firearm "between the
mattress and the box spring" wrapped in a lavalava. Probation
officers recovered men's shorts and a man's shirt as evidence.
Mamizuka processed the evidence and prepared and signed the
evidence report, although the firearm and ammunition were handled
by HPD after discovery. Kekauoha also prepared the warrantless
8
Detective Lacuata testified that he called Talo on December 7,
2019, to administratively close the case, including informing Talo of certain
constitutional rights.
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search report, which was submitted to HPD, and which included a
statement of receipt of property, a diagram of Talo's residence,
a diagram of the bedroom, an evidence report, and a photographic
report. Thus, the Circuit Court did not clearly err in adopting
these FOFs.
Lastly, Talo challenged COLs 5 and 6, providing:
5. The search in this case was not a subterfuge nor a
cover-up for a criminal investigation by the police.
No criminal investigation based on the firearm and
ammunition recovery has been completed, and no
prosecution will be brought in this case.
6. Under HRS § 706-624(2) and § 706-606(2), discretionary
probation conditions may be imposed if they are
reasonably related and necessary to the HRS § 706-606
sentencing factors. In this case, the warrantless
search was properly conducted for legitimate probation
purposes, for protection of the public, to deter
future criminal conduct, and to further the
rehabilitative goals of probation.
Talo argues that these COLs are wrong because "the true
purpose of the search in this case was to conduct a warrantless
search for purposes of criminal prosecution, not probationary
purposes. The fact that the prosecution was ultimately halted
did not change the initial character of the search."
"The purpose of the search, not the physical presence
of a parole agent, is the vital element." Propios, 76 Hawai#i at
480, 879 P.2d at 1063. Here, the Circuit Court's findings and
the supporting testimony established that the purpose of the
search was to recover evidence of a probation violation, to
remove the firearm and ammunition from the residence, to secure
the firearm and ammunition for the safety of the public, as well
as for the rehabilitative purpose of investigating compliance
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with the terms and conditions of probation. Talo does not point
to any place in the record where, prior to the warrantless search
on December 6, 2019, HPD had any meaningful involvement.
As discussed in Propios, it is reasonable for police to
"aid and protect[]" probation officers during a warrantless
search. 76 Hawai#i at 480, 879 P.2d at 1063. The record in this
case is consistent with that proposition.
In Fields, the supreme court found "no difficulty in
finding the necessary connection between such searches and the
rehabilitation" of a probationer where the probation officer had
been "expressly authorized" to search for illegal drugs and the
probationer had a "known proclivity" for illicit drugs. Fields,
67 Haw. at 280, 686 P.2d at 1389. Here, Talo was prohibited from
possessing or owning any firearms or ammunition, and was fully
informed of that prohibition. Kekauoha received information that
Talo possessed a firearm and ammunition. Based on that
information, probation officers searched Talo's residence.
We conclude that COLs 5 and 6 are not wrong.
B. Talo's Resentencing
Talo also argues – assuming arguendo, that the Circuit
Court did not err in denying Talo's Motion to Suppress Evidence –
that the Circuit Court abused its discretion in re-sentencing
Talo to an open five-year term of incarceration. Talo contends
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that based on the factors set forth in HRS §§ 706-606 (2014)9 and
706-621 (2014)10, the Circuit Court abused its discretion in
9
HRS § 706-606 provides:
§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.
10
HRS § 706-621 provides:
§ 706-621 Factors to be considered in imposing a term
of probation. The court, in determining whether to impose a
term of probation, shall consider:
(1) The factors set forth in section 706-606 to the
extent that they are applicable;
(2) The following factors, to be accorded weight in
favor of withholding a sentence of imprisonment:
(a) The defendant's criminal conduct neither
caused nor threatened serious harm;
(b) The defendant acted under a strong
provocation;
(c) There were substantial grounds tending to
excuse or justify the defendant's criminal
conduct, though failing to establish a
defense;
(d) The victim of the defendant's criminal
conduct induced or facilitated its
(continued...)
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sentencing Talo to a five-year term of incarceration instead of
re-sentencing him to probation. Talo points to his argument
before the Circuit Court, including that Talo had not been
arrested since he was put on probation in 2017, his character and
attitude supported probation, his help in raising the six
children allowed his wife to pursue a career and she would suffer
from his going back to prison, and Talo was not a danger to the
community or his family.
The supreme court has explained that "[t]he weight to
be given the factors set forth in HRS § 706-606 in imposing
sentence is a matter generally left to the discretion of the
sentencing court, taking into consideration the circumstances of
each case." State v. Kong, 131 Hawai#i 94, 101, 315 P.3d 720,
727 (2013) (citation omitted). A sentencing court "is not
required to articulate and explain its conclusions with respect
10
(...continued)
commission;
(e) The defendant has no history of prior
delinquency or criminal activity or has
led a law-abiding life for a substantial
period of time before the commission of
the present crime;
(f) The defendant's criminal conduct was the
result of circumstances unlikely to recur;
(g) The character and attitudes of the
defendant indicate that the defendant is
unlikely to commit another crime;
(h) The defendant is particularly likely to
respond affirmatively to a program of
restitution or a probationary program or
both;
(i) The imprisonment of the defendant would
entail excessive hardship to the defendant
or the defendant's dependents; and
(j) The expedited sentencing program set forth
in section 706-606.3, if the defendant has
qualified for that sentencing program.
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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." Lewi v. State, 145 Hawai#i 333, 350-51, 452 P.3d
330, 347-48 (2019) (citation, footnote, and internal quotation
marks omitted). In considering whether to impose a sentence of
probation pursuant to HRS § 706-621, a sentencing court is only
required to consider the HRS § 706-606 factors that are
applicable. State v. Rauch, 94 Hawai#i 315, 328, 13 P.3d 324,
337 (2000).
Here, the record reflects that the Circuit Court
properly considered the factors in HRS § 706-621 and HRS § 706-
606 when re-sentencing Talo, including the nature and
circumstances of the offense and Talo's history and
characteristics. The State noted public safety concerns, as well
as how Talo's actions affected his family.
When re-sentencing Talo, the Circuit Court explained:
In imposing a sentence and resentencing, the court has
to follow the criteria, and the court is guided by criteria
in these two statutes: 706-621, that requires that the
court to weigh and consider reasons witholding sentence of
imprisonment versus imposing a sentencing of imprisonment,
and I also have to weigh the general sentencing factors
under 706-606.
These factors include that the court has to look at
the nature and circumstance of the offense and the history
and the characteristics of the defendant. When I look at
those factors and I look at the underlying offense, which is
assault in the second degree, it was a very violent assault.
And the court's determination is that this underlying
offense, while there was compliance on probation, there was
a material and inexcusable violation of probation of being
in possession of a shotgun and ammunition.
. . . .
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[T]his probation violation and the court's
determination is that the nature and circumstances of this
particular probation violation are serious and concerning.
And while [Talo] did comply with the correctional treatment
ordered by probation, the court finds that [Talo's]
character and attitude as evidenced by the nature of these
particular violations, which include the illegal possession
of a firearm and ammunition, show an egregious disregard for
the law and court orders. And the nature of this probation
violation in combination with the felony assault conviction
do militate in favor of a prison term.
The court cannot conclude that [Talo] is unlikely to
commit another crime where the probation violation conduct
would constitute two Class B felonies if they had been
charged. The sentence must reflect the seriousness of the
offenses and the probation violation.
We conclude that the record reflects that the Circuit
Court adequately considered the factors in HRS §§ 706-606 and
706-621, and the Circuit Court did not abuse its discretion in
re-sentencing Talo to a five-year term of imprisonment.
V. CONCLUSION
For these reasons, the Circuit Court's June 18, 2020
Resentencing Order is affirmed.
DATED: Honolulu, Hawai#i, May 20, 2022,
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Jon N. Ikenaga,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Steven S. Alm, /s/ James H. Ashford
Prosecuting Attorney, Circuit Court Judge
for Plaintiff-Appellee.
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