State v. Gomes

177 P.3d 928, 117 Haw. 218, 2008 Haw. LEXIS 39
CourtHawaii Supreme Court
DecidedFebruary 20, 2008
Docket27906
StatusPublished
Cited by18 cases

This text of 177 P.3d 928 (State v. Gomes) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gomes, 177 P.3d 928, 117 Haw. 218, 2008 Haw. LEXIS 39 (haw 2008).

Opinions

Opinion of the Court by

ACOBA, J.

Petitioner/Defendant-Appellant Keith Daniels Gomes (Petitioner) filed an application for writ of certiorari on October 31, 2007, seeking review of the judgment of the Intermediate Court of Appeals (the ICA) filed on August 2, 2007, pursuant to its Summary Disposition Order (SDO) filed on July 11, 2007,1 affirming the March 28, 2006 judgment of the first circuit court2 (the court) in Cr. No. 05-1-1181,3 convicting Petitioner of bribery of a Witness, Hawaii Revised Statutes (HRS) § 710-1070 (1993), and sentencing him to five years’ imprisonment.4 We hold that the ICA erred in affirming the court’s denial of Petitioner’s motions for judgment of acquittal of the charge of bribery under HRS § 710—1070(l)(b) because even in viewing the evidence in the light most favorable to the prosecution, substantial evidence did not exist to support the jury’s finding that Petitioner offered money to a potential witness with the intent to induce her to avoid service of process.

I.

HRS § 710-1070 states in relevant part, as follows:

Bribery of or by a witness. (1) A person commits the offense of bribing a witness if he confers, or offers or agrees to confer, directly or indirectly, any benefit upon a witness or a person he believes is about to be called as a witness in any official proceeding with intent to:
(a) Influence the testimony of that person;
(b) Induce that person to avoid legal process summoning him to testify; or
(c) Induce that person to absent himself from an official proceeding to which he has been legally summoned.

(Emphases added.) The indictment in this case charged a violation of HRS § 710-1070(l)(b) and read as follows:

The Grand Jury Charges:

On or about the 15th day of March, 2005, to and including the 17th day of April, 2005, in the City and County of Honolulu, State of Hawaii, [Petitioner], believing Leah Zook [ (Zook) ] was to be called as a witness in an official proceeding, did confer, offer, or agree to confer, directly or indirectly, a benefit upon said [Zook], with intent to induce [Zook] to avoid legal process summoning her to testify, thereby committing the offense of Bribery of a Witness in violation of Section 710-1070(1) (b) of the [HRS],

(Emphasis added.)

A.

The relevant facts are taken from the record.5 As best as can be reconstructed, the sequence of events as reiterated in the Application and supplemented by the appellate briefs follow.

[Zook] moved to Hawaii from Minnesota in December 1999 and moved back to [221]*221Minnesota in June 2005. In February 2005, she was living in the bottom story of a Lanikai home overlooking Mokolea Drive with her young son and her close friend, Dana Fannes (“Fannes”). On February 28, 2005, Zook and Fannes witnessed a fight on the street below her lanai .... [6]
Soon after the incident, Zook told her good friend, Kathy Schulte (“Schulte”), about the fight she had witnessed.

(Emphases added.) According to Respondent, Schulte testified that Zook told her about the incident “within [approximately] turn weeks[.]” (Brackets in original.) Schulte also testified that on occasion, Zook “would tell me how she was involved and how she was a witness in a trial” arising from the incident she had witnessed. As Petitioner relates from the record,

Schulte confirmed that within a few days up to two weeks after the incident, her good friend Zook told her about the fight she had witnessed. Zook also periodically updated Schulte on her status as a witness in that case. Schulte learned from her then-boyfiiend, [William Nolta (Nolta) ], that his good friend, [Petitioner], and [co-defendant Lance Larsen AhQuin (Ah-Quin) ] were defendants in a February 28 assault case.

(Emphasis added.) AhQuin was arrested on February 28, 2005. Petitioner testified on cross-examination that he knew AhQuin had been arrested but claimed that he did not know “the degrees [of assault] or what they meant” or that AhQuin “was supposed to go to court soon after he was arrested[.]”

The Application recounts from the record that “Zook was subpoenaed to testify at a March 31, 2005 preliminary hearing on the [assault] case.” It is not clear from the Application, the briefs, or the Record on Appeal when this subpoena was issued or served. However, Zook did not actually testify on March 31, 2005. Apparently, according to Respondent, Zook was not required to appear on March 31, 2005 because the preliminary hearing was “continued from March 31st to a month down the road.”

The record verifiés the following, as the Application states:

Near the end of March 2005, Schulte was with Nolta at [T]he O Lounge when they ran into [Petitioner], Out of curiosity, Schulte struck up a conversation with [Petitioner] to find out whether the incident for which Zook was now a trial witness ivas the same assault with which [Petitioner] ivas charged. Schulte testified that when she and [Petitioner] concluded that it was:
[Petitioner] ... asked [Schulte] to tell [Zook] not to show up to court and testify.... He was very adamant on asking me if I could please tell her not to come to comí, that possibly if she didn’t show up that the trial would be thrown out or maybe the charges against him would be dropped.
When Schulte expressed her doubt that Zook could be convinced not to appear in court, Schulte described [Petitioner’s] reaction: “He didn’t really respond. He was just, you know, if you could tell her not to show up.... ” On the drive home, Schulte reviewed with Nolta the discussion she had had with [Petitioner],

(Emphases added.) Nolta confirmed that he encountered Petitioner “at [T]he O Lounge sometime in March, mid-March or• sometime in April ” of 2005 on “either a Friday or a Saturday.” (Emphasis added.) Nolta claimed that before this encounter, Petitioner had not mentioned being involved in a fight in Lanikai.

According to Nolta, he introduced Schulte to Petitioner and as “a little icebreaker[,]” Schulte mentioned that her friend had “witnessed something in Lanikai[.]” Nolta related that Schulte and Petitioner “put two and two together” and determined that Zook had seen the fight in which Petitioner was involved. Nolta testified that Schulte did not tell him that Petitioner had asked her to do something for him. However, he did state that as they were leaving.The O Lounge, he [222]*222observed Schulte tell Petitioner, “I’ll take care of it,” and pat him on the back.

According to the record, as stated by Petitioner,

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Cite This Page — Counsel Stack

Bluebook (online)
177 P.3d 928, 117 Haw. 218, 2008 Haw. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gomes-haw-2008.