NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-NOV-2023 07:51 AM Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v. JAMES GREEN, JR., Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Nakasone and Guidry, JJ.)
Defendant-Appellant James Green, Jr. (Green) appeals
from the Judgment of Conviction and Sentence (Judgment), entered
by the Circuit Court of the First Circuit on September 13, 2022.1
Upon careful review of the record and the briefs submitted by
the parties, and having given due consideration to the arguments
advanced and the issues raised, we affirm without prejudice to
1 The Honorable Paul B.K. Wong presided. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Green's filing of a Hawai‘i Rules of Penal Procedure (HRPP)
Rule 40 petition, and remand for further proceedings.
I. Background
On April 14, 2021, Plaintiff-Appellee State of Hawaiʻi
(State) charged Green by criminal indictment with two counts of
Sexual Assault in the Third Degree in violation of Hawaii
Revised Statutes (HRS) § 707-732(1)(b) (2014),2 as follows,
COUNT 1: On or about October 8, 2020, in the City and County of Honolulu, State of Hawaiʻi, JAMES GREEN, did knowingly subject to sexual contact, [complaining witness (CW)], a person who was less than fourteen years old, by placing his hand on her buttock, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b) of the Hawaiʻi Revised Statutes.
. . . .
COUNT 2: On or about October 8, 2020, in the City and County of Honolulu, State of Hawaiʻi, JAMES GREEN, did knowingly subject to sexual contact, [CW], a person who was less than fourteen years old, by placing his hand on her genitalia, thereby committing the offense of Sexual Assault in the Third Degree, in violation of Section 707-732(1)(b) of the Hawaiʻi Revised Statutes.
Following a four-day trial, the jury returned a
verdict finding Green guilty of both counts. On September 13,
2022, the circuit court sentenced Green to an indeterminate
2 HRS § 707-732(1)(b) (2014) states, in pertinent part,
Sexual assault in the third degree. (1) A person commits the offense of sexual assault in the third degree if:
(b) The person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person[.] 2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
five-year term of imprisonment for each count, with both terms
to run concurrently.
Green contends on appeal that the circuit court
committed plain error, and that Green's court-appointed trial
counsel was ineffective. We consider these contentions in turn,
and conclude that no plain error was committed below, and affirm
the Judgment without prejudice to Green's filing of a petition
for post-conviction relief, pursuant to HRPP Rule 40.
II. Discussion
A. Plain Error
"[A]n appellate court may recognize plain error when
the error committed affects substantial rights of the
defendant." State v. Metcalfe, 129 Hawaiʻi 206, 222, 297 P.3d
1062, 1078 (2013) (cleaned up); see HRPP Rule 52(b). This court
"will apply the plain error standard of review to correct errors
which seriously affect the fairness, integrity, or public
reputation of judicial proceedings, to serve the ends of
justice, and to prevent the denial of fundamental rights."
State v. Nichols, 111 Hawaiʻi 327, 334, 141 P.3d 974, 981 (2006)
(citations omitted). An appellate court's "power to deal with
plain error is one to be exercised sparingly and with caution
because the plain error rule represents a departure from a
presupposition of the adversary system--that a party must look
to his or her counsel for protection and bear the cost of
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counsel's mistakes." Metcalfe, 129 Hawaiʻi at 222, 297 P.3d at
1078 (citation omitted). Green contends three points of plain
error, as follows,3
(1) Green contends that "[p]lain error occurred where
the Court began jury empaneling with only 25 prospective jurors
present, leaving room for only 11 of those prospective jurors to
be excused while still meeting the 12-jurors-plus-2-alternates
requirement." Green contends that, despite the selection of a
jury panel of 12 jurors and 2 alternates, the "small pool" of 25
prospective jurors created "challenges" for counsel.
The record reflects that the State and Green could
have each exercised three peremptory challenges.4 The State
exercised three, and Green exercised one. Green does not
contend that he would have exercised additional peremptory
strikes had the jury pool been larger. Moreover, Green does not
contend that, of the twelve jurors and two alternates who were
empaneled, any should have been dismissed for cause.
The selection of jurors from a 25-person pool of
potential jurors does not, without more, constitute a "per se"
violation of Green's right to a fair and impartial jury. Even
3 Green asks this court to find plain error because he did not object to the contentions of error below. See State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 75 (1993) ("where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not brought to the attention of the trial court").
4 Pursuant to HRPP Rule 24, in criminal jury trials "each side is entitled to 3 peremptory challenges." HRPP Rule 24. 4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
assuming that a smaller-than-average jury pool constitutes an
irregularity in the jury selection process, Green does not show
improper motive or prejudice. State v. Mara, 98 Hawaiʻi 1, 12,
41 P.3d 157, 168 (2002) ("[I]f the jury finally impaneled in the
case at bar consisted wholly of qualified jurors, a mere
irregularity in the process is not itself a ground for reversal,
absent a showing of improper motive or prejudice.") We
conclude, on this record, that the selection of jurors from a
25-person jury pool was not plainly erroneous.
(2) Green contends that "[p]lain error occurred where
the Court allowed an expert opinion from [the State's] expert
despite no foundation being laid, and where the Court allowed an
expert opinion outside of [the expert's] expertise."
The record reflects that the State, without objection,
called Penny Kremer (Kremer) to testify as an expert in serology
and forensic DNA testing. Green agrees that Kremer was
qualified as an expert in serology and DNA testing. Kremer
testified that she is a criminalist, and that she works at the
Honolulu Police Department's (HPD) Scientific Investigation
Section, Forensic Biology Unit. She earned her Ph.D. in cell
and molecular biology from the University of Hawaiʻi at Manoa,
and her "duties and responsibilities" for HPD include
"examin[ing] items of evidence for DNA." Kremer testified that
she has performed DNA analyses "hundreds of times," and that HPD
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has an accredited DNA laboratory that meets "national and
international standards for DNA testing." She testified that
DNA testing was performed in the laboratory, and that all
standard operating procedures were followed to conduct the DNA
testing. She testified, moreover, that her work was reviewed by
another analyst before she documented that work.
Kremer testified that she took a dozen DNA samples
from CW's blanket taken at the crime scene, that two of the
samples contained a protein found in semen, and that Green
"could not be excluded" from one of the samples.5 Kremer
explained that she had also done a statistical analysis because
"[w]hen we find someone -- or a comparison that can't be
excluded, we do stats on -- to find out what would be the
probability of a person having all those markers." Kremer
testified that probability to be "one in greater than 8
trillion[,]" meaning that Kremer "would have to test greater
5 Kremer explained that Green "could not be excluded" from the sample as follows,
That means when I compared him –- his profile, his known profile, through that profile I obtained from that sample, that he had all the markers. Even though it was partial, he had all those markers. So he could not be excluded.
[W]hen we develop a profile, it's like an individual's telephone number, so you've got different numbers. It's represented by numbers at different sections. So –- and his profile will have different numbers at each section. And so when I put them next to each other and I compared them, he has all the markers that were on that questioned sample.
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than 8 trillion people to find someone that . . . could not be
excluded from that sample."
Green did not object to Kremer's testimony during
trial and, accordingly, we deem the issue waived. "[O]bjections
to the admission of incompetent evidence, which a party failed
to raise at trial, are generally not subject to plain error
review." Metcalfe, 129 Hawaiʻi at 225, 297 P.3d at 1081 (citing
State v. Wallace, 80 Hawaiʻi 382, 410, 910 P.2d 695, 723 (1996))
("It is the general rule that evidence to which no objection has
been made may properly be considered by the trier of fact and
its admission will not constitute ground for reversal. It is
equally established that an issue raised for the first time on
appeal will not be considered by the reviewing court. Only
where the ends of justice require it, and fundamental rights
would otherwise be denied, will there be a departure from these
principles.") On that basis, we conclude that the circuit court
did not plainly err in its admission of Kremer's unobjected-to
expert testimony, including the statistical analysis.
(3) Green contends that "[p]lain error occurred where
the Court failed to sufficiently support its reasoning behind
Appellant's five-years-of-imprisonment sentence." Green agrees
that the circuit court "'addressed' each of the factors [a court
7 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
considers in imposing a sentence],"6 but contends that "it did
not 'articulate' anything relative to those factors[.]"7 Green
relies upon State v. Kong, 131 Hawaiʻi 94, 102, 315 P.3d 720, 728
(2013), to support his contention.
In Kong, the Hawaiʻi Supreme Court held, in the context
of a trial court's imposition of a consecutive term sentence of
imprisonment that,
[Defendant] characterizes the circuit court's justification for imposing consecutive terms of imprisonment as "terse, conclusory, and lasting two words." However, the sentencing court is not required to articulate and explain its conclusions with respect to every factor listed in HRS § 706-606. Rather, it is presumed that a sentencing court will have considered all factors before imposing concurrent or consecutive terms of imprisonment under HRS § 706-606. Thus, the sentencing court is required to articulate its
6 It appears that Green references the "[f]actors to be considered in imposing a term of probation" set forth by HRS § 706-621(2) (2014), and the "[f]actors to be considered in imposing a sentence" set forth by HRS § 706-606 (2014).
7 The circuit court explained, in imposing the sentence,
Having considered all the statements this morning as well as the arguments of counsel, in determining whether or not probation is the appropriate sentence in this case, the Court is guided by Hawaii Revised Statutes Section 706-621.
There are ten factors to weigh to determine whether or not probation is appropriate. The tenth factor, 706- 621(2)(j) is not applicable 'cause this is not expedited sentencing.
With respect to the other nine factors to balance and consider, (2)(e) weighs in favor of a probation term in that the defendant has no history of criminal activity and has led a law-abiding life prior to the commission of this crime. All other factors weigh in favor of imprisonment.
And accordingly, in Counts 1 and 2, Mr. Green is sentenced to serve the indeterminate terms of incarceration of five years in each case. He will get credit for time served. All of the terms are concurrent with each other and any other term that defendant might have to serve. The mittimus will issue forthwith.
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reasoning only with respect to those factors it relies on in imposing consecutive sentences.
131 Hawaiʻi at 102, 315 P.3d at 728 (cleaned up) (emphasis
added). When imposing non-consecutive terms of imprisonment,
the sentencing court is not required to "articulate and explain
its conclusions" with regard to every sentencing factor. Id.
The circuit court sentenced Green to two indeterminate five-year
terms of imprisonment, with both terms to run concurrently. The
circuit court did not plainly err with respect to its imposition
of Green's indeterminate concurrent prison sentence.
B. Ineffective Assistance of Counsel
Green next contends that his appointed trial counsel
was ineffective. Pursuant to article I, section 14 of the
Hawaiʻi Constitution, and the Sixth Amendment to the United
States Constitution, defendants in a criminal proceeding have a
constitutionally guaranteed right to the effective assistance of
counsel at every critical stage of the prosecution. State v.
Salavea, 147 Hawaiʻi 564, 576, 465 P.3d 1011, 1023 (2020).
Green raises the issue of ineffective assistance of
counsel for the first time in this direct appeal. In such
cases, "the appellate court may consider the merits of the
appeal de novo if the record is sufficiently developed to
determine whether there has been ineffective assistance of
counsel." Id. at 575, 465 P.3d at 1022 (cleaned up).
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"The standard for determining the adequacy of
counsel's representation is whether, when viewed as a whole, the
assistance provided is within the range of competence demanded
of attorneys in criminal cases." Id. at 576, 465 P.3d at 1023
(cleaned up). "The burden of establishing ineffectiveness rests
with the defendant[,]" and "[defendant's] claim of inadequate
assistance will be upheld only if he can show there were
specific errors or omissions . . . reflecting counsel's lack of
skill, judgment, or diligence, and these errors or omissions
resulted in either the withdrawal or substantial impairment of a
potentially meritorious defense." State v. Smith, 68 Haw. 304,
309, 712 P.2d 496, 500 (1986) (cleaned up).
Green specifically alleges the following:
(1) "Court-appointed counsel was ineffective where he
failed to object to the absurdly low number of prospective
jurors called for jury duty, and where he also only used 1 of a
total of 4 peremptory challenges on the jury venire";
(2) "Court-appointed counsel was ineffective where he
failed to elicit testimony that the children in question had
twice before falsely accused [Green]";
(3) "Court-appointed counsel was ineffective where he
failed to ask any questions of [CW] and [CW's brother] regarding
discrepancies in their stories";
(4) "Court-appointed counsel was ineffective where he
failed to argue that the DNA could have come from the White 10 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Claw, and where counsel never questioned the DNA expert as to
other origins of the DNA besides semen";8
(5) "Court-appointed counsel was ineffective where he
failed to voir dire or object to [the State's] expert witness";
(6) "Court-appointed counsel was ineffective where he
offered no objection and no counter to [mother's] speculative
and unfounded testimony";
(7) "Court-appointed counsel was ineffective where he
apparently had zero trial experience as he made no motions for
judgment of acquittal";
(8) "Court-appointed counsel was ineffective where he
did not utilize the statements taken by police from the children
in question";
(9) "Court-appointed counsel was ineffective where he
essentially offered no argument at sentencing versus 12 pages of
argument presented by [the State]";9 and,
8 Green's reference to "the White Claw," is to an alcoholic beverage can that Green testified to allegedly finding "partly under [CW's] leg." On appeal, Green appears to contend that trial counsel should have argued below that the DNA on the blanket, which Kremer testified as containing a protein found in semen, could have come from DNA on the White Claw can.
9 We disregard this contention because Green's opening brief presents no discernible argument on this point of error. Kahoʻohanohano v. Dep't of Hum. Servs., State of Haw., 117 Hawaiʻi 262, 297 n.37, 178 P.3d 538, 573 n.37 (2008) (Hawaiʻi appellate courts will "disregard a particular contention if the appellant makes no discernible argument in support of that position") (cleaned up); Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points not argued may be deemed waived.").
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(10) "Court-appointed counsel was ineffective where he
allowed his client to enter stipulated facts negating [the
State's] requirement to prove DNA chain-of-custody and DNA
testing procedure, and where counsel stipulated to the grant of
all of [the State's] motions in limine and motion to determine
voluntariness."
We conclude that the record is not sufficiently
developed for this court to determine whether Steven Slavitt's
(Slavitt) representation was ineffective as to contentions 2
through 8, and 10. We reject Green's first contention, relating
to counsel's lack of objection to the "low" number of
prospective jurors, for the reasons discussed supra. We deem
Green's ninth contention waived, as explained in footnote 9.
State v. Silva, 75 Haw. 419, 439, 864 P.2d 583, 592 (1993)
("[N]ot every trial record is sufficiently developed to
counsel; indeed, a defendant is often only able to allege facts
that, if proved, would entitle him or her to relief[.]").
It appears, moreover, that Green's trial counsel,
Slavitt, was not provided notice of, nor the opportunity to
respond to, the ineffective assistance allegations that Green
raises for the first time on appeal.10 On this record, we are
10 It appears that Slavitt was not served with a copy of the opening brief, as required by HRAP Rule 28(a). See HRAP Rule 28(a) ("If a brief raises ineffective assistance of counsel as a point of error, the appellant
(continued . . .) 12 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
unable to discern as to whether "the assistance provided is
within the range of competence demanded of attorneys in criminal
cases[,]" "there were specific errors or omissions reflecting
counsel's lack of skill, judgment, or diligence[,]" and these
"errors or omissions resulted in either the withdrawal or
substantial impairment of a potentially meritorious defense."
See Salavea, 147 Hawai‘i at 576, 465 P.3d at 1023 (cleaned up).
We thus affirm the Judgment without prejudice to
Green's filing of a petition for post-conviction relief,
pursuant to HRPP Rule 40, to allow for service of Slavitt, and
the development of a factual record as to those contentions of
ineffective assistance. Silva, 75 Haw. at 439, 864 P.2d at 592-
93 ("[W]here the record on appeal is insufficient to demonstrate
ineffective assistance of counsel, but where: (1) the defendant
alleges facts that if proven would entitle him or her to relief,
and (2) the claim is not patently frivolous and without trace of
support in the record, the appellate court may affirm
defendant's conviction without prejudice to a subsequent Rule 40
petition on the ineffective assistance of counsel claim.").
(. . .continued)
shall serve a copy of the brief on the attorney alleged to have been ineffective."). 13 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
III. Conclusion
For the foregoing reasons, the circuit court's
Judgment of Conviction and Sentence, entered on September 13,
2022, is affirmed, without prejudice to Green's filing of an
HRPP Rule 40 petition, and remanded for further proceedings
consistent with this summary disposition order.
DATED: Honolulu, Hawai‘i, November 20, 2023.
On the briefs: /s/ Katherine G. Leonard Kai Lawrence, Presiding Judge for Defendant-Appellant. /s/ Karen T. Nakasone Brian R. Vincent, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, /s/ Kimberly T. Guidry for Plaintiff-Appellee. Associate Judge