NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 22-JAN-2025 10:34 AM Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. CHRISTOPHER MUNDON, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CASE NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka, and Guidry, JJ.)
Defendant-Appellant Christopher Mundon (Mundon) appeals
from the March 20, 2024 Judgment of Conviction and Probation
Sentence (Judgment), entered by the Circuit Court of the Third
Circuit (Circuit Court),1 convicting him of Promoting a Dangerous
Drug in the First Degree in violation of Hawaii Revised Statutes (HRS) § 712-1241(1)(a) (Supp. 2022).
Mundon raises three points of error on appeal,
contending that: (1) the Circuit Court erred in denying his
motion to suppress evidence; (2) the Circuit Court erred in
allowing him to proceed to trial on stipulated facts; and (3) he
1 The Honorable Wendy M. DeWeese presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
received ineffective assistance of trial counsel.
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 resolve Mundon's
points of error as follows:
(1) Mundon argues that the Circuit Court erred when it
denied the motion to suppress because the search warrant for the
white Toyota Tundra (Toyota) was based on an informant's stale
information and the subjective opinions and beliefs of Hawai#i County Police Department Officer Chandler B. Nacino (Officer
Nacino).
The Circuit Court's ruling on the motion to suppress is
reviewed de novo to determine whether the ruling was right or
wrong. State v. Eleneki, 106 Hawai#i 177, 180, 102 P.3d 1075,
1078 (2004).
"Probable cause exists when the facts and circumstances
within one's knowledge and of which one has reasonably
trustworthy information are sufficient in themselves to warrant a
person of reasonable caution to believe that an offense has been
committed." State v. Detroy, 102 Hawai#i 13, 18, 72 P.3d 485, 490 (2003) (citation and quotation marks omitted).
If the criminal activity is ongoing in nature, the
passage of time between an informant's last observations of that
activity and the issuance of the warrant is less significant than
when no such showing is made in the affidavit. State v. Austria,
55 Haw. 565, 570, 524 P.2d 290, 294 (1974) (citations omitted).
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"Direct evidence that contraband or evidence is at a
particular location is not essential to establish probable cause
to search the location. A magistrate is entitled to draw
reasonable inferences about where evidence is likely to be kept,
based on the nature of the evidence and the type of offense."
United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.
1986) (citations omitted).
In his affidavit for the search warrant, which sought
authorization for the search of Mundon's person, his residence, and a truck Mundon was known to drive, Officer Nacino stated,
inter alia, that he has been a police officer for approximately
eight years. He averred that "within the last month," a
confidential informant (CI) informed him that Mundon was
distributing cocaine in the Kailua-Kona area. The CI stated that
he/she was a "former user of cocaine," had known Mundon for over
one year, and observed Mundon conduct cocaine sales from his
residence.
Officer Nacino arranged for the CI to make a controlled
purchase of cocaine from Mundon at his residence "within the past
seven (7) days." After the controlled purchase, the CI turned
over the cocaine purchased from Mundon and identified Mundon as
the seller. The CI stated that he/she observed Mundon to keep
his "stash" within a backpack that is either kept on his person
or in his vehicle.
Officer Nacino and vice officers conducted surveillance
on Mundon to learn his day-to-day habits, and observed Mundon to
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
operate the Toyota, which was registered to another person.
Officer Nacino attested that based on his training and
experience, it is a common practice for drug dealers/users to
remove controlled substances from their residence, and keep them
on their person to prevent theft of their drugs, and based on his
experience in conducting searches of protected areas, "it is
common practice for heroin, cocaine, methamphetamine, and
marijuana to be stored in outbuildings, storage sheds, vehicles
and containers." On this record, we conclude that the Circuit Court did
not err in denying Mundon's motion to suppress. The controlled
purchase by the CI within seven days corroborated the reliability
of the CI's information, and that the information was not stale.
Based on the CI's statement that Mundon kept his "stash" within a
backpack that is either kept on his person or in his vehicle, and
Officer Nacino's averments, it was reasonable to infer that
cocaine might be found in the Toyota that Mundon drove.
(2) Mundon argues the Circuit Court erred in accepting
his agreement to a stipulated-facts trial because the Circuit
Court's on-the-record colloquy with him did not include an
explanation of the essential elements of the charged offenses.
Mundon appears to assert that he did not knowingly and
voluntarily waive his fundamental right to challenge the State's
evidence because of the lack of statement of the elements of the
charged offenses during the colloquy.
A trial court is required to engage in colloquy with a
defendant whenever a defendant waives a fundamental right.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
State v. Murray, 116 Hawai#i 3, 12, 169 P.3d 955, 964 (2007)
(citing State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578
(1993) (involving waiver of right to jury trial); and Tachibana
v. State, 79 Hawai#i 226, 235-36, 900 P.2d 1293, 1302-03 (1995)
(involving waiver of right to testify)). The colloquy is meant
to ensure that the waiver is being made directly by the
defendant, and is a knowing and voluntary waiver. Id.
In the Agreement to Proceed to Trial Upon Stipulated
Facts (Agreement to Proceed), Mundon stipulated to the Circuit
Court's consideration of 110 exhibits from the State for the
purpose(s) of a determination of his guilt or innocence.2
Mundon did not stipulate to any element of the charged
offenses.3 Nonetheless, the exhibits stipulated into evidence
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 22-JAN-2025 10:34 AM Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. CHRISTOPHER MUNDON, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CASE NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka, and Guidry, JJ.)
Defendant-Appellant Christopher Mundon (Mundon) appeals
from the March 20, 2024 Judgment of Conviction and Probation
Sentence (Judgment), entered by the Circuit Court of the Third
Circuit (Circuit Court),1 convicting him of Promoting a Dangerous
Drug in the First Degree in violation of Hawaii Revised Statutes (HRS) § 712-1241(1)(a) (Supp. 2022).
Mundon raises three points of error on appeal,
contending that: (1) the Circuit Court erred in denying his
motion to suppress evidence; (2) the Circuit Court erred in
allowing him to proceed to trial on stipulated facts; and (3) he
1 The Honorable Wendy M. DeWeese presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
received ineffective assistance of trial counsel.
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 resolve Mundon's
points of error as follows:
(1) Mundon argues that the Circuit Court erred when it
denied the motion to suppress because the search warrant for the
white Toyota Tundra (Toyota) was based on an informant's stale
information and the subjective opinions and beliefs of Hawai#i County Police Department Officer Chandler B. Nacino (Officer
Nacino).
The Circuit Court's ruling on the motion to suppress is
reviewed de novo to determine whether the ruling was right or
wrong. State v. Eleneki, 106 Hawai#i 177, 180, 102 P.3d 1075,
1078 (2004).
"Probable cause exists when the facts and circumstances
within one's knowledge and of which one has reasonably
trustworthy information are sufficient in themselves to warrant a
person of reasonable caution to believe that an offense has been
committed." State v. Detroy, 102 Hawai#i 13, 18, 72 P.3d 485, 490 (2003) (citation and quotation marks omitted).
If the criminal activity is ongoing in nature, the
passage of time between an informant's last observations of that
activity and the issuance of the warrant is less significant than
when no such showing is made in the affidavit. State v. Austria,
55 Haw. 565, 570, 524 P.2d 290, 294 (1974) (citations omitted).
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"Direct evidence that contraband or evidence is at a
particular location is not essential to establish probable cause
to search the location. A magistrate is entitled to draw
reasonable inferences about where evidence is likely to be kept,
based on the nature of the evidence and the type of offense."
United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.
1986) (citations omitted).
In his affidavit for the search warrant, which sought
authorization for the search of Mundon's person, his residence, and a truck Mundon was known to drive, Officer Nacino stated,
inter alia, that he has been a police officer for approximately
eight years. He averred that "within the last month," a
confidential informant (CI) informed him that Mundon was
distributing cocaine in the Kailua-Kona area. The CI stated that
he/she was a "former user of cocaine," had known Mundon for over
one year, and observed Mundon conduct cocaine sales from his
residence.
Officer Nacino arranged for the CI to make a controlled
purchase of cocaine from Mundon at his residence "within the past
seven (7) days." After the controlled purchase, the CI turned
over the cocaine purchased from Mundon and identified Mundon as
the seller. The CI stated that he/she observed Mundon to keep
his "stash" within a backpack that is either kept on his person
or in his vehicle.
Officer Nacino and vice officers conducted surveillance
on Mundon to learn his day-to-day habits, and observed Mundon to
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
operate the Toyota, which was registered to another person.
Officer Nacino attested that based on his training and
experience, it is a common practice for drug dealers/users to
remove controlled substances from their residence, and keep them
on their person to prevent theft of their drugs, and based on his
experience in conducting searches of protected areas, "it is
common practice for heroin, cocaine, methamphetamine, and
marijuana to be stored in outbuildings, storage sheds, vehicles
and containers." On this record, we conclude that the Circuit Court did
not err in denying Mundon's motion to suppress. The controlled
purchase by the CI within seven days corroborated the reliability
of the CI's information, and that the information was not stale.
Based on the CI's statement that Mundon kept his "stash" within a
backpack that is either kept on his person or in his vehicle, and
Officer Nacino's averments, it was reasonable to infer that
cocaine might be found in the Toyota that Mundon drove.
(2) Mundon argues the Circuit Court erred in accepting
his agreement to a stipulated-facts trial because the Circuit
Court's on-the-record colloquy with him did not include an
explanation of the essential elements of the charged offenses.
Mundon appears to assert that he did not knowingly and
voluntarily waive his fundamental right to challenge the State's
evidence because of the lack of statement of the elements of the
charged offenses during the colloquy.
A trial court is required to engage in colloquy with a
defendant whenever a defendant waives a fundamental right.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
State v. Murray, 116 Hawai#i 3, 12, 169 P.3d 955, 964 (2007)
(citing State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578
(1993) (involving waiver of right to jury trial); and Tachibana
v. State, 79 Hawai#i 226, 235-36, 900 P.2d 1293, 1302-03 (1995)
(involving waiver of right to testify)). The colloquy is meant
to ensure that the waiver is being made directly by the
defendant, and is a knowing and voluntary waiver. Id.
In the Agreement to Proceed to Trial Upon Stipulated
Facts (Agreement to Proceed), Mundon stipulated to the Circuit
Court's consideration of 110 exhibits from the State for the
purpose(s) of a determination of his guilt or innocence.2
Mundon did not stipulate to any element of the charged
offenses.3 Nonetheless, the exhibits stipulated into evidence
2 The Agreement to Proceed references "118" exhibits, which appears to be a clerical error as it is undisputed that there were only 110. 3 Mundon was charged with Promoting a Dangerous Drug in the First Degree in violation of HRS § 712-1241(1)(a) and Attempted Promotion of a Dangerous Drug in the First Degree in violation of HRS §§ 705-500 (2014) and 712-1241(1)(b)(ii). HRS § 712-1241(1)(a) and (b) states in part:
§ 712-1241 Promoting a dangerous drug in the first degree. (1) A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly: (a) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:
(i) One ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or (ii) One and one-half ounce or more, containing one or more of any of the other dangerous drugs;
(b) Distributes: . . . .
(ii) One or more preparations, compounds, (continued...)
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
were sufficient to support a conviction. Therefore, the Circuit
Court was required to engage in a colloquy with Mundon to ensure
that he understood the constitutional rights which he was waiving
by agreeing to the stipulated-evidence trial. Murray, 116
Hawai#i 3 at 12, 169 P.3d at 964.
The Circuit Court's thorough colloquy with Mundon
demonstrates that Mundon knowingly and voluntarily waived his
3 (...continued) mixtures, or substances of an aggregate weight of:
(A) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and sales of isomers; or
(B) Three-eights ounce or more, containing any other dangerous drug[.] HRS § 705-500 states:
§ 705-500 Criminal attempt. (1) A person is guilty of an attempt to commit a crime if the person: (a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or (b) Intentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime. (2) When causing a particular result is an element of the crime, a person is guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, the person intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result. (3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.
6 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
right to challenge the State's evidence, confront witnesses, and
present witnesses in his own defense.
Prior to accepting the Agreement to Proceed, the
Circuit Court properly colloquyed Mundon with respect his waiver
of his rights to be present in person, to a jury trial, and to
testify in his own defense. During these colloquies, Mundon
confirmed, inter alia, that his mind was clear, he was not under
the influence of alcohol, illegal drugs or prescription
medication, he attended two years of college and was able to speak, read, write and understand English, and he had consulted
with his attorney and was satisfied with the advice and services
provided by his attorney.
In the colloquy regarding the Agreement to Proceed, the
Circuit Court explained to Mundon that by stipulating the
exhibits into evidence, Mundon would be waiving the right to
confront and cross-examine the State's witnesses, the right to
object to the evidence, and the right to call witnesses on his
own behalf. Mundon confirmed that he understood he would be
waiving these rights, he had no questions, no one had promised
him anything or was pressuring, threatening, or forcing him to
agree to a stipulated-facts trial, and he consented to proceeding
with a stipulated-facts trial. Mundon also confirmed that he
read and understood the Agreement to Proceed and discussed it
with his lawyer prior to signing it. We conclude that the
colloquy was not deficient, and the Circuit Court did not err in
accepting the Agreement to Proceed.
7 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(3) Mundon argues that he received ineffective
assistance of counsel, because his attorney allowed him to waive
most of his fundamental constitutional trial rights, and
presented no defense for him, even though Mundon maintained his
not guilty plea.
A defendant claiming ineffective assistance of counsel
must show that there were specific errors or omissions reflecting
counsel's lack of skill, judgment, or diligence, and the errors
or omissions resulted in the withdrawal or substantial impairment of a potentially meritorious defense. State v. Yuen, 154 Hawai#i
434, 444, 555 P.3d 121, 131 (2024).
After the Circuit Court ruled that it was denying
Mundon's motion to suppress evidence, trial counsel stated, "I
think that we all know that the basis for this whole case pretty
much is made in these motions," and "a trial in this case really
does nothing to help us in terms of – ultimately, if we're going
to prevail, that we're going to prevail on appeal on these
issues." Trial counsel said he would speak to Mundon about
agreeing to a stipulated-facts trial to avoid wasting time and
his "client's money relative to what we ultimately have to get
to."
Mundon points to no specific errors or omissions that
resulted in the withdrawal or substantial impairment of a
potentially meritorious defense. Additionally, some benefit to
Mundon was derived from the stipulated-facts trial, and the on-
the-record colloquy established that Mundon knowingly and
voluntarily waived his right to confront the State's witnesses,
8 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
challenge the State's evidence, and present witnesses in his own
defense. We conclude that Mundon fails to establish that he
received ineffective assistance of counsel.
For these reasons, the Circuit Court's March 20, 2024
Judgment is affirmed.
DATED: Honolulu, Hawai#i, January 22, 2025.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Benjamin E. Lowenthal, Deputy Public Defender, Office of the Public Defender, /s/ Keith K. Hiraoka for Defendant-Appellant. Associate Judge
Nathan A Wersal, Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry Office of the Prosecuting Associate Judge Attorney, for Plaintiff-Appellee.