State v. Abihai

463 P.3d 1055

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,

v.Allan H. ABIHAI, Petitioner/Defendant-Appellant.

SCWC-17-0000546

Supreme Court of Hawai‘i.

APRIL 28, 2020

I. Introduction

On June 9, 2014, Allan H. Abihai ("Abihai"), who was serving a life term of imprisonment for multiple felonies committed in 1984, left the Laumaka Work Furlough Center ("Laumaka") in Honolulu and did not return. On June 29, 2014, Abihai was arrested at a former cellmate's apartment in Honolulu. He was later charged with escape in the second degree.

In his jury trial on the escape charge, Abihai raised a choice of evils defense, contending he left Laumaka because he was threatened he would be hurt if he testified in an upcoming federal criminal trial involving a prison gang. The jury was instructed on the choice of evils defense, then convicted Abihai of escape in the second degree. The Circuit Court of the First Circuit ("circuit court") imposed a five-year prison term for the escape conviction, to run concurrent to his life sentence for the 1984 felonies, and denied him credit for time served.

Abihai raised two points of error on appeal to the ICA: (1) that trial counsel was ineffective for substantially impairing his choice of evils defense by failing to elicit certain testimony from his witnesses; and (2) that the circuit court erred when it denied him credit for time served on the sentence imposed for the escape conviction. The ICA affirmed the circuit court's judgment of conviction and sentence.

Abihai raises the same issues on certiorari. For the reasons below, we resolve Abihai's points of error as follows: (1) Because the record on appeal is insufficient to determine whether there has been ineffective assistance of counsel, we affirm Abihai's conviction without prejudice to a subsequent Hawai‘i Rules of Penal Procedure ("HRPP") Rule 40 petition on the ineffective assistance of counsel claim; and (2) the ICA erred in affirming the circuit court's decision to deny Abihai credit for time served on his escape conviction. The circuit court's June 14, 2017 judgment of conviction and sentence is therefore affirmed, but the ICA's September 6, 2018 judgment on appeal is vacated, and this matter is remanded to the circuit court for calculation of Abihai's presentence detention credit consistent with this opinion.

II. Background

A. Factual Background

On June 9, 2014, Abihai, serving a life sentence for multiple felony convictions, left Laumaka on a work furlough but did not return. On June 29, 2014, Abihai was located at the apartment of a paroled former inmate and arrested for escape by deputy sheriffs from the Department of Public Safety ("DPS").¹ An investigator in the Department of the Attorney General requested that DPS release Abihai on the escape charge after booking and processing. Abihai was then taken to the Sheriff Receiving Desk in Honolulu for booking and processing. After midnight, Abihai was transported to the Oahu Community Correctional Center ("OCCC"); when Abihai complained of pain in his ribs, OCCC declined custody until Abihai was medically cleared. At some point, Abihai was placed back into custody at Halawa Correctional Facility ("Halawa") on his original sentence.

B. Circuit Court Proceedings

On March 17, 2015, Abihai was charged by felony information with one count of escape in the second degree in violation of Hawai‘i Revised Statutes ("HRS") § 710-1021 (2014).² On the same date, an arrest warrant on the escape charge issued on March 13, 2015, which set bail at $10,000, was executed on Abihai at Halawa and Abihai remained in custody at Halawa.

A jury trial on the escape charge commenced in the circuit court on February 6, 2017.³ In opening statements, the State explained that in June 2014, Abihai was accepted into the Work Furlough Program at Laumaka, assigned a case manager, and signed a work furlough agreement. The State further explained that the evidence would show that on June 9, 2014, Abihai intentionally escaped from Laumaka.

In Abihai's opening statement, Abihai's counsel did not dispute that Abihai had escaped; rather, he presented a choice of evils defense and argued that, because Abihai was running for his life, he could not be guilty of escape.⁴ Specifically, Abihai's counsel stated that Abihai's

life was in danger because members of a giant prison gang and a corrupt [adult corrections officer], his former friend, Feso Malafau believed that he would be testifying in a federal case that was brought against those gang members and that prison guard. They though he was going to be a snitch or a rat.

Abihai's counsel told the jury that the evidence would demonstrate that (1) Abihai was threatened; (2) his complaints to prison officials were not being addressed; (3) he did not have time to go to the courts to get transferred to a different location; and (4) he did not use force to escape. Abihai's counsel conceded, however, that Abihai did not try to turn himself in:

[Y]ou're going to hear that he did not turn himself in. The State is correct. He didn't call and say, hey, come get me, pick me up. It was his plan to wait. He believed he could not be safe until the USO trial, win or lose, was over and they knew he wasn't a snitch or a rat and he failed. But that's why he didn't turn himself in.

According to the testimony of the State's witnesses at trial, Abihai had escaped when he did not return to Laumaka after leaving the facility for a job on June 9, 2014. Carolyne Papali‘i ("Papali‘i"), a social worker at Laumaka, testified that she knew Abihai and was his case manager. Papali‘i explained that she reviewed a work furlough agreement with Abihai in March 2014, and that he signed the agreement, which contained several provisions discussing the consequences should an inmate fail to return to Laumaka in a timely manner. Papali‘i testified that on June 9, 2014, Abihai was supposed to report to Beachside Roofing for work, and was supposed to return to Laumaka at 8:00 p.m. Papali‘i further reported that she was told the following morning that Abihai did not return to Laumaka.

Adult Corrections Officer Benjamin Morn ("ACO Morn") also testified that Abihai failed to return to Laumaka on June 9, 2014. ACO Morn stated that he had reported for duty for the midnight shift at Laumaka at 10:00 p.m. on June 9, 2014, and discovered that Abihai had not returned. ACO Morn also testified that he did not receive any call from Abihai reporting where he was or why he was late.

James Mahelona ("Mahelona"), the field representative for Beachside Roofing, testified that he knew Abihai and that on June 9, 2014, Abihai was supposed to show up for work. Mahelona stated that Abihai did not show up to work and did not call to state that he was not going to show up.

To support his choice of evils defense, Abihai presented testimony from witnesses regarding his involvement in the federal criminal trial of the USO Family Gang,⁵ which began in September 2014.

Assistant U.S. Attorney Thomas Brady ("AUSA Brady") testified that he approached Abihai in September 2014 to ask if he would testify against the USO Family Gang, specifically as to his relationship with an adult corrections officer at Halawa Correctional Facility, Feso Malafau ("ACO Malafau").⁶ AUSA Brady stated that when Abihai expressed an intent to testify in the trial, the federal government took some precautions to keep him safe. For example, Abihai was transferred to the Federal Detention Center because "[w]e wanted to interview him again for his safety. We did not want that to occur at Halawa."

AUSA Brady testified, however, that on September 30, 2014, he was informed that Abihai had told the U.S. Marshals that he was unwilling to testify in the trial. AUSA Brady stated that he then met Abihai for a short discussion. On cross-examination, AUSA Brady described their conversation:

[The State:] And what was his demeanor?

[AUSA Brady:] His demeanor was –- his demeanor was that he refused to come into the courtroom. He said he did not want anyone to see his face. But as he was telling me that he was smiling.

[The State:] He was smiling?

[AUSA Brady:] Yes.

[The State:] Did the defendant ever ask for federal protection in exchange for his participation cooperating with the Feds?

[AUSA Brady:] No.

[The State:] If a potential witness like this defendant refused to cooperate with the federal government initially prior to trial are there any negative ramifications to that?

[AUSA Brady:] No, there's nothing we could do if somebody refused to testify.

Abihai also called Federal Bureau of Investigation ("FBI") Officer Lawrence Myers ("Officer Myers"). Officer Myers testified he took precautions to ensure people did not know Abihai was speaking with federal investigators:

[Abihai's Counsel:] And did you take precautions to protect Mr. Abihai from people either knowing about those interviews or knowing that he would testify?

[Officer Myers:] Yes, I did.

[Abihai's Counsel:] Are you comfortable telling us the exact nature of those precautions?

[Officer Myers:] No.

[Abihai's Counsel:] Why not?

[Officer Myers:] Not in this open court. It would endanger the lives of those that I took precautions to ensure their safety currently and those in the future.

[Abihai's Counsel:] So, for example, if you have a technique that hides the fact that someone might be a snitch or rat, you don't want to tell the whole world what that technique is, correct?

[Officer Myers:] That is correct.

[Abihai's Counsel:] That's fine, I won't ask you for more details.

Abihai also called Wendell Yoda ("Manager Yoda"), a supervisor at Laumaka, as a witness. Manager Yoda stated that, before Abihai left Laumaka on June 9, 2014, Abihai never told him about any threats he had received at Laumaka. Manager Yoda testified that, if Abihai wanted to contact him, he could do so by using the phone in the main administration building at Laumaka. Manager Yoda could not remember whether Abihai had tried to call him in the days leading up to his escape, but he also...