State v. Millard

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAOT-XX-XXXXXXX 20-JUN-2025 07:59 AM Dkt. 5 ODSLJ NO. CAOT-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I JASON FLETCHER, Petitioner, v STATE OF HAWAI I, Respondent. ORDER (By: Leonard, Acting Chief Judge, Hiraoka, Wadsworth, JJ.) Upon review of the record, the court finds that self- represented Petitioner Eric Fletcher's (Fletcher) April 25, 2025 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody appears to seek affirmative relief in the nature of a federal petition for writ of habeas corpus, which this court lacks jurisdiction to decide. Therefore, IT IS HEREBY ORDERED that case No. CAOT-XX-XXXXXXX is dismissed for lack of jurisdiction without prejudice to Fletcher seeking relief from the appropriate court having jurisdiction. Dated: Honolulu, Hawai i June 20, 2025. /s/ Katherine G. Leonard Acting Chief Judge /s/ Keith K. Hiraoka Associate Judge /s/ Clyde J. Wadsworth Associate Judge

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-JUN-2025 07:58 AM Dkt. 65 SO NO.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. CHARLESTON MAHOE, Defendant-Appellant (CASE NO. 1CPC-XX-XXXXXXX) AND STATE OF HAWAI#I, Plaintiff-Appellee, v. CHARLESTON MAHOE, SR., Defendant-Appellant (CASE NO. 1CPC-XX-XXXXXXX) APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT SUMMARY DISPOSITION ORDER (By: Leonard, Acting C.J., and Hiraoka and Wadsworth, JJ.) Defendant-Appellant Charleston Mahoe, also known as Charleston Mahoe, Sr. (Mahoe), appeals from the following orders (together, the Denial Orders) entered by the Circuit Court of the First Circuit: (1) the February 28, 2023 "Findings of Fact, Conclusions of Law, and Order Denying [Mahoe's] Motion to Dismiss Proceedings" in case no. 1CPC-XX-XXXXXXX (Case 823); and (2) the February 28, 2023 "Findings of Fact, Conclusions of Law, and Order Denying [Mahoe's] Motion to Dismiss Proceedings," in case no. 1CPC-XX-XXXXXXX (Case 829).1/ On June 22, 2017, Plaintiff-Appellee State of Hawai#i (State) charged Mahoe in Case 823 with Count 1, Assault in the Second Degree, and Count 2, Violation of a Temporary Restraining Order. On June 23, 2017, the State charged Mahoe in the 829 Case 1/ The Honorable Shirley M. Kawamura presided in both cases.  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER with Counts 1 through 3, Terroristic Threatening in the First Degree, and Counts 4 through 9, Violation of a Temporary Restraining Order. Mahoe pleaded no contest to all counts in both cases, and on December 19, 2017, the circuit court sentenced him to HOPE probation. On June 24, 2022, the State moved in both cases to revoke Mahoe's probation and resentence him. On December 22, 2022, Mahoe filed a Motion to Dismiss Proceedings (Motion to Dismiss) in each case. Mahoe argued that the Hawai#i Supreme Court's decision in State v. Obrero, 151 Hawai#i 472, 517 P.3d 755 (2022), required dismissal due to the State's failure to comply with HRS § 801-1's indictment-or- information requirement. On February 28, 2023, the circuit court entered the Denial Orders, which denied the respective Motions to Dismiss. On May, 11, 2023, the circuit court filed Orders of Resentencing Revocation of Probation. On appeal, Mahoe contends that the circuit court erred in applying "the Motta/Wells standard" to his "Obrero claim" and denying his Motions to Dismiss on that basis. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Mahoe's appeal as follows: The Hawaii Supreme Court has held that "Obrero applies to cases that were pending trial before the decision. Obrero does not apply retroactively to defendants who pled out or to defendants convicted after a trial." State v. Bautista, 153 Hawai#i 284, 289, 535 P.3d 1029, 1034 (2023). The supreme court further held that "defendants awaiting sentencing . . . are foreclosed from having their pleas nullified or their trial convictions overturned" pursuant to Obrero. Id. Here, Mahoe pled out, was convicted, and was sentenced to probation with special conditions before Obrero was decided. He was awaiting resentencing when he first raised his argument based on Obrero. Pursuant to Bautista, Obrero did not apply to 2  NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER his cases. Accordingly, the circuit court did not err in denying the Motions to Dismiss. Therefore, the respective February 28, 2023 Denial Orders entered by the Circuit Court of the First Circuit in Case 823 and Case 829 are affirmed. DATED: Honolulu, Hawai#i, June 18, 2025. On the briefs: /s/ Katherine G. Leonard Taryn R. Tomasa, Acting Chief Judge Deputy Public Defender, for Defendant-Appellant. /s/ Keith K. Hiraoka Brian Vincent, Associate Judge Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee. /s/ Cly

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 17, 2025 Plaintiff-Appellant, 3:38 PM v No. 370663 Wayne Circuit Court LORENZO JEROME MONTGOMERY, JR., LC No. 23-005497-01-FH Defendant-Appellee. Before: MALDONADO, P.J., and M. J. KELLY and RIORDAN, JJ. PER CURIAM. In this domestic violence action, the prosecution appeals by leave granted1 the trial court’s order excluding as inadmissible statements made by the victim to law enforcement regarding her alleged assault by defendant, Lorenzo Jerome Montgomery, Jr. The trial court held that the victim’s statements were testimonial, making them inadmissible under the Sixth Amendment’s Confrontation Clause, US Const, Am VI. We reverse and remand. I. BACKGROUND Defendant is charged with first-degree home invasion, MCL 750.110a(2); intentionally discharging a firearm at a building, MCL 750.234b(1); assault with intent to do great bodily harm less than murder or by strangulation, MCL 750.84; second-degree child abuse, MCL 750.136b(3); carrying a firearm during the commission of a felony, MCL 750.227b; and domestic violence, 1 People v Montgomery, unpublished order of the Court of Appeals, entered April 26, 2024 (Docket No. 370663). This Court also granted a stay of the trial court proceedings pending this appeal. See id. -1- MCL 750.81(2);2 stemming from an altercation between defendant and the victim during a custody exchange of their three-year-old child, BM. Defendant went to the victim’s home as agreed to retrieve BM, and on arrival, became upset because there was another male inside the home. Defendant began to bang and pound on the windows and doors until the victim opened the side door, handed BM to defendant, and closed the door. After the victim gave BM to defendant, defendant broke through the side door with a handgun, placed the victim in a chokehold, and dragged her into a bedroom. BM ran back into the house, and defendant picked up BM before firing his gun into the ceiling. Defendant carried BM outside to his vehicle, firing his gun a second time into the air from the front porch, before leaving with BM. Shortly after, the victim called her mother, Estella Hardy, crying, at which point Hardy drove to the victim’s home, arriving about 10 minutes after the telephone call. Hardy saw a contusion on the side of the victim’s head and asked the victim where BM was located. Hardy told the victim that they should call the police, and officers arrived in less than 15 minutes. Officer Drew Macaechren received a dispatch for a possible home invasion and domestic dispute. The victim gave Officer Macaechren defendant’s cellular phone number, and dispatch contacted defendant’s phone carrier service to locate defendant. Defendant was taken into custody at his home, and BM was located in an upstairs room. The victim did not testify at defendant’s preliminary examination; however, Officer Macaechren and Hardy testified about the events and statements made by the victim. After defendant was bound over, the prosecution moved to admit the victim’s statements to Officer Macaechren under MCL 768.27c (admissibility of statement by declarant relating to infliction or threat of physical injury). Defendant objected, arguing that the statements were testimonial and admitting them would violate his confrontation right under the Sixth Amendment. Relying on the preliminary examination testimony, the trial court found that the victim’s statements to Officer Macaechren were not made to assist with an ongoing emergency but rather were made to assist with prosecuting defendant, and as such, were testimonial. Accordingly, the trial court denied the motion. The prosecution then moved for a stay in the proceedings under MCR 6.126 (decision on admissibility of evidence), which the trial court denied on the basis that “an appeal would be frivolous because legal precedent is clearly against the prosecutor’s position.” This appeal followed. II. DISCUSSION The Supreme Court has identified several factors that courts should consider when determining if statements to police are testimonial: The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumst

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 12-JUN-2025 08:05 AM Dkt. 52 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I SAMUEL COOPER, JR., Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPN-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.) Petitioner-Appellant Samuel Cooper, Jr. (Cooper), self- represented, appeals from the October 3, 2023 Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Order Denying Fifth Rule 40 Petition).1 Cooper does not identify points of error on appeal, as such. Nonetheless, we address Cooper's argument to the extent that we are able to discern it. On October 18, 2022, Cooper filed a Petition for Post-Conviction Relief pursuant to Hawai i Rules of Penal Procedure (HRPP) Rule 40 (Fifth Rule 40 Petition) raising a single ground for relief: that the prosecutor used information charging in the underlying criminal case. Cooper seeks relief from the Circuit Court's denial of the Fifth Rule 40 Petition. The underlying criminal case stemmed from a 1999 murder. On September 3, 1999, Cooper was charged by way of complaint with Murder in the Second Degree, in violation of Hawaii Revised Statutes § 707-701.5 (2014), convicted after a 1 The Honorable Trish K. Morikawa presided.  NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER jury trial, and sentenced to life imprisonment with the possibility of parole. Cooper appears to argue, as he argued in various submissions to the Circuit Court, that he was entitled to a grand jury indictment based on State v. Obrero, 151 Hawai i 472, 517 P.3d 755 (2022). 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 Cooper's appeal as follows: The Hawai i Supreme Court has held that "Obrero applies to cases that were pending trial before the decision. Obrero does not apply retroactively to defendants who pled out or to defendants convicted after a trial." State v. Bautista, 153 Hawai i 284, 289, 535 P.3d 1029, 1034 (2023). The supreme court further held that defendants challenging a charging instrument's validity for the first time in an HRPP Rule 40 petition are foreclosed from having their trial convictions overturned pursuant to Obrero. Id. Accordingly, we conclude that Cooper is not entitled to relief. Therefore, the Circuit Court's October 3, 2023 Order Denying Fifth Rule 40 Petition is affirmed. In addition, Cooper's Motion for Immediate Decision and Relief, filed on November 27, 2024, is hereby denied. DATED: Honolulu, Hawai i, June 12, 2025. On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Samuel Cooper, Jr., Petitioner-Appellant, pro se. /s/ Keith K. Hiraoka Associate Judge Loren J. Thomas Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth for Respondent-Appellee. Associate Judge 2

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:50 PM v No. 370182 Van Buren Circuit Court DONTE JAMELLE SMITH, LC No. 2023-024625-FH Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. YOUNG, J. (concurring). I write separately to discuss the evidence supporting fourth-degree fleeing and eluding. Let’s revisit the record underlying this conviction—trial testimony from Michigan State Police Trooper Alex Sussdorf. Sussdorf testified that he was the trooper who conducted the traffic stop of Smith. Sussdorf testified, “I activated my siren, multiple different tones, airhorn and eventually after an extended period of time, got on my . . . loudspeaker, and gave multiple commands to stop the vehicle.” During that time, Smith had ventured over to the shoulder of I-94 “more than a couple times” but ultimately continued down the highway to an exit ramp. At oral argument, Smith’s appellate counsel said that Smith took the first possible exit he could off of I-94. As he was exiting the freeway, Smith threw a gun out of the car window. According to Sussdorf, “[t]he stop eventually occurred off the freeway, off M-51 in the Marathon gas station right there at the corner of M-51 and I-94.” In the light most favorable to the prosecutor, Smith, who was from out-of-state and had his minor children with him in the vehicle, drove about four minutes1 without accelerating to a gas 1 A patrol car dash cam was admitted as an exhibit at trial and was not submitted to this Court to review. According to the transcript, the playing of the footage at trial of the initial traffic violation to the exit ramp took four minutes. -1- station (which is objectively safer, better-lit, and has the potential to record the encounter), and in the interim, tossed a gun. There is no question that Smith, albeit momentarily, “willfully fail[ed] to obey” the lawful direction to stop over the matter of minutes it took him to get to “the first available gas station.”2 But he did not fail to obey the police order “by increasing the speed of the motor vehicle” or “extinguishing the lights of the motor vehicle.” The question is whether Smith momentarily failed to obey by “otherwise attempting to flee or elude the officer.” On the present record before this Court, I agree with the majority that Smith tossing a gun from his car while driving a distance of two miles is enough to support that he was trying to avoid being caught and thus, eluding, the police.3 As a result, I concur. /s/ Adrienne N. Young 2 This is a quote from appellant’s brief. I cannot confirm the accuracy of this statement based on the record as I am without the dash cam video or any other record support for this claim. There is no testimony on the record refuting this. 3 At oral argument, appellate defense counsel posited that the crime of fleeing and eluding pertains only to the adherence or nonadherence to the lawful traffic stop order and not eluding a separate criminal offense (e.g. tossing a gun to avoid a gun possession charge while in the process of pulling over is destruction of evidence or something similar, not fleeing and eluding.). This argument is interesting but not before this Court at this time. It does present an issue where an opinion from the Michigan Supreme Court would be welcome to the bench and bar. -2-