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March 25, 2026 Get Citation Alerts Download PDF Add Note

State v. Dandurand

Hawaii Intermediate Court of Appeals

• Citations: None known

• Docket Number: CAAP-23-0000753

• Opinion

• Authorities (37)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.7K)

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Combined Opinion

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAR-2026
07:49 AM
Dkt. 188 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
HAILEY DANDURAND, Defendant-Appellant,
and
STEPHEN BROWN, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and McCullen, JJ.)

Defendant-Appellant Hailey Dandurand (Dandurand)
appeals from the following judgment and orders entered in the
Circuit Court of the First Circuit1/ (Circuit Court): (1) the
December 6, 2023 Judgment of Conviction and Sentence (Judgment);
(2) the December 6, 2023 Mittimus; Warrant of Commitment; (3) the
December 12, 2023 Order Granting [Plaintiff-Appellee State of
Hawaii's (State)] Motion for Extended Term Sentencing; (4) the
December 12, 2023 Order of Restitution; and (5) the December 21,
2023 Findings of Fact, Conclusions of Law, and Order Granting in
Part State's Motion for Consecutive Term Sentencing.
Following a jury trial, Dandurand was convicted of the
following: (1) Murder in the Second Degree, in violation of
Hawaii Revised Statutes (HRS) §§ 707-701.5 and 706-656 (Count 1);
(2) Kidnapping, in violation of HRS §§ 707-720(1)(c) and/or 707-

1/
The Honorable Rowena A. Somerville presided.
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720(1)(e) (Counts 2 and 3);2/ (3) Burglary in the First Degree, in
violation of HRS § 708-810(1)(c) (Count 4); (4) Unauthorized
Entry into Motor Vehicle in the Second Degree, in violation of
HRS § 708-836.6 (Count 5); and (5) Unauthorized Possession of
Confidential Personal Information, in violation of HRS § 708-
839.55 (Count 6). As relevant to this appeal, Dandurand was
sentenced to:

an indeterminate term of life imprisonment with the
possibility of parole in Count 1, to be served consecutively
with Count 3 for an indeterminate term of life imprisonment
with the possibility of parole, to be served consecutively
with Count 4, for an extended term of twenty (20) years, and
one (1) year in Count 5, ten (10) years in Count 6, with
credit for any term served. . . . Counts 5 and 6 shall run
concurrently with Counts 1, 3 and 4 and with any other
sentence currently serving.

(Capitalization altered.)
On appeal, Dandurand contends that:
(1) her trial counsel, Barry Sooalo (Trial Counsel),
was ineffective for failing (a) to obtain expert and lay
witnesses to testify for the defense, (b) to obtain transcripts
of Defendant-Appellee Stephen Brown's (Brown) trial prior to the
start of Dandurand's trial, (c) to obtain expert witnesses for
Dandurand's extended-term sentencing hearing, (d) to timely file
Dandurand's motion for new trial, and (e) to argue a "legally
cognizable basis" for the inadmissibility of Dandurand's
statement to Honolulu Police Department Corporal David Ka#awa
(Cpl. Ka#awa) during the field show-up;
(2) the Deputy Prosecuting Attorney (DPA) committed
misconduct during his closing "where he expressed his personal
belief that Dandurand's behavior was not consistent with a victim
of abuse";
(3) the Circuit Court abused its discretion in finding
that M.E., a minor, was competent to testify;
(4) the Circuit Court erred in denying Dandurand's
motion to impanel a jury prior to imposing consecutive sentences;
(5) the Circuit Court erred in admitting Dandurand's

2/
On December 21, 2023, the Circuit Court ruled that "[n]o judgment
will enter as to [C]ount 2 due to merger."

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statement to Cpl. Ka#awa during the field show-up;
(6) the Circuit Court abused its discretion in
precluding Dandurand from calling certain witnesses due to trial
counsel's alleged violations of Hawai#i Rules of Penal Procedure
(HRPP) Rule 16; and
(7) the Circuit Court abused its discretion in denying
Dandurand's August 2, 2023 Motion to Continue Hearing on Extended
Term Sentencing (Motion to Continue Sentencing Hearing).3/
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
Dandurand's contentions as follows, and affirm.
(1) Dandurand contends that Trial Counsel was
ineffective based on several alleged errors or omissions. We
address each of these bases below.
When reviewing ineffective assistance of counsel
claims, this court considers "whether defense counsel's
assistance was within the range of competence demanded of
attorneys in criminal cases." State v. Yuen, 154 Hawai#i 434,
443-44, 555 P.3d 121, 130-31 (2024) (quoting State v. Wakisaka,
102 Hawai#i 504, 513-14, 78 P.3d 317, 326-27 (2003)).

The defendant has the burden of establishing
ineffective assistance of counsel and must meet the
following two-part test: 1) that there were specific
errors or omissions reflecting counsel's lack of
skill, judgment, or diligence; and 2) that such errors
or omissions resulted in either the withdrawal or
substantial impairment of a potentially meritorious
defense. To satisfy this second prong, the defendant
needs to show a possible impairment, rather than a
probable impairment, of a potentially meritorious
defense. A defendant need not prove actual prejudice.

Id. at 444, 555 P.3d at 131 (quoting Wakisaka, 102 Hawai#i at
514, 78 P.3d at 327).
(1)(a) and (c) Dandurand contends that Trial Counsel
was ineffective for failing to secure lay and expert witnesses to
testify for the defense. She argues that expert testimony was
critical to her duress and choice-of-evils defenses, so as to

3/
Dandurand's points of error have been consolidated and renumbered
for organizational clarity.

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explain her "apparent acquiescence in Brown's actions" and to
support her testimony that "she only complied because she was a
victim of abuse." Dandurand further contends that Trial Counsel
was ineffective for failing to secure expert witnesses for her
extended term sentencing proceedings, including "sentencing
mitigation expert" Dr. Colin King (King) and experts who "would
testify on the issue of battered woman syndrome (BWS) and/or
post-traumatic stress disorder." (Footnote omitted.) Without
such experts, Dandurand argues, "the jury had no objective
testimony that it was not necessary for the protection of the
public to extend Dandurand's sentences."
"Ineffective assistance of counsel claims based on the
failure to obtain witnesses must be supported by affidavits or
sworn statements describing the testimony of the proffered
witnesses." State v. Richie, 88 Hawai#i 19, 39, 960 P.2d 1227,
1247 (1998) (citing State v. Fukusaku, 85 Hawai#i 462, 481, 946
P.2d 32, 51 (1997)). Here, Dandurand relies on a letter sent by
her mother to the Circuit Court that criticizes Trial Counsel's
performance in several respects. Dandurand points to no
affidavits or other sworn statements from the witnesses who were
not called. Thus, she has not established that the alleged
errors resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense. In these
circumstances, however, we affirm the Judgment without prejudice
to a subsequent HRPP Rule 40 petition raising the asserted
claims. See State v. Silva, 75 Haw. 419, 439, 864 P.2d 583, 592
(1993).
(1)(b) Dandurand contends that Trial Counsel was
ineffective for failing to obtain transcripts of Brown's trial
prior to the start of her own trial because without them, Trial
Counsel could not adequately prepare and could not "confront two
of the State's witnesses on a critical inconsistency."
Specifically, Dandurand argues that in Brown's trial, HPD
Detective Robert Jones (Det. Jones) and HPD Evidence Specialist
Birdie Farley (Farley) testified that they were present at Telma
Boinville's (Boinville) autopsy but did not mention seeing red
hairs in Boinville's hand, whereas at Dandurand's trial, Det.

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Jones testified that he saw "reddish pinkish red hairs" in
Boinville's hand and Farley testified that she saw "loose hairs"
in Boinville's hands. Dandurand faults Trial Counsel for not
conducting any cross-examination of these witnesses.
We note initially that Dandurand merely asserts that
the JEFS record for this case does not contain any requests by
Trial Counsel for transcripts of Brown's trial. She has not
established that Trial Counsel failed to obtain copies or
descriptions of the relevant testimony from another source or was
not otherwise made sufficiently aware of the testimony so as to
make an informed decision regarding cross-examination. In any
event, counsel's decision to conduct cross-examination and the
nature of the questioning is generally a strategic decision. See
Richie, 88 Hawai#i at 39, 960 P.2d at 1247. On this record,
Dandurand has not shown that the alleged failure to obtain
transcripts or to cross-examine Detective Jones or Farley
constituted ineffective assistance of counsel.
(1)(d) Dandurand contends that Trial Counsel was
ineffective for failing to timely file her August 13, 2023 Motion
for New Trial (Motion for New Trial), which resulted in the
motion being denied by the Circuit Court for lack of
jurisdiction. Dandurand argues summarily that each of the issues
raised in the motion was potentially meritorious. These included
arguments that: (1) "[t]he State has not shown by proof beyond a
reasonable doubt that . . . Dandurand intended to kill
[Boinville]" (capitalization altered) (the intent argument); (2)
"[Dandurand's] defense [was] impaired by her inability to call
expert witnesses" (the expert witness argument); and (3) the DPA
committed prosecutorial misconduct by arguing in closing that
"[Dandurand] killed [Boinville] and that [Dandurand] did so by
asphyxiating [her] to death" (the prosecutorial misconduct
argument).4/
Trial Counsel's failure to timely file the Motion for
New Trial was plainly an error "reflecting counsel's lack of

4/
Although the Motion for New Trial asserted seven "undisputed
facts" in support, only three arguments were made based on these alleged
facts.

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skill, judgment, or diligence[.]" Wakisaka, 102 Hawai#i at 514,
78 P.3d at 327. The issue is whether Dandurand has shown that
this error resulted in either the withdrawal or substantial
impairment of a potentially meritorious defense. See id.
Having carefully reviewed the Motion for New Trial, we
conclude that Dandurand did not satisfy this burden. In brief:
(i) The intent argument. There was sufficient
circumstantial evidence presented at trial from which the jury
could have reasonably inferred that Dandurand had the required
mental state to commit second degree murder. See State v. Gomes,
117 Hawai#i 218, 227, 177 P.3d 928, 937 (2008) ("[T]he mind of an
alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances." (internal
quotation marks omitted) (quoting State v. Bui, 104 Hawai#i 462,
467, 92 P.3d 471, 476 (2004))). This evidence included the
following: Dandurand's and Brown's fingerprints were found at
the scene of the incident, and Dandurand's testimony placed them
both there; numerous weapons at the scene had Boinville's
blood/DNA on them, including a folding knife, kitchen knife,
machete, hammer, and meat tenderizer; the injuries to Boinville
indicated she was attacked from the front, and from behind and
from the right; Boinville's blood/DNA was found on Dandurand's
shorts, left hand, and left foot; Dandurand testified that she
held the machete, tied up Boinville, and put the bag over her
head (though she claimed it was under duress); M.E. testified
that both Dandurand and Brown tied her up and put tape on her
mouth; Det. Jones testified that he saw "reddish pinkish red
hairs" in Boinville's hand and Farley testified that she saw
"loose hairs" in Boinville's hands; Cpl. Ka#awa testified that as
he waited with Dandurand for the field show-up, she said, "Can
you just pull your gun out and shoot me in the head. My life is
over after today" (the Shoot-Me Statement); and Dandurand was
arrested wearing Boinville's earrings and with Boinville's debit
card in the pouch of the hoodie she was wearing. The evidence
supported the required mental state to commit second degree
murder as either a principal or an accomplice. See State v.
Brantley, 84 Hawai#i 112, 121-22, 929 P.2d 1362, 1371-72 (App.

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1996). The intent argument did not support a new trial.
(ii) The expert witness argument. For the reasons
discussed below in Section (6), the Circuit Court did not abuse
its discretion in precluding Dandurand from calling certain
expert witnesses as a sanction for discovery violations under
HRPP Rule 16. The expert witness argument did not support a new
trial.
(iii) The prosecutorial misconduct argument. The State
did not argue at trial that Boinville died by asphyxiation.
Rather, the State argued that tying the bag over Boinville's head
was evidence of Dandurand's state of mind, i.e., "[she] meant to
kill [Boinville]." The prosecutorial misconduct argument did not
support a new trial.
(iv) Summary. Because none of the arguments made in
the Motion for New Trial had merit, a new trial was not
warranted, and Trial Counsel's error in failing to timely file
the motion could not have resulted in the withdrawal or
substantial impairment of a potentially meritorious defense.
Accordingly, Dandurand has not shown that Trial Counsel's error
constituted ineffective assistance of counsel.
(1)(e) Dandurand contends that Trial Counsel was
ineffective for failing to make "legally sound" or "legally
cognizable" arguments to exclude her Shoot-Me Statement to Cpl.
Ka#awa at the hearings on her March 17, 2020 motion to suppress
evidence (Suppression Motion) and the State's December 31, 2021
motion to determine voluntariness (Voluntariness Motion).
Dandurand argues that Trial Counsel should have argued that the
Shoot-Me Statement was inadmissible or not voluntary because "it
was the produc[t] of [an] un-Mirandized custodial
interrogation."5/
Trial Counsel did just that. In the Suppression
Motion, he argued that Dandurand was in custody when she made the
alleged statement but was not given required Miranda warnings.
Moreover, at the September 1, 2022 hearing on the Suppression

5/
"Under Miranda[ v. Arizona, 384 U.S. 436 (1966)], warnings must be
provided when a defendant is (1) in custody, and (2) under interrogation."
State. v. Eli, 126 Hawai#i 510, 521, 273 P.3d 1196, 1207 (2012) (citing State
v. Ah Loo, 94 Hawai #i 207, 210, 10 P.3d 728, 731 (2000)).

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Motion and the Voluntariness Motion (Voluntariness Hearing),
Trial Counsel cross-examined Cpl. Ka#awa on whether Dandurand was
in custody when she was with him.
At related hearings, Trial Counsel also argued that the
alleged statement was inadmissible because its prejudicial effect
outweighed its probative value under HRE Rule 403, and because
the statement was not subject to a hearsay exception. Although
these other arguments raised evidentiary rather than
constitutional issues, asserting them appears to have been a
strategic choice. See State v. Silva, 75 Haw. 419, 441, 864 P.2d
583, 593 (1993) ("[D]efense counsel's tactical decisions at trial
generally will not be questioned by a reviewing court. Lawyers
require and are permitted broad latitude to make on-the-spot
strategic choices in the course of trying a case." (internal
quotation marks and citation omitted) (first quoting State v.
Antone, 62 Haw. 346, 352, 615 P.2d 101, 106 (1980), then citing
State v. Kelekolio, 74 Haw. 479, 524, 849 P.2d 58, 78 (1993))).
On this record, Dandurand has not shown that the alleged error
constituted ineffective assistance of counsel.
(2) Dandurand contends that "[t]he DPA committed
misconduct during his closing where he expressed his personal
belief that Dandurand's behavior was not consistent with a victim
of abuse." Specifically, Dandurand points to a segment of the
DPA's closing argument when he showed a Facebook video of Brown
and Dandurand to the jury and stated:

In her petition for an order for protection
[Dandurand] alleged abuse that was happening from September
of 2017 to the date of the arrest. Look at the date when
this Facebook video was posted. Right in the heart of this
purported period of prolonged abuse. You know it's not
true. That is not the way a person behaves if they are
subjected to the kind of abuse which she claims.

(Emphasis added.) Although the defense did not object to this
statement during trial, Dandurand argues on appeal that the
underlined comment "was effectively pseudo-expert testimony on
the typical behavior of a victim of abuse" that affected her
duress defense and thus the trial outcome.
"Prosecutorial misconduct" is "a legal term of art
that refers to any improper action committed by a prosecutor,

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however harmless or unintentional." State v. Willis, 156 Hawai#i
195, 204, 572 P.3d 668, 677 (2025) (quoting State v. Udo, 145
Hawai#i 519, 534, 454 P.3d 460, 475 (2019)). "Whenever a
defendant alleges prosecutorial misconduct, this court must first
decide: (1) whether the conduct was improper; and (2) if the
conduct was improper, whether the misconduct was harmless beyond
a reasonable doubt." Id. (internal quotation marks omitted)
(quoting Udo, 145 Hawai#i at 534-35, 454 P.3d at 475-76).
"It is well-established that prosecutors are afforded
wide latitude in closing to discuss the evidence, and may state,
discuss, and comment on the evidence as well as to draw all
reasonable inferences from the evidence." Id. (brackets and
internal quotation marks omitted) (quoting Udo, 145 Hawai#i at
536, 454 P.3d at 477). However, prosecutors may not express
their personal views about the evidence or introduce new
information or evidence in closing argument. See State v.
Hirata, 152 Hawai#i 27, 33, 520 P.3d 225, 231 (2022) (citing
State v. Marsh, 68 Haw. 659, 660, 728 P.2d 1301, 1302 (1986), and
State v. Basham, 132 Hawai#i 97, 113, 319 P.3d 1105, 1121
(2014)).
Dandurand argues that the DPA's comment here is similar
to the comment found to be improper in Hirata. There, the
prosecutor argued that the complaining witness testified
"consistent with a child who is traumatized" but presented no
expert witnesses who could testify about her mental health or
psychological condition. Id. at 33, 520 P.3d at 231. The
Hawai#i Supreme Court ruled that the prosecutor committed
misconduct because she expressed her personal belief and injected
new evidence not supported by the record. Id. In State v.
Browder, 154 Hawai#i 237, 549 P.3d 322 (2024), the court further
explained that "'[t]rauma,' and the state of being 'traumatized,'
are loaded terms" and because these terms have "a specialized
psychological meaning[,]" their use in closing argument requires
supporting expert testimony. Id. at 242, 244-45, 549 P.3d at
327, 329-30.
This situation is different. The defense argued in its
opening that Dandurand was physically abused by Brown and was not

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criminally responsible because she feared him and was not acting
voluntarily. Dandurand then testified that she was physically
abused and threatened by Brown, and based on incidents in
September through December 2017, she obtained an order of
protection in 2020 while in custody. In response, the DPA in
closing played the Facebook video of Brown and Dandurand, which
had been admitted into evidence as States' Exhibit 451, showing
them joking and holding each other during the 2017 time period;
the DPA commented, "That is not the way a person behaves if they
are subjected to the kind of abuse which she claims."6/ In this
context, we do not view the DPA's reference to "abuse" as the use
of a "loaded term" requiring expert testimony, but part of an
argument based on a reasonable inference that the video evidence
contradicted Dandurand's claimed defense. See Willis, 156
Hawai#i at 207, 572 P.3d at 680; cf. Menendez v. Terhune, 422
F.3d 1012, 1034, 1037 (9th Cir. 2005) (ruling that prosecutor's
comments during closing argument, that petitioners' father was a
patient man who would not abuse his sons, was not improper where
petitioners presented substantial evidence relating to alleged
abuse by their father to support their battered person's syndrome
defense, and prosecutor's comments were made based on other
evidence that tended to show that the father was not abusive).
The DPA's argument was not improper.
(3) Dandurand contends that the Circuit Court erred in
finding that M.E. was competent to testify because she was not
asked to explain her understanding of the oath or the
"consequences for violating that oath." Dandurand also points to
inconsistencies in M.E.'s testimony. We review the court's
determination under the right/wrong standard. State v.
Kelekolio, 74 Haw. 479, 527 n.23, 849 P.2d 58, 80 n.23 (1993).
HRE Rule 603.1 states that a person is disqualified as

6/
Immediately prior to playing the Facebook video, the DPA showed
the jury a "social media picture that became the linchpin of the
investigation" – an apparent reference to State's Exhibit 254, a photo of
Brown and Dandurand together smiling, which was provided to police and led to
Defendants' arrest. The DPA asked the jury: "Is this the picture of a woman
who looks abused? Who had been subjected to the kind of abuse she would have
you believe is true as detailed in that petition [for the order of
protection]?"

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a witness "if the person is (1) incapable of expressing oneself
so as to be understood, either directly or through interpretation
by one who can understand the person, or (2) incapable of
understanding the duty of a witness to tell the truth." "[T]he
question of testimonial competency must be determined on a case
by case basis." Kelekolio, 74 Haw. at 528, 849 P.2d at 80.
The Circuit Court did not err in finding that M.E. was
competent to testify at trial. During the March 5, 2021
competency hearing, M.E. described the difference between a truth
and a lie, knew what a judge was, said she was willing to take an
oath, promised to tell the truth, and knew that a person can get
in trouble for lying. M.E. also properly responded to two
examples of a truth posed by the DPA and one example of a lie
posed by Trial Counsel. Similarly, in State v. Damo, where the
minor "testified that he understood the truth and that he would
testify truthfully" and "responded to questions from the family
court about three examples of the truth," this court concluded
that the family court did not err in finding that the minor was
competent to testify at trial under HRE Rule 603.1. No. 29644,
2010 WL 3390064, at *1 (Haw. App. Aug. 30, 2010) (SDO).
Dandurand's argument is without merit.
(4) Dandurand contends that the Circuit Court erred in
denying Brown's December 4, 2023 Motion to Impanel a Jury Prior
to the Imposition of a Consecutive Imprisonment Sentence, which
Dandurand joined (Motion to Impanel a Jury). She relies on
Alleyne v. United States, 570 U.S. 99 (2013), in which the United
States Supreme Court held that any fact that increases the
mandatory minimum sentence for a crime is an element that must be
submitted to the jury, id. at 103, and State v. Auld, 136 Hawai#i
244, 361 P.3d 471 (2015), in which the Hawai#i Supreme Court held
that a defendant is entitled to have a jury find beyond a
reasonable doubt that their prior convictions trigger the
imposition of a mandatory minimum sentence as a repeat offender
under HRS § 706-606.5, id. at 254, 361 P.3d at 481. Dandurand
argues that the reasoning in Alleyne and Auld should apply to
consecutive sentencing, such that, here, the court could not
issue consecutive sentences "without a jury's determination on

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necessity for the protection of the public." Further, Dandurand
contends that State v. Kahapea, 111 Hawai#i 267, 141 P.3d 440
(2006), was "wrongly decided" in light of Alleyne7/ and Auld, and
the reasoning in Oregon v. Ice, 555 U.S. 160 (2009)8/ has been
"called into question by the [U.S.] Supreme Court's recent trend
towards leaving [the relevant] factual inquiries to the jury."
Alleyne and Auld are distinguishable - they did not
affect judicial fact-finding related to consecutive sentencing.
See State v. Thompson, No. CAAP-XX-XXXXXXX, 2018 WL 4611273, at
*4 (Haw. App. Sept. 26, 2018) (mem. op.), vacated on other
grounds, No. SCWC-XX-XXXXXXX, 2020 WL 2846618 (Haw. June 1, 2020)
(SDO). Rather, Kahapea governs this situation. There, the
Hawai#i Supreme Court held that Apprendi does not apply to a
sentencing judge's factfinding to impose consecutive sentences
under HRS § 706-668.5, which entails consideration of the factors
set forth in HRS § 706-606. See Kahapea, 111 Hawai#i at 278-80,
141 P.3d at 451-53 (rejecting the argument that Apprendi
proscribes factfinding for consecutive sentencing by a trial
judge). While consecutive sentences lengthened the defendant's
incarceration beyond the statutory maximum for one individual
sentence, none of the individual terms of imprisonment exceeded
the statutory maximum. Id. at 279, 141 P.3d at 452. The Hawai#i
Supreme Court concluded that pursuant to HRS §§ 706-660 and
706-668.5, the defendant's sentence of multiple terms running
consecutively was the statutory maximum. Id. at 279-80, 141 P.3d
at 452-53.
Similarly, here, Dandurand's three consecutive
sentences enhanced her terms of imprisonment beyond the statutory
maximum for one individual sentence, but none of the individual
terms of imprisonment exceeded the statutory maximum. Therefore,

7/
Dandurand argues that Alleyne "broadened [the] reach" of Apprendi
v. New Jersey, 530 U.S. 466 (2000), "beyond statutory maximums." In Apprendi,
the United States Supreme Court held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490.
8/
In Ice, the United States Supreme Court held that the Sixth
Amendment does not inhibit the State from assigning to judges, rather than to
juries, findings of facts necessary to the imposition of consecutive, rather
than concurrent, sentences for multiple offenses. 555 U.S. at 163-64.

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the Circuit Court did not err in denying Dandurand's Motion to
Impanel a Jury.
(5) Dandurand contends that the Circuit Court erred in
admitting the Shoot-Me Statement made to Cpl. Ka#awa because "it
was the product of an un-Mirandized custodial interrogation."
(Capitalization altered.) She argues that she was in custody
when she made the statement because the police investigation had
focused on her and Brown, Cpl. Ka#awa and other officers were
"around [her]," she was handcuffed, and her hands were bagged to
"preserve evidence." She also argues that she was subject to an
interrogation, in that Cpl. Ka#awa instructed her to "stand up
and look straight ahead" for the field show-up. This
instruction, Dandurand asserts, "suggested that she was going to
be identified as the perpetrator of the offense" and "the police
should have known that handcuffing Dandurand, putting bags on her
hands, and subjecting her to a witness identification was
reasonably likely to make her conclude that she was under arrest
as the perpetrator and would make incriminating statements."
Following the Voluntariness Hearing, the Circuit Court
entered its September 19, 2022 Findings of Fact, Conclusions of
Law and Order Granting State's Motion to Determine the
Voluntariness of Defendants' Statements to the Police, in which
the court determined that the Shoot-Me Statement was admissible.
The trial court's decision on a motion to determine voluntariness
"is the functional equivalent of a determination on a motion to
suppress statements." State v. Jackson, No. 29842, 2010 WL
1679575, at *2 (Haw. App. Apr. 21, 2010) (mem.) (citing State v.
Naititi, 104 Hawai#i 224, 234, 87 P.3d 893, 903 (2004)). We thus
review the Circuit Court's ruling de novo to determine whether it
was right or wrong. State v. Hewitt, 153 Hawai#i 33, 40, 526
P.3d 558, 565 (2023) (quoting State v. Weldon, 144 Hawai#i 522,
530, 445 P.3d 103, 111 (2019)).
Miranda warnings are required when probable cause to
arrest has developed. Id. at 44, 526 P.3d at 569 (citing State
v. Ketchum, 97 Hawai#i 107, 126, 34 P.3d 1006, 1025 (2001)). The
evidence from the Voluntariness Hearing did not show that the
police had probable cause to arrest Dandurand prior to the

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identification made at the field show-up.
Even when police do not have probable cause to arrest,
a person is in custody for Miranda purposes if the totality of
circumstances — including "the place and time of the
interrogation, the length of the interrogation, the nature of the
questions asked, the conduct of the police, and all other
relevant circumstances" — objectively show the person "was in
custody or otherwise deprived of their freedom of action" in a
significant way. Hewitt, 153 Hawai#i at 45, 526 P.3d at 570
(brackets omitted) (quoting State v. Patterson, 59 Haw. 357, 361,
581 P.2d 752, 755 (1978)); Miranda, 384 U.S. at 444 (defining
"custodial interrogation" as "questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant
way"). Here, the Circuit Court concluded that Dandurand was in
custody when she stood next to Cpl. Ka#awa for the field show up.
The State does not dispute this determination, and we conclude
that it was correct.
In determining whether "interrogation" has occurred,
"the ultimate inquiry is whether a law enforcement officer knew
or should have known that their words or conduct were reasonably
likely to elicit an incriminating response from the defendant,
even though the words and conduct might also be 'normally
attendant to arrest and custody.'" State v. Hoffman, 155 Hawai#i
166, 169, 557 P.3d 895, 898 (2024) (citing State v. Skapinok, 151
Hawai#i 170, 173, 510 P.3d 599, 602 (2022)). "[I]nterrogation
encompasses not only express questioning, but also any words or
actions on the part of the police . . . that [they] should know
are reasonably likely to elicit an incriminating response from
the suspect." State v. Trinque, 140 Hawai#i 269, 277, 400 P.3d
470, 478 (2017) (original ellipses and internal quotation marks
omitted).
Here, the Circuit Court found the following relevant
facts, none of which are disputed.

1. [Cpl. Ka#]awa came into contact with . . . Dandurand in front of the Starbucks.
2. [Cpl. Ka#]awa bagged . . . Dandurand's hands to preserve potential evidence and stood near her during

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the administration of a field show-up. The show-up
took place in the area fronting Starbucks.
56. [Cpl. Ka#]awa instructed . . . Dandurand to look
straight ahead, stand up, and not move.
57. After [Cpl. Ka#]awa instructed . . . Dandurand to
stand up, [she] said, "You may as well pullout your
gun and shoot me. After today, my life is over."
58. Neither [Cpl. Ka#]awa nor any police officer asked
. . . Dandurand any questions before she said this.

1. After [Cpl. Ka#]awa became aware of the results of the
   field show-up, he placed . . . Dandurand under arrest
   for unauthorized entry into motor vehicle.

2. [Cpl. Ka#]awa did not give Miranda warnings to . . .
   Dandurand.

We conclude that in these circumstances, the words and
actions of Cpl. Ka#awa prior to her Shoot-Me Statement were not
reasonably likely to elicit an incriminating response from
Dandurand. He did not ask her any questions or the functional
equivalent of any question. His simple, straightforward
instruction did not call for a verbal response. Dandurand's
verbal response was unsolicited, spontaneous, and voluntary. The
Circuit Court did not err in concluding that Dandurand was not
interrogated and that the Shoot-Me Statement was admissible.
(6) Dandurand contends that the Circuit Court abused
its discretion in precluding her from calling certain expert
witnesses as a sanction for discovery violations under HRPP Rule
16. Dandurand argues that "[t]he drastic sanction of exclusion
of [her] expert witnesses in violation of her constitutional
right to a fair trial was far too severe a sanction for Trial
Counsel's Rule 16 violations and the Court gave no indication
that it considered the factors as required by [State v. ]Ahlo[,
79 Hawai#i 385, 903 P.2d 690 (App. 1995)] and [State v. ]Inman[,
121 Hawai#i 195, 216 P.3d 121 (App. 2009)]."
We review the court's imposition of sanctions under
HRPP Rule 16 for abuse of discretion. Inman, 121 Hawai#i at 199,
216 P.3d at 125 (citing Ahlo, 79 Hawai#i at 398, 903 P.2d at
703). When determining the appropriate sanction to impose under
HRPP Rule 16 for a defendant's discovery violation, the trial
court must consider: "(1) whether the defendant was acting
maliciously or in bad faith; (2) the extent of prejudice to the

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prosecution caused by the violation; (3) whether the prejudice
could have been cured by measures less severe than excluding
evidence; and (4) any other relevant circumstances." Inman, 121
Hawai#i at 199, 216 P.3d at 125 (citing Ahlo, 79 Hawai#i at 400,
903 P.2d at 705).
Here, Dandurand failed to disclose reports by experts
who allegedly would have testified regarding battered spouse
syndrome. On April 9, 2020, Dandurand filed her first witness
list, identifying Dr. Robert Geffner (Geffner), Dr. Mindy
Mechanic (Mechanic), Dr. Duke Wagner (Wagner), Steve Goodenow
(Goodenow), and Jill Spector, Esq. (Spector), and referencing
reports prepared by these witnesses. The State and Brown made
repeated requests or motions for disclosure of the names of
Dandurand's expert witnesses and their reports, and the court
repeatedly ordered her to produce that information. During a
December 8, 2021 status conference, however, Trial Counsel
indicated that he had not obtained any experts. At a
September 6, 2022 hearing, the Circuit Court recognized that
Trial Counsel still had not retained any expert witnesses. The
next day, the State sent a letter to Trial Counsel again
requesting disclosure of the names of expert witnesses and their
reports. Jury selection began on July 10, 2023, and on the
fourth day, it became clear that Dandurand did intend to call
expert witnesses. The State objected based on the failure to
disclose their names and reports. The Circuit Court concluded
that Dandurand had not complied with the court's disclosure
deadlines, and "[g]iven the procedural history of this case,
including the representations by defense counsel, . . .
preclusion of any unnoticed defense experts . . . is just under
the circumstances of this case." The court precluded Dandurand
from calling Geffner, Mechanic, Wagner, Goodenow, and Spector.
Given the procedural history of this issue, it appears
that the defense was acting in bad faith in stating that it had
no experts, not disclosing expert reports, and then during jury
selection indicating it planned to call expert witnesses. The
prejudice to the State was significant, given that trial had
commenced; "complete and accurate pretrial discovery of expert

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witnesses is critical to a fair trial," Barcai v. Betwee, 98
Hawai#i 470, 481, 50 P.3d 946, 957 (2002) (quoting Lee v. Elbaum,
77 Hawai#i 446, 454, 887 P.2d 656, 664 (App. 1993)); and the
State was seemingly deprived of sufficient time to retain
rebuttal witnesses. It appears that the Circuit Court attempted
to avoid an exclusion sanction by allowing the defense to produce
evidence that it had disclosed Geffner's report to the State – to
no avail. Other relevant circumstances weighing heavily against
a further delay in trial included that jury selection had begun,
over 500 prospective jurors had been summoned, and the State had
brought in 40 witnesses, including several from the mainland and
out of the country. On this record, the Circuit court did not
abuse its discretion in entering the preclusion order.
(7) Dandurand contends that the Circuit Court abused
its discretion in denying her Motion to Continue Sentencing
Hearing. She argues that such a continuance was necessary to
allow her time to secure a "sentencing mitigation specialist" or
to file a writ challenging the court's denial of the motion.
"A motion for continuance is addressed to the sound
discretion of the trial court, and the court's ruling will not be
disturbed on appeal absent a showing of abuse of that
discretion." State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279,
1281 (1993) (citing State v. Gager, 45 Haw. 478, 488, 370 P.2d
739, 745 (1962)). In evaluating whether a motion for continuance
should have been granted, the relevant factors are: "(1) whether
counsel below exercised due diligence in seeking to obtain the
attendance of the witness; and (2) whether the witness provides
relevant and material testimony that benefits the defendant."
State v. Williander, 142 Hawai#i 155, 163-64, 415 P.3d 897,
905-06 (2018).
Here, Dandurand did not exercise due diligence in
seeking to obtain the attendance of the sentencing mitigation
specialist, King, she identified in the Motion to Continue
Sentencing Hearing. Dandurand had ample notice and time to
prepare for extended term sentencing, as the December 12, 2017
Indictment specifically mentioned extended term sentencing and
the State's January 5, 2018 "Notice of Eligibility for Sentencing

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Pursuant to Sections 706-661 and 706-662(4)(a) of the [HRS]"
expressly "g[ave] notice of . . . Dandurand's eligibility for
sentencing to an extended term and/or terms of imprisonment and
the prosecution's intention to seek such sentencing scheme." Yet
it appears from the declaration attached to the Motion to
Continue Sentencing Hearing that Trial Counsel did not attempt to
retain King until after Dandurand's conviction. It is also
unclear whether King would have provided "relevant and material
testimony that benefit[ted]" Dandurand, as the defense did not
present an affidavit or other sworn statement describing King's
qualifications or anticipated testimony.
On this record, the Circuit Court did not abuse its
discretion in denying the Motion to Continue Sentencing Hearing.
For the reasons discussed above, we affirm the
following, entered by the Circuit Court of the First Circuit:
the December 6, 2023 Judgment of Conviction and Sentence; (2) the
December 6, 2023 Mittimus; Warrant of Commitment; (3) the
December 12, 2023 Order Granting State's Motion for Extended Term
Sentencing; (4) the December 12, 2023 Order of Restitution; and
(5) the December 21, 2023 Findings of Fact, Conclusions of Law,
and Order Granting in Part State's Motion for Consecutive Term
Sentencing. We affirm without prejudice to a subsequent HRPP
Rule 40 petition raising the ineffective assistance of counsel
claims identified in section (1)(a) and (c) of this summary
disposition order.

DATED: Honolulu, Hawai#i, March 25, 2026.

On the briefs:
/s/ Keith K. Hiraoka
Alen M.K. Kaneshiro Presiding Judge
(Law Offices of Alen M.K.
Kaneshiro)
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Robert T. Nakatsuji,
Deputy Prosecuting Attorney,
City & County of Honolulu, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee. Associate Judge

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