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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000049
                                                              04-JAN-2013
                                                              09:29 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


        STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

          CHRIST V. NGO, Petitioner/Defendant-Appellant.


                          NO. SCWC-11-0000049

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-0000049; CR. NO. 09-1-1198)

                            January 4, 2013

      RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
        AND CIRCUIT JUDGE PERKINS, ASSIGNED DUE TO VACANCY

                  OPINION OF THE COURT BY ACOBA, J.

          We hold that in the indictment against Petitioner/

Defendant-Appellee Christ V. Ngo (Petitioner) charging him with

the offense of Accidents Involving Death or Serious Bodily
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Injury, Hawai#i Revised Statutes (HRS) § 291C-121 (Supp. 2007),

Respondent/Plaintiff-Appellee State of Hawai#i (Respondent)

failed to allege the requirements of HRS § 291C-14(a) and (b),2




      1
            HRS § 291C-12 provides in relevant part as follows:

                  (a) The driver of any vehicle involved in an
            accident resulting in serious bodily injury to or
            death of any person shall immediately stop the vehicle
            at the scene of the accident or as close thereto as
            possible but shall then forthwith return to and in
            every event shall remain at the scene of the accident
            until the driver has fulfilled the requirements of
            section 291C-14. Every such stop shall be made without
            obstructing traffic more than is necessary.

(Emphasis added.)

      2
            HRS § 291C-14 provides in relevant part as follows:

            (a) The driver of any vehicle involved in an accident
            resulting in injury to or death of any person or damage to
            any vehicle or other property which is driven or attended by
            any person shall give the driver’s name, address, and the
            registration number of the vehicle the driver is driving,
            and shall upon request and if available exhibit the driver's
            license or permit to drive to any person injured in the
            accident or to the driver or occupant of or person attending
            any vehicle or other property damaged in the accident and
            shall give such information and upon request exhibit such
            license or permit to any police officer at the scene of the
            accident or who is investigating the accident and shall
            render to any person injured in the accident reasonable
            assistance, including the carrying, or the making of
            arrangements for the carrying, of the person to a physician,
            surgeon, or hospital for medical or surgical treatment if it
            is apparent that such treatment is necessary, or if such
            carrying is requested by the injured person; provided that
            if the vehicle involved in the accident is a bicycle, the
            driver of the bicycle need not exhibit a license or permit
            to drive.

            (b) In the event that none of the persons specified is in
            condition to receive the information to which they otherwise
            would be entitled under subsection (a), and no police
            officer is present, the driver of any vehicle involved in
            the accident after fulfilling all other requirements of
            section 291C-12, 291C-12.5, or 291C-12.6, and subsection (a)
            of this section, insofar as possible on the driver's part to
            be performed, shall forthwith report the accident to the

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and under the circumstances of this case, Petitioner was

prejudiced by this defect in the indictment.           Consequently, this

case must be dismissed without prejudice.          We therefore vacate

the April 5, 2012 judgment of the Intermediate Court of Appeals

(ICA) filed pursuant to its March 21, 2012 Summary Disposition

Order, affirming the November 30, 2010 Judgment of Conviction and

Probation Sentence filed by the Circuit Court of the First

Circuit (the court)3 on August 5, 2010.

                                     I.

            On July 30, 2009, Respondent charged Petitioner with

violating HRS § 291C-12.       The indictment alleged as follows:
            On or about the 15th day of July, 2009, to and including the
            16th day of July, 2009, in the City and County of Honolulu,
            State of Hawai#i, [Petitioner], as the driver of a vehicle
            involved in an accident resulting in serious bodily injury
            to or death of Justin Lee [(Lee)], did fail to immediately
            stop the vehicle at the scene of the accident or as close
            thereto as possible, and did fail to forthwith return to and
            in every event remain at the scene of the accident and
            fulfill the requirements of Section 291C-14 of the Hawai#i
            Revised Statutes, thereby committing the offense of
            Accidents Involving Death or Serious Bodily Injury, in
            violation of Section 291C-12 of the [HRS].

(Emphasis added.)

nearest police officer and submit thereto the information specified in
subsection (a).

(Emphasis added.)

            HRS § 291C-12.5 is essentially the same as HRS § 291C-12 except
that it governs the conduct of a “driver . . . involved in an accident
resulting in substantial bodily injury to any person” as opposed to an
accident resulting in “serious bodily injury to or death of any person[,]” HRS
§291C-12. HRS § 291C-12.6 governs the conduct of a “driver . . . involved in
an accident resulting in “bodily injury to any person.”

      3
            On December 1, 2008, this case was committed from the district
court of the first circuit to the court. The Honorable Michael A. Town
presided over the trial.

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                                     A.

            At Petitioner’s trial, the following witnesses

testified on behalf of Respondent.

                                     1.

            Angella Smith (Smith) testified that, at the time of

the incident, Lee was her boyfriend.         On the evening of July 15,

2009, Smith planned to meet Lee for “karaoke.”4            Lee and Smith

met approximately ten friends at a McDonald’s restaurant located

in Kahala, Honolulu (McDonald’s).         After about ten to fifteen

minutes, the group decided to go to Zippy’s Restaurant (Zippy’s),

also located in Kahala.       It was Smith’s understanding that there

was going to be a fight there.

            Lee parked his car across from Zippy’s.          As they exited

the car, Lee and Smith “heard a big bang” “like a firecracker”

from the lower level parking lot of Zippy’s.           She and Lee ran

into the parking structure and observed some people fighting and

some people “busting windows.”

            Smith saw Lee run across the parking lot.          A white

Honda vehicle backed up and at the same time a gold-colored

Sports Utility Vehicle (SUV) drove forward and struck Lee’s legs




      4
            “Karaoke” is a device that plays instrumental accompaniments for a
selection of songs to which the user sings along[.]” Merriam Webster’s
Collegiate Dictionary 638 (10th ed. 1993).

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and Lee fell to the ground.      The Honda left, and the SUV started

“going forward” and ran Lee over.

          Smith approached the passenger side of the SUV, pounded

on the windows and screamed, “My boyfriend’s under your car; My

boyfriend’s under your fucking car; It’s under your car”

approximately six to ten times.       She jumped in front of the SUV

and pounded on the hood with both hands.         Smith stepped aside and

the SUV drove forward.     Lee was dislodged from under the SUV

after the vehicle went over a speed bump.         The SUV then drove

away.

                                    2.

          Lee testified that he and Smith were driving to the

karaoke place when his friend, Andrew, called and told Lee he

might be getting into a fight and needed Lee’s help.            Andrew told

Lee to meet him at McDonald’s.       When Lee and Smith arrived at

McDonald’s, there were approximately ten to fifteen people there.

Andrew told Lee “that he had some trouble with some people and

that they were going to fight at the Zippy’s [parking lot].”

          Lee parked his car near a gas station close to Zippy’s.

The people he was with at McDonald’s were already running into

the lower level parking structure of Zippy’s.          Lee heard

something that “[s]ounded like some kind of firecracker” just

before he entered the structure.



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          When Lee first entered, people were running around;

some of them were throwing punches, others were running away.              He

recognized his friends but did not recognize the others there.

Although Lee was not armed, Lee believed he may have seen one or

two of his friends carrying weapons.5

          Lee was running through the parked cars when he heard

tires screeching.    At that time he was between two parked cars.

He looked to his right and saw an SUV coming toward him.            He

believed the silver parked car “reversed or something” because he

“got smashed between the silver car and the SUV[.]”

          The SUV struck his lower right leg.          He fell face down

and the front two wheels of the SUV ran over him.           While under

the vehicle, he heard people yelling.        Smith was yelling “My

boyfriend’s underneath the car.”

          The SUV dragged Lee’s body across the parking lot and

he was finally dislodged when the vehicle went over a speed bump.

He saw the SUV leave the parking lot as his friends began to

surround him.   Lee was treated for his injuries and was in the

hospital for nearly two months.

                                    B.

          The following witnesses testified for the defense.

                                    1.

          Petitioner’s friend, Shinichi Wood (Wood), testified

     5
          Lee did not describe the weapons these individuals were carrying.

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that a conflict had developed between Petitioner’s friends and

Lee’s friends.    On the night of July 15, 2009, Wood and

Petitioner were eating at Zippy’s with some friends.            After they

finished, they went downstairs to the parking lot.           Suddenly,

several cars pulled up across the street.         Wood heard what he

believed were gunshots.     Wood and his friends were afraid and

decided to leave before anyone was hurt.

           Wood and two other friends, Justin Perreira (Perreira)

and Lane Morishima (Morishima) jumped into Petitioner’s vehicle.

At that moment, a group approached Petitioner’s vehicle with

metal batons and started “smashing the windows.”           The group

shattered the passenger window and attempted to hit Wood with the

baton.   There were at least “five guys” on Wood’s side (the

passenger side) of the vehicle.

           They were eventually able to leave Zippy’s and drove to

a “Shell” gas station (Shell) located in Kapahulu.           Wood was

unaware that the vehicle had struck anyone.          Nothing about

Petitioner’s mannerisms or demeanor suggested that Petitioner

knew he had struck anyone.      While at Shell, Wood received several

phone calls from individuals stating that someone may have been

run over by a “Murano” vehicle.       Wood did not identify

specifically who the calls were from, stating, “People would

just, like, call randomly[.]”       At the time, he believed the

Murano referred to was Petitioner’s Murano.

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            However, Wood did not believe that anyone had been run

over.   It was not until he woke up the morning after this

happened that several individuals told him the incident was on

the newscast.

                                     2.

            Alex Heneralau (Heneralau) testified that on the

evening of July 15, 2009, he was standing in the lower level

parking structure of Zippy’s when several cars pulled up and

parked across the street.       A “bunch of people” got out and ran

toward them.    Someone “fired something”; Heneralau “thought it

was gunshots.”     Something flew toward his car6 and left an

indentation on his door.       Heneralau and his girlfriend jumped

into his car and people began striking his windows and broke the

passenger window.

            Heneralau said, “Let’s get out of here.”          As he was

attempting to reverse, his car hit the front of Petitioner’s car.

Heneralau exited the parking structure.          After communicating with

other friends over the phone, they decided to meet at Shell.

Heneralau went home after he left Shell.

                                     3.

            Perreira testified that he was with Petitioner and


      6
            As set forth supra, Lee testified that a white Honda backed up
just before he was struck by Petitioner. Heneralau apparently drove a gray
Scion vehicle. It is unclear whether Lee had testified incorrectly regarding
the model of Heneralau’s car or if he was referring to another car backing up,
not belonging to Heneralau.

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their friends at Zippy’s because a conflict had arisen between

their group and Lee’s group.       Perreira, Petitioner, and their

friends were standing in the parking lot and observed “the other

group” pacing back and forth at a gas station across the street.

The other group started running toward them.          Perreira “stood

[his] ground” and “stayed there,” but the “other guys [] in [his]

group” “were kind of, like, Oh, let’s get out of here”; “They’re

coming, they’re coming[.]”      One “or two guys” were carrying bats.

          Someone pulled out a firearm and shot it toward the

roof of the parking structure; the individual was “running and

then waive[d] the gun up in the air,” and yelled “chee-hoo.”

Perreira could not recall who was carrying the firearm.            He was

not sure whether it was flare gun or a “real” gun.           When Perreira

heard the first shot, he panicked and everyone “ran for [their]

lives.”   Perreira “looked for the first car he could get into[,]”

which was Petitioner’s Murano.       The window on the driver’s side

door was open so Perreira jumped through the window and crawled

into the back seat.

          Perreira heard two or three more shots.           Petitioner

believed one of the bullets had gone through Heneralau’s window

because he saw “a stream” through the window and he did not

believe a “bat could make a stream like that.          It was a straight

piercing.”



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          Wood and Morishima were also in Petitioner’s vehicle.

Perreira heard “cars getting banged” and “windows cracking.”

Perreira crouched down “with [his] hands behind his head” to

avoid the glass from hitting his face.         As he was “tucked” down,

he heard a girl screaming, “My boyfriend, my boyfriend.”

Perreira believed the girl’s boyfriend was being hit by a bat.

He was not aware that anyone was struck by Petitioner’s vehicle.

          He remembered at some point they “were stuck” and the

“car just kept getting whacked by a bat” so Perreira yelled at

Petitioner, “We need to get the fuck out of here[,]” “do

something, move.”    He “peeked to look up” and saw “a male trying

to get inside the car, so [Perreira] assumed that was the guy

that was getting hit by a bat[.]”        The “car wasn’t moving[.]”

Perreira thought that a speed bump was preventing them from

moving, and that Petitioner “floored it” and “got over” it.

Perriera then called their other friends who told them to meet at

Shell.

          After they left the structure, they pulled over.             There

was glass “everywhere” but no one was injured seriously.            When

they arrived at Shell, the brother of Heneralau’s girlfriend,

Chris Khamlong (Khamlong), was there.        Khamlong was on the phone

attempting to determine who had a firearm.         He heard Khamlong

mention something about someone being “run over [by] the Murano”

but everyone at Shell “thought it was all BS.”          Perreira and

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Petitioner left Shell and went to the home of their friend, Lance

Fung Chen Pen (Lance).

            Sometime the next morning Perreira learned from a

newscast that someone had in fact been struck by a vehicle.                By

then, “[i]t was too late for [them] to call the police because

[Petitioner’s] auntie already called the police[.]”

                                    4.

            Petitioner testified that during the late evening of

July 15, 2009, he and his friends were “talking stories” in the

lower level parking structure of Zippy’s when Heneralau said,

“Oh, they’re here.”     Petitioner looked across the street and saw

the silhouette of several people jumping up and down and yelling.

Petitioner began backing up toward his car in case something

happened.    The “guys started running” toward them saying, “Oh,

where you think you guys going” in a threatening manner.            He then

heard a loud “bang[,]” which sounded like a gunshot.

            Petitioner’s “brain just told [him] to get out of

there”; “Everything went red” and Petitioner “was panicking.”

Petitioner unlocked his car, a Murano SUV, and jumped into the

driver’s seat.    Wood, Perreira, and Morishima also jumped into

his car.    Petitioner backed out of the stall and started to go

forward.    Petitioner’s front bumper hit Heneralau’s rear bumper

as Heneralau was reversing.      A group of people began hitting his

vehicle with instruments, shattering both windows on the

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passenger side.    Petitioner “duck[ed] down” and attempted “to

drive forward at the same time.”

          Petitioner was pressing on the gas pedal but his car

was not moving.    Petitioner believed that his wheel had been

damaged when he collided with Heneralau’s car, or that someone

had thrown something under his vehicle.         Petitioner did not see

his vehicle make contact with any person and did not know Lee was

under his vehicle.    When they eventually exited the parking

structure, Perreira told Petitioner to go to Shell.             At Shell

Petitioner heard that someone may have been run over but

Petitioner did not believe this because he “didn’t see this

[himself]” and “it was coming from the other side.”

          After a short while, Petitioner left Shell and

proceeded to Lance’s home.      The next morning, on July 16, 2009,

Lance returned from his paper route and told Petitioner to watch

the newscast.   “The news was talking about an attempted murder, a

body being dragged, and [it] showed a picture of Zippy’s.”

Petitioner started thinking about his car not being able to move

and “connected the dots, slowly[.]”        Petitioner called his aunts

and asked them to accompany him in turning himself in to the

police.

                                    5.

          Lance testified that a group ran toward them with bats

and batons.   He heard a gunshot as he was entering his car.

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Heneralau was the first to exit the parking structure in his

vehicle.    Lance followed after Heneralau.       One of his passengers,

Kari Traylor (Traylor) mentioned that Petitioner “was trapped in

the back.”    Traylor said, “[Petitioner] is stuck,” but Lance kept

driving because there were a lot of people surrounding

Petitioner’s vehicle who had broken Petitioner’s windows.

            After exiting Zippy’s, Lance drove straight to Shell.

Lance did not know anyone was struck by a vehicle.           “People

[were] telling [them] that somebody was run over” but he did not

believe them “at all.”     After they left, Petitioner stayed at

Lance’s home because Petitioner “didn’t want to bring trouble to

his family.”    The next morning, Lance returned home after doing

his paper route and received a call from a friend, who told him

to watch the news.    The newscast indicated that someone had been

dragged by a car at Zippy’s the previous night.

            Lance told Petitioner to watch the news.         Petitioner

was afraid and called his aunts to meet him at Lance’s home.

The police arrived shortly thereafter.

            On cross-examination, Respondent asked whether

Petitioner, Heneralau, and Perreira were also at Shell, and Lance

indicated that they were.      Lance also remembered Khamlong being

at Shell.    Lance was asked how much time had passed from the time

he left Zippy’s to the time he arrived at Shell.           Lance

responded, “Twenty to twenty-five minutes.”          He remained at Shell

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for approximately ten to fifteen minutes before leaving.

Petitioner stayed at his home that night.

                                     C.

            On redirect examination of Lance, defense counsel7

asked questions pertaining to the order in which Petitioner,

Heneralau, and Lance proceeded out of the parking structure.

Immediately following redirect examination, the court asked Lance

the following questions:
            Q.     Okay. At what point did you think maybe that somebody
            had been run over?
            A.     When we got to the Shell gas station.
            Q.     When you got to the Shell – Kapahulu Shell?
            A.     Yes.
            Q.     And what made you think that?
            A.     [Khamlong] was just –-
            Q.     Nice and loud. You’re mumbling.
            A.     [Khamlong] was all mad. And then they had, like, all
            this [sic] calls coming in.
            Q.     [Khamlong] was mad?
            A.     Yeah.
            Q.     What was he mad about?
            A.     He was talking about somebody getting runned [sic]
            over.
            Q.     [Khamlong] was?
            A.     Yes.
            Q.     This is, like, a few minutes after you left the
            Zippy’s?
            A.     Yes. It was at the gas station.
            . . . .
            Q.     So this whole scene came down at Zippy’s Kahala;
            right?
            A.     Yes.
            Q.     And then you all left; right?
            A.     Yes.
            Q.     And you went to the Shell Kapahulu?
            A.     Yes.
            Q.     And that’s when you first thought in your head maybe
            somebody got run over?
            A.     Yes.
            Q.     And you thought that because [of Khamlong?]
            . . . .
            A.     Yes.


      7
            At trial, Petitioner was represented by private counsel.   On
appeal, he is represented by the Office of the Public Defender.

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          Q.    Okay. And that was discussed in front of all of you?
          A.    Yes.
          Q.    Discussed in front of [Petitioner]?
          A.    Yes.
          Q.    Okay. And who did you think – which car do you think had
          run the person over?
          A.    We didn’t know at the time.
          Q.    You knew somebody might have been run over?
          A.    No.
          Q.    Huh?
          A.    No, not really.
          Q.    But -– why did –-
          A.    Because they were, like, frustrating him over the phone. And
          then, like, all I remember was [] Khamlong was, like willing to,
          like, try and hit [Petitioner], or he was going to. He was, like,
          super mad.
          Q.    [] Khamlong was trying to hit [Petitioner]?
          A.    No, not trying. He was pretty much ready to.
          Q.    And the reason why?
          A.    Because he’s friends with Justin.
          Q.    With which Justin?
          A.    Justin Lee.
          Q.    Justin Lee. [] Khamlong was friends with [] Lee?
          A.    Yes.
          Q.    He’s upset because somebody ran over [] Lee?
          A.    Yes.
          Q.    Is that right?
          A.    Yes.
          Q.    And he wanted to hit [Petitioner]? Or he was –- he was
          making big body or just talking or what?
          A.    He was just talking.
          Q.    He was talking. Okay. What did [Petitioner] say, if
          anything?
          A.    He was, like, I didn’t – he just didn’t know the whole time.
          Q.    He what?
          A.    He didn’t know the whole time.
          Q.    Didn’t know the whole time?
          A.    Yes.
          Q.    Okay. And then later on it turned out somebody had been run
          over?
          A.    Yes.
          Q.    And dragged, right?
          A.    Yes.
          Q.    Did you know [] Lee?
          A.    No.
          Q.    Have you seen him since then?
          A.    No.
          Q.    All right. And how did [] Khamlong find this out? Over the
          cell phone --
          A.    Yes.
          Q.    -- or he saw it?
          A.    Over the cell phone.
          Q.    Okay. Were people texting or calling?
          A.    Calling.
          Q.    They were calling?
          A.    Yes.

(Emphases added.)

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          On further redirect, defense counsel asked Lance the

following questions:
          Q.    Lance, did you believe somebody had been run over when
          you were at the Shell?
          A.    No, not at all.
          Q.    Why didn’t you believe somebody had been run over?
          A.    Because I don't recall anything happening.
          Q.    And, I mean, after -- even after [] Khamlong was
          saying this, did you believe that, oh, you know, for sure
          somebody had been run over?
          A.    No.
          Q.    Okay. Why not?
          A.    I don't know. I just couldn't believe it.
          Q.    Okay.
          A.    There was, like, no proof. And I really can’t
          see anybody getting runned [sic] over.
          Q.    Okay. And did [Petitioner] say anything about, Oh, I
          ran over somebody?
          A.    No, not at all.
          Q.    Okay. So when did you believe somebody actually had
          been run over?
          A.    The Zippy’s -- the news.
          Q.    The news.
                The news the next morning -- or that early
          morning after you came back from your paper route?
          A.    Yes.
          Q.    And what you knew in the news, what you learned
          from the news, you believed what the news depicted,
          right –
          A.    Yes.

(Emphases added.)

          On recross-examination, Respondent asked, “to follow up

with what [the court] asked you,” did “Khamlong specifically used

[sic] the name ‘Justin Lee’ at the Kapahulu Shell station?”

Lance responded, “He just said ‘Justin.’”         Respondent then asked,

did he say “that Justin had been run over?”          Lance answered,

“Yes.”

                                    D.

          At the end of trial, the court found Petitioner guilty

as charged.   The court stated, Petitioner “knew and was quite

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aware of what he did.     He struck [] Lee at the Kahala Zippy’s”

and Lee was under Petitioner’s car and dragged some way before he

was dislodged.    The court found that Petitioner “did not report

this for some time after he was able to do so without harm to

himself or to his car.”     The court concluded the “time lapse . .

. [was] both illegal and criminal in nature.”          The court said

that, although Petitioner may “well now sincerely believe that he

didn’t see or know [] Lee was struck by his Murano[,]” the “facts

show otherwise beyond a reasonable doubt that he is guilty.”

According to the court, “[o]nce Petitioner reached Kapahulu Shell

-- if not before, he should have -- should have and did not call

911 and follow what the statute required.         He did not return home

that night” and instead “stayed with a friend.”           The court

concluded by stating, although his family “did the right thing

albeit a little too late and a little –- and too little,

[Petitioner] respectfully is found guilty.”

                                    II.

          Petitioner appealed to the ICA.         Pertinent to

Petitioner’s application for writ of certiorari (Application),

Petitioner argued in his Opening Brief that the court committed

plain error and violated Petitioner’s constitutional right to a

fair and impartial tribunal by questioning Lance extensively and

eliciting evidence upon which the court specifically based its

finding of guilt.    The ICA determined that the court’s

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questioning of Lance did not constitute plain error.             State v.

Ngo, No. CAAP-11-0000049, 2012 WL 954867, at *1 (App. Mar. 21,

2012) (SDO).8

                                    III.

            Petitioner presents the following questions9 in his

Application: (1) “[w]hether the ICA’s order affirming

Petitioner’s conviction constitutes an obvious inconsistency with

the Supreme Court’s April 12, 2012 decision in State v. Nesmith,

[127 Hawai#i 48, 276 P.3d 617 (2012)],” and (2) “[w]hether the

ICA gravely erred in concluding that [the court] did not abuse

its discretion when it engaged in prosecutorial questioning of

defense witness [Lance].”       On June 15, 2012, Respondent filed a

Response to Petitioner’s Application (Response).            Petitioner

filed a Reply to the Response on June 22, 2012 (Reply).

                                     IV.

            In connection with the first question, Petitioner

contends that the indictment was fatally defective because it did


      8
            The second point of error raised by Petitioner on appeal to the
ICA was that the court incorrectly convicted Petitioner because there was
insufficient evidence that Petitioner failed to forthwith report the accident
to a police officer when Petitioner turned himself in twelve hours after the
accident. The ICA declined to define “forthwith” to mean “within a reasonable
time under the circumstances” as opposed to “instantaneous action.” Ngo, 2012
WL 954867, at *3. The ICA concluded there was substantial evidence to support
the conclusion that by the time Petitioner reached Shell, he knew he had run
someone over and failed to report that accident within the time frame required
by HRS § 291C-12 and 291C-14. Id. Petitioner does not challenge the ICA’s
conclusion with respect to this issue in his Application and therefore it is
not addressed further.

      9
            The order in which Petitioner presented his questions is reversed
for analytical purposes.

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not allege (1) the “intentional, knowing, and reckless states of

mind required for the HRS § 291C-12 offense” or (2) the

requirements of HRS § 291C-14(a) and (b), which Petitioner was

supposed to have violated in conjunction with HRS § 291C-12.

Petitioner acknowledges that because he challenges the indictment

for the first time on appeal, it “‘must be liberally construed.’”

(Quoting State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019

(1983).)    Under the liberal construction standard, a conviction

will not be reversed on account of a defective indictment

“‘unless the defendant can show prejudice or that the indictment

cannot within reason be construed to charge a crime.’”            (Quoting

Motta, 66 Haw. at 91, 657 P.2d at 1020.)

                                    V.

            Petitioner first contends that the indictment cannot be

construed to charge a crime because nothing in the indictment can

be read as alleging that the requisite states of mind for the

offense were intentional, knowing, or reckless.           Additionally,

Petitioner urges that because the states of mind were not alleged

in the indictment, he did not have fair notice of the requisite

states of mind and therefore was prejudiced by the defect in that

regard.    In view of our resolution of Petitioner’s other

arguments, and Respondent’s acknowledgment during oral argument

of its obligation to set forth the applicable states of mind in

the charge, this point is not discussed further.

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                                    VI.

            In connection with the first question, Petitioner also

contends that the charge was deficient because it omitted any

allegation of the requirements of HRS § 291C-14, that are

“essential elements” of HRS § 291-12.        As indicated, because

Petitioner challenges the sufficiency of the indictment for the

first time in his Application, the liberal construction standard

applies.    See Motta, 66 Haw at 91. 657 P.2d at 1020.          Under this

standard, this court “‘will not reverse a conviction based upon a

defective [oral charge] unless the defendant can show prejudice

or that the [oral charge] cannot within reason be construed to

charge a crime.’”    Id.

                                    A.

            It must be observed at the outset that Respondent

appears to have prosecuted this case on the basis that Petitioner

had failed to comply with HRS § 291C-12, and that the

requirements of HRS § 291C-14 were elements of HRS § 291C-12.

The indictment itself alleges that Petitioner “did fail to

immediately stop the vehicle at the scene of the accident or as

close thereto as possible, and did fail to forthwith return to

and in every event remain at the scene of the accident and

fulfill the requirements of Section 291C-14[.]”           (Emphasis

added.)    Also, as Petitioner asserts in his Reply, Respondent



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stated during closing arguments that “Element No. 5” of the

charged offense was that Petitioner failed to “comply[] with the

requirements of the law” which are “set forth under 291C-14.”              In

closing argument, Respondent asked, “What are the requirements of

the law?”    Respondent stated, “They are set forth under [HRS §]

291C-14[.]”    Respondent proceeded to recite the requirements

under both HRS § 291C-14(a) and (b):
                  In summary fashion the requirements of the law require
            that a driver involved in an accident where a -- where death
            or serious bodily injury has resulted shall give the
            driver’s name, address, and registration number of the
            vehicle to any person injured in the accident and, upon
            request, the driver shall exhibit his driver’s license to
            the person who is injured. Furthermore, the law requires
            that the driver shall render reasonable assistance to any
            person injured in the accident. Now, that comes straight
            from the statute. Now, that’s 291C-14(a).
                  291C-14(b) speaks to those situations where it is not
            possible for the driver to immediately do these things,
            specifically where the person -- let me rephrase. Where the
            injured person is not in a condition to receive
            the information required under subsection (a) and no police
            officer is present, then the law requires this. The driver
            shall forthwith report the accident to the nearest police
            officer. “Forthwith” is a term with which this Court and
            attorneys are familiar. Perhaps not to the lay person. But
            “forthwith” means immediately, without haste, as soon as
            possible. “Shall” is a command. It is not a suggestion.
            It is not something open to interpretation. It is a
            language really of commanding or directing action. A person
            shall -- let me rephrase. The driver shall forthwith report
            the incident to the nearest police officer and thereupon
            disclose the required information as set forth in subsection
            (a). Those are the requirements of the law.

(Emphases added.)     Respondent then stated, “So as to Element No.

5, did the defendant . . . fulfill the requirements of the law in

this case?    The answer is a resounding no.”         Thus, Respondent

took the position at trial that the requirements set forth in HRS

§ 291C-14 were elements of the HRS § 291C-12 offense, which


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Respondent was required to prove beyond a reasonable doubt at

trial.

          However, in its Response, Respondent takes a contrary

position, arguing that, where it alleges a defendant failed to

stop at all, Respondent need not prove that Petitioner failed to

comply with HRS § 291C-14.      Respondent suggests that whether a

defendant complied with HRS § 291C-14 is relevant only when the

defendant stops at or returns to the scene.          But, Respondent is

seemingly estopped from now advancing a theory of HRS § 291C-12

inconsistent with its position at trial that Petitioner had

violated HRS § 291C-12, partially on account of his failure to

fulfill the requirements of HRS § 291C-14.         Roxas v. Marcos, 89

Hawai#i 91, 124, 969 P.2d 1209, 1242 (1998) (judicial estoppel

“prevents parties from playing fast and loose with the court or

blowing hot and cold during the course of litigation” (quotation

marks and citation omitted)); see also State v. Anger, 105

Hawai#i 423, 98 P.3d 630 (2004) (holding that the prosecution was

judicially estopped from arguing that Rules of Evidence did not

apply to hearings on the motion to suppress because the

prosecution expressly proceeded below on the basis that hearing

was subject to those rules).

                                    B.

          In its Response Respondent also maintains that under

the facts of this case, the requirements of HRS § 291C-14 were

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not essential elements of the HRS § 291C-12 offense.            This

position is also inconsistent with Respondent’s position at

trial.   As pointed out by Petitioner in its Reply, Respondent

stated in its closing arguments that the requirements of HRS §

291C-14 “constitut[ed] ‘element no. 5’ of the [HRS] § 291C-12

offense[,]” and that Respondent had the burden of proving

“Petitioner did not fulfill” those requirements.           Respondent is

now estopped from arguing that the requirements of HRS § 291C-14

are not elements of the offense as well.

                                    C.

           In any event, Respondent is incorrect that the

requirements of HRS § 291C-14 are not essential elements of a HRS

§ 291-12 offense.    As set forth previously, HRS § 291C-12

provides as follows:
           (a) The driver of any vehicle involved in an accident
           resulting in serious bodily injury to or death of any person
           shall immediately stop the vehicle at the scene of the
           accident or as close thereto as possible but shall then
           forthwith return to and in every event shall remain at the
           scene of the accident until the driver has fulfilled the
           requirements of section 291C-14. Every such stop shall be
           made without obstructing traffic more than is necessary.

(Emphasis added.)    HRS § 291C-12 requires a driver involved in an

accident resulting in serious bodily injury or death to either

“immediately stop” at the scene of the accident or “stop as

close” to the scene of the accident “as possible[,]” but then

“forthwith return to and remain at the scene of the accident




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until the driver has fulfilled the requirements of [HRS] § 291C-

14.”

             HRS § 291C-14(a) describes the information and aid a

driver must provide when he or she is involved in an accident

described by HRS § 291C-12.10         Thus, under HRS § 291C-12, a

driver may be criminally liable if he or she did not stop at or

return to the scene of the accident and, consequently, did not

provide the information and aid required to be provided under HRS

§ 291C-14(a).       A driver may also be criminally liable under HRS §

291C-12 if the driver did stop at or return to the scene of the

accident, but failed to remain at the scene until he or she

provided all of the information and aid described in HRS § 291C-

14(a).

       10
             To reiterate, HRS § 291C-14(a) provides as follows:

             (a) The driver of any vehicle involved in an accident
             resulting in injury to or death of any person or damage to
             any vehicle or other property which is driven or attended by
             any person shall give the driver’s name, address, and the
             registration number of the vehicle the driver is driving,
             and shall upon request and if available exhibit the driver's
             license or permit to drive to any person injured in the
             accident or to the driver or occupant of or person attending
             any vehicle or other property damaged in the accident and
             shall give such information and upon request exhibit such
             license or permit to any police officer at the scene of the
             accident or who is investigating the accident and shall
             render to any person injured in the accident reasonable
             assistance, including the carrying, or the making of
             arrangements for the carrying, of the person to a physician,
             surgeon, or hospital for medical or surgical treatment if it
             is apparent that such treatment is necessary, or if such
             carrying is requested by the injured person; provided that
             if the vehicle involved in the accident is a bicycle, the
             driver of the bicycle need not exhibit a license or permit
             to drive.

(Emphasis added.)

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              On the other hand, HRS § 291C-14(b) appears to qualify

a driver’s duty to comply with HRS §§ 291C-12 and 291C-14(a) in

certain instances described in HRS § 291C-14(b).              HRS § 291C-

14(b) refers to circumstances in which persons involved in the

accident are not in a condition to receive the information

described under subsection (a), and no officer is present.                   In

such an event, HRS § 291C-14(b) provides that after fulfilling

the requirements of HRS § 291C-12 and HRS § 291C-14(a), among

other statutes, “insofar as possible on the driver’s part to be

performed,” (emphasis added), the driver must “forthwith report

the accident to the nearest police officer and provide the

officer with the information set forth in [HRS §] 291C-14(a).11

              HRS § 291C-12, read in conjunction with HRS § 291C-

14(b), would require a driver to stop or return to the scene of

the accident, and provide the required information and aid only

“insofar as possible.”        In such circumstances, the driver must



      11
              As previously set forth, HRS § 291C-14(b) provides in its entirety
as follows:

              (b) In the event that none of the persons specified is in
              condition to receive the information to which they otherwise
              would be entitled under subsection (a), and no police
              officer is present, the driver of any vehicle involved in
              the accident after fulfilling all other requirements of
              section 291C-12, 291C-12.5, or 291C-12.6, and subsection (a)
              of this section, insofar as possible on the driver's part to
              be performed, shall forthwith report the accident to the
              nearest police officer and submit thereto the information
              specified in subsection (a).

(Emphasis added.)


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“forthwith report the accident to the nearest police officer and

submit thereto the information specified in subsection (a).”

            HRS § 291C-12 does not speak in terms of requiring a

driver to complete the requirements of HRS § 291C-14(a) only.

The language of HRS § 291C-12 would allow compliance therewith by

satisfying the requirements of either HRS § 291C-14(a) or (b).

The prosecution would need to prove beyond a reasonable doubt

that the defendant failed to fulfill the requirements under HRS §

291C-14 (a) or (b), which set forth specific conduct constituting

the offense.12    Plainly then, the requirements in 291C-14 (a) and

(b) were essential elements that needed to be included in the

charge.

            Additionally, the mere reference to HRS § 291C-14 in

the indictment was insufficient to allege the specific

requirements set forth under HRS § 291C-14 (a) and (b) that

Petitioner was alleged to have contravened.           State v. Elliott is

instructive.     77 Hawai#i 309, 884 P.2d 372 (2012).         In Elliott,

the defendant Elliott challenged, among other things, the charge


      12
            Arguably, HRS § 291C-12 and HRS § 291C-14(b), appear somewhat
contradictory. HRS § 291C-12 requires a driver involved in an accident
resulting in serious bodily injury to or death to either stop or return to the
scene of the accident and remain there until he or she has provided all of the
information and aid required by HRS § 291C-14(a). Under such a construction,
only the requirements of HRS § 291C-14(a) would be possible of application
with respect to the conduct prescribed in HRS § 291C-12. However, the duties
of a driver under the circumstances set forth in HRS § 291C-14(b) qualify the
obligations imposed under HRS § 291C-12 and HRS § 291C-14(a). The potential
confusion created by the relationship between HRS § 291C-12 and the separate
conditions in HRS § 291C-14(a) and (b) underscores the necessity for alleging
HRS § 291C-14(b) was violated by Petitioner.

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of assault on a police officer.        He was charged orally as

follows:
            On or about the 28th day of June, 1991 in Kona, County and
            State of [Hawai#i] [defendant] intentionally, knowingly [or]
            recklessly caused bodily injury to Officer Belinda Kahiwa by
            biting her thereby committing the offense of assault in the
            third degree, assault of police office [sic] violation of
            Section 707-712.5 [HRS] as [a]mended.

(Emphasis added.)     77 Hawai#i at 310, 884 P.2d at 373.         Elliott

argued that “the State failed to allege that the assault was

against ‘a police officer who was engaged in the performance of

duty.’”    Id. at 311, 884 P.2d 374.       This court held that, even

under the liberal construction standard, “the statutory

reference” was insufficient “to provide the necessary element

missing from the charges so as to sufficiently state the offenses

charged against Elliott.”       Id. (internal quotation marks,

citation, and brackets omitted).

                                    VII.

                                     A.

            The defective charge must result in vacation of

Petitioner’s conviction if Petitioner can show that he was

surprised, prejudiced, or hampered in his defense on account of

the defective charge.      See Motta, 66 Haw. at 90-91, 657 P.2d at

1019-20 (holding that under the liberal construction standard,

even if the charge may be construed reasonably to charge an

offense, the conviction must be vacated if the defendant




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establishes he or she was surprised, prejudiced, or hampered in

his or her defense on account of the defective charge).

           The record in this case establishes that Petitioner was

prejudiced on account of the defective charge, insofar as the

charge failed to allege whether HRS § 291C-14 (a) or (b) was

charged.   As discussed, under HRS §§ 291C-12 and 291C-14(b), if

the “persons specified” are not in a condition to receive the

information described in HRS § 291C-14(a) and no officer is

present, the driver must comply with HRS §§ 291C-12 and 291C-

14(a), but only “insofar as possible on the driver’s part to be

performed[.]”   Subsequently, the driver must “forthwith report”

the accident and furnish the information to the nearest police

officer.   HRS § 291-14(b).

           In that context, Petitioner maintains the omission in

the indictment of the subsections of HRS § 291C-14 “prejudiced

[his] ability to defend . . . because HRS § 291C-14 provides an

alternative basis for criminal conduct” “more than what was

actually charged in the indictment.”        According to Petitioner, he

was “not aware of the conduct element” in HRS § 291C-14(b) for

the offense of HRS § 291C-12.       Therefore, he was unaware that he

could be criminally liable under HRS § 291C-12 even in the event

that he could not stop at or return to the scene of the accident,

if he failed to “forthwith report” the accident to the nearest

police officer.    (Quoting HRS § 291C-14(b).)        Petitioner

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maintains thus that he was not given notice of being charged with

failing to comply with HRS § 291C-14(b) which would “negate[] his

‘contemporaneous awareness’ and choice-of-evils defenses.”

                                     B.

            As indicated, the indictment did not allege whether

Petitioner was being charged with failing to comply with HRS §

291C-14(a) or HRS § 291C-14(b), or both.13          In its opening

statement, Respondent stated that after Petitioner struck Lee,

the vehicle “never stopped and never returned.           The driver in

this case never immediately stopped to give his name, address, or

the registration number of his vehicle.          He did not provide his

driver’s license or any other identification information.”

(Emphasis added.)     Respondent maintained that,
                  The evidence will further show that [Petitioner] did
            not immediately stop after that collision. He did not
            provide the information required under the law, namely his
            name, address, the registration number of his vehicle, nor
            did he provide any other identifying information.

                  The evidence will show that he left Zippy’s Kahala
            parking lot that late evening or early morning and did not
            immediately return, or in other words of the statute,
            forthwith return to comply with the requirements of the law.

(Emphases added.)     Absent from Respondent’s indictment and the

opening statement was any reference to Petitioner having failed

to “forthwith report the accident to the nearest police officer



      13
            In light of the omission, Petitioner was uninformed as to the
nature and cause of the accusation against him, as required by Haw. Const. Art
I § 14. Article I, section 14 of the Hawai#i Constitution provides in
relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be informed of the nature and cause of the accusation[.]”

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and submit thereto the information specified in [HRS §] 291C-

14(a)[,]” as required in HRS § 291C-14(b).         Thus, it is apparent

from Respondent’s opening statement that Respondent was

proceeding under the theory that Petitioner had violated HRS §

291C-12 and failed to comply with HRS § 291C-14(a).

           At the close of the prosecution’s case-in-chief,

Petitioner moved for a judgment of acquittal.          First, defense

counsel argued that HRS § 291C-12 required Respondent “to prove

that [Petitioner was] aware of the accident at the time it

occurred.”   According to the defense, Respondent’s case

established reasonable doubt as to whether Petitioner knew at

Zippy’s that he had struck Lee.       Defense counsel also argued that

Respondent’s evidence established his choice-of-evils defense.

           The court then inquired, “So he had no obligation to go

to a place of safety, safe haven, whatever it is, and call the

police?”   Apparently believing Petitioner had been charged with

violating HRS § 291C-12 for failing to fulfill the requirements

of HRS § 291C-14(a), as Respondent had suggested, defense counsel

urged that the statute “did not envision the circumstances [in

this case].”   Further establishing Petitioner’s understanding

that Respondent had charged him with failing to comply with HRS §

291C-14(a), defense counsel argued, that “[t]he statute doesn’t

address” whether Petitioner should have contacted the police when

he did in fact learn he had been involved in an accident,

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stating, “if upon learning that he was involved in an accident,

should he have contacted the police?           The statute doesn’t address

that.     But morally we feel like it would be morally correct to do

so.”

             In rebuttal, Respondent responded to Petitioner

stating, “The requirements of the law are found in 291C-14” which

recognizes that when “the person injured in the accident is not

in condition to receive the information, the driver nonetheless

had an affirmative duty to . . . forthwith report the accident to

the nearest police officer and submit thereto the information

specified in the sub-section[,]” and “[t]hat did not happen in

this case.”      However, Respondent had not alleged in the

indictment the requirements under HRS § 291C-14(b) that

Petitioner was said to have violated.           Absent an allegation that

Petitioner had failed to comply with HRS § 291C-14(b), Petitioner

was not provided notice of the requirement that, although unable

to stop at or return to the scene of the accident, he must

“forthwith report” the accident to the nearest police officer

under HRS § 291C-14(b).

             Seemingly, from the foregoing, up until Respondent’s

rebuttal of Petitioner’s arguments for judgment of acquittal,

Petitioner believed he had been charged with violating HRS §

291C-12 and HRS § 291C-14(a).          Only after Petitioner argued that

the charged offense did not cover situations in which a defendant

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fails to report the accident to the police did Respondent contend

Petitioner could also be found criminally liable under HRS §

291C-14(b).   Such notification does not cure the prejudice to

Petitioner.   Cf. State v. Valeros, 126 Hawai#i 370, 380, 271 P.3d

665, 675 (2012) (stating that the defense’s “opportunity to

interview” the prosecution’s witness, an individual whom the

defendant had intended to call as an alibi witness, “during the

middle of trial” “did not cure the prejudice to Defendant”).               In

this regard Petitioner was hampered in his defense.

          Subsequently, Petitioner seemingly attempted to shift

the focus of his defense a bit.       But, even during closing

arguments, defense counsel argued that Petitioner had been

charged with failing to return to the scene, indicating that it

was the defense’s belief the charge focused on HRS § 291C-12 and

HRS § 291C-14(a):
          Under HRS § 291C-14, when someone is injured, it’s pretty
          clear that if you read the statute as being applicable in
          this case, you would have to find, as [Respondent] has
          suggested, that the person has to be aware . . . that he
          injured that individual or caused the death of that person
          right then and there.

(Emphases added.)    At that point, the court referred defense

counsel to HRS § 291C-14(b):
          What is the second portion here? I’ve been trying to cross-
          reference these. 291C-14 and 12 that says, [i]n the event
          none of the persons specified is in the condition to receive
          the information in which they otherwise would be entitled,
          and no police officer is present, the driver of any vehicle
          in the accident, insofar as possible on the driver’s part to
          be performed, shall forthwith report the accident to the
          nearest police officer, etc.



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The court stated that it understood Petitioner’s position as

interpreting HRS § 291C-12 to require a driver to report the

accident “right there at the scene[.]”          Defense counsel affirmed

that that was Petitioner’s position, “as [Respondent]

suggest[ed].”

          It would appear that because the subsection of HRS §

291C-14 with which Petitioner was being charged was not

specified, Petitioner was not made aware that even if his failure

to stop was defensible, the law imposed the additional

requirement that he “forthwith report the accident[,]” pursuant

to HRS § 291C-14(b).     Because Respondent advanced the theory that

Petitioner was charged with failing to comply with HRS § 291C-

14(b) during the middle of trial, Petitioner was hampered in

presenting his defense.     In sum, Petitioner appears to have been

prejudiced by the omission in the indictment of the requirements

of HRS § 291C-14 he allegedly violated.

                                   VIII.

          In connection with the second question, Petitioner

argues that (1) the court’s examination of Lance was improper

because (a) it “did not simply ‘clarify’ any areas in the

prosecution’s or the defense’s line of questioning,” and (b) the

questioning exhibited bias in favor of the prosecution and

against the defense; (2) although Petitioner did not object to

the court’s questioning, the error constituted plain error

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because it violated Petitioner’s right to an impartial judge; and

(3) assuming the court’s questioning did not rise to the level of

plain error, Petitioner was deprived of his constitutional right

to effective assistance of counsel where defense counsel failed

to object to the court’s questioning.        We discuss these issues in

light of the probability of retrial in this case.

                                    A.

           This court has said that although a trial court may

within its discretion ask questions of the witnesses, “the trial

judge should not cross-examine a [witness] so extensively as to

give rise to jury bias.”      State v. Hutch, 75 Haw. 307, 326, 861

P.2d 11, 21 (1993) (quotation marks and citation omitted).             “When

the court assumes the role of a prosecutor, it violates the

fundamental due process requirement that the tribunal be

impartial[.]”   State v. Silva, 78 Hawai#i 115, 121, 890 P.2d 702,

708 (App. 1995).    However, a trial “judge is accorded

considerably greater discretion in the questioning of witnesses

in jury waived trials” because “[i]n such cases, it is the judge

who is the trier of fact” and “there is no possibility of jury

bias[.]”   Hutch, 75 Haw. at 326, 861 P.2d at 21 (quotation marks

and citation omitted).     Hence, in bench trials such as in this

case, “the judge’s duty to clarify testimony and fully develop

the truth in the case becomes particularly heightened.”            Id.

(quotation marks and citation omitted) (emphases added).            In this

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case, the court’s questioning of Lance seemingly “clarified”14

and “developed”15 the evidence.

             First, as recounted, Petitioner contends the court’s

questioning did not merely clarify other testimony inasmuch as

there was no testimony “regarding [] Khamlong’s personal

friendship with [Lee].”        Petitioner testified on direct

examination that Khamlong was at Shell when Petitioner arrived

immediately after the incident at Zippy’s.           He explained that

Khamlong and others were standing near his vehicle.             Petitioner

admitted that he “heard that maybe somebody had been run over?”

Petitioner related, however, that he did not believe that he had

struck anyone, in part, because “it was coming from the other

side[.]”     Petitioner’s defense counsel then clarified,

“[Khamlong] as being with the other side?”           Petitioner answered,

“Yes.”

             The court’s questioning regarding whether Khamlong “was

friends with Lee” clarified what Petitioner’s testimony

suggested, i.e., that Khamlong was affiliated with Lee or at

least one of Lee’s friends.        Hence, there was testimony

suggesting that Khamlong and Lee were friends.            The court’s



      14
            “Clarify” is defined, inter alia, as to make “clear” or “free of
confusion”; “to make understandable.” Merriam Webster’s Collegiate Dictionary
at 211.

      15
             “Develop” is defined, inter alia, as “to make clear . . . in more
detail.”   Merriam Webster’s Collegiate Dictionary at 316.

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questioning made “clear” and “free of confusion[,]” Merriam

Webster’s Collegiate Dictionary at 211, whether Petitioner had

meant that he did not believe someone had been run over because

Khamlong had said it, and Khamlong was a friend of Lee.

            Petitioner also contends that the court’s inquiry of

whether Petitioner first learned at Shell of someone being

injured was not a clarification of any testimony.           However, as

recounted, at that point, Perreira had already testified that at

Shell, Khamlong said something about “somebody being run over” by

a Murano.    Petitioner also stated that he heard that someone had

been run over, and suggested that this statement had originated

with Khamlong.

            On direct examination, Petitioner’s defense counsel

asked Lance, “As far as – you know today somebody was run over;

is that correct?”    Lance was asked whether he knew “anyone was

run over” “at that time[,]” Lance explained, “[P]eople [were]

telling us that somebody was run over.”         Defense counsel then

attempted to clarify, “When you say people telling you, that’s

over the telephone?”     Lance explained, “No, no.        It was one of

the guys at Shell gas station.”

            The court’s question, “At what point did you think

maybe that somebody had been run over” made more understandable

the “time” that Lance became aware of this, in light of defense

counsel’s inquiry of whether Lance knew anyone had been run over

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“at that time.”    Additionally, the court’s question regarding

whether it was Khamlong who “made [Lance] think that” clarified

who Lance was referring to when Lance said he learned that

someone had been run over by “one of the guys at Shell gas

station[.]”   Further, the court’s question as to whether Khamlong

had said this in front of Petitioner, revealed the details

regarding “at [what] time” Lance learned of this information, as

asked by defense counsel, i.e., whether it was said at Shell

while Petitioner was still present.        In sum, Petitioner is

incorrect that the court’s questioning of Lance did not clarify

or develop other testimony.

          Finally, Petitioner challenges the court’s questions

regarding, “Khamlong’s anger toward Petitioner upon hearing that

it was Petitioner’s vehicle that ran over [Lee], and Khamlong’s

actions of wanting to hit Petitioner as a result.”           It does not

seem that Khamlong’s anger toward Petitioner was brought out in

any of the other testimony.      However, it does not appear the

court expressly considered this testimony in adjudging Petitioner

guilty.

                                    B.

          Petitioner also asserts the court’s ruling indicates

the court relied on Lance’s testimony in rendering its decision

in this case.   As noted, the court concluded Petitioner was

guilty of the charged offense because he “knew and was quite

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aware of what he did[.]” The court explained that although

Petitioner might “now sincerely believe that he didn’t see or

know [] Lee was struck by his Murano[,]” the “facts show

otherwise beyond a reasonable doubt that he is guilty.”            Thus the

court held that, “[o]nce Petitioner reached [] Shell -- if not

before, he should have -- should have and did not call 911 and

follow what the statute required.”        The court noted that

Petitioner “did not report this for some time after he was able

to do so without harm to himself or to his car.”

           The court did not expressly reference Lance’s

testimony.   It may be argued that the court found that Petitioner

knew prior to reaching Shell that he struck Lee; otherwise the

court could not have concluded Petitioner should report the

accident to the police “[o]nce Petitioner reached [] Shell if not

before.”   In any event, although it cannot be ascertained

definitively whether the court considered Lance’s testimony, the

court would be acting within its discretion to do so inasmuch as

the court’s questioning of Lance only clarified and developed the

testimony.   Although Petitioner maintains the court exhibited

bias in favor of Respondent and against Petitioner, it cannot be

concluded on this record that the court was biased. Consequently,

the court did not plainly err in questioning Lance.           Because the

court did not err in questioning Lance, private defense counsel



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cannot be said to have been ineffective for failing to object to

the court’s questioning.

                                    IX.

          In light of the foregoing, the April 5, 2012 judgment

of the ICA, which affirmed the court’s November 30, 2010 Judgment

of Conviction and Probation Sentence, and the court’s aforesaid

judgment are vacated and the case is remanded to the court for

proceedings consistent with this opinion.


Summer M.M. Kupau,                   /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
Brian R. Vincent,
for respondent                       /s/ Simeon R. Acoba, Jr.

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard K. Perkins




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