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State v. Hauge11/18/2003
FOR PUBLICATION
The defendant-appellant Steven M. Hauge appeals from the judgment of the first circuit court, the Honorable Marie N. Milks presiding, convicting him of and sentencing him for the offense of burglary in the first degree, pursuant to Hawaii Revised Statutes (HRS) § 708-810(1)(c) (1993). On appeal, Hauge contends that: (1) the deputy prosecuting attorney (DPA) committed prosecutorial misconduct, depriving Hauge of his right to a fair trial, by improperly cross-examining Hauge and by stating in closing argument that Hauge failed to "explain away" the prosecution's deoxyribonucleic acid (DNA) evidence; (2) the circuit court erred by improperly commenting on the evidence and misstating the testimony of the prosecution's witnesses during defense counsel's closing argument, thereby violating Hauge's right to a fair and impartial trial; (3) the circuit court erred in denying Hauge's motion to suppress the DNA evidence that was obtained in an unrelated robbery case and used in the present matter without Hauge's consent or a judicial determination of probable cause; and (4) the circuit court erred in granting the prosecution's motion to extend Hauge's sentence, pursuant to HRS § 706-662(1) (Supp. 2000), from ten to twenty years of imprisonment, inasmuch as the finding that an extended term was necessary for the protection of the public should have been proven beyond a reasonable doubt before the jury. The plaintiff-appellee State of Hawaii [hereinafter, "the prosecution"] responds that: (1) the DPA's remarks did not constitute misconduct because they neither infringed on the jury's right to evaluate credibility nor shifted the burden of proof to Hauge; (2) the circuit court's misstatement of the evidence during defense counsel's closing argument was harmless beyond a reasonable doubt when considered in light of the entire record and, therefore, did not violate Hauge's right to a fair and impartial trial; (3) the circuit court's denial of Hauge's motion to suppress the DNA evidence was not error, inasmuch as the police were not constitutionally prohibited from using a DNA profile lawfully obtained in a prior case in a subsequent and different investigation; and (4) a jury determination was not constitutionally necessary to extend Hauge's sentence, inasmuch as Hawaii law is consistent with relevant federal precedent, and due process does not require such a determination.
For the reasons discussed infra in Section IV, we believe that Hauge's arguments are without merit. Accordingly, we affirm the circuit court's judgment of conviction and sentence.
I. FACTUAL BACKGROUND
On January 23, 2001, Wallace and Marcella Ordway were guests in Room 714 of the Ocean Resort Hotel , located at 175 Paoakalani Avenue in Waikk. At approximately 7:00 a.m., the Ordways prepared their luggage in their room for a trip to Kauai and then went downstairs for breakfast. At approximately 7:30 a.m., the Ordways returned to their room to find that the bellman had not yet removed their luggage. The bellman informed the Ordways that he had checked Room 714 on two separate occasions and was informed by the "'gentlemen inside the door'" that the luggage was not ready.
Upon reentering the room, the Ordways discovered that their luggage had been cut open and their belongings strewn across the floor. Mrs. Ordway observed broken glass on the floor and blood on the inside door, bathroom counter, sliding patio doors, and various places on the luggage. The Ordways found one suitcase in the bathroom, sliced open and stained with blood; their clothing also was bloodstained. The Ordways testified that the blood was not theirs. The burglar stole their Sony camcorder, four hundred dollars in cas
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