The lawyer for the man who was on trial for allegedly stealing Honolulu Police Chief Louis Kealoha’s mailbox is accusing Kealoha of intentionally causing a mistrial.
First Assistant Federal Defender Alexander Silvert, the defendant’s attorney, said Kealoha’s testimony was intended to prevent a not-guilty verdict from undercutting his wife’s position in a related state civil case.
The civil case against Kealoha’s wife, Katherine, stems from a reverse mortgage on her grandmother’s Maunalani Heights home. Trial in that case is scheduled to begin later this month.
A Honolulu Police Department spokeswoman said that on the advice of the federal prosecutor, Chief Kealoha declined to respond to the accusation.
U.S. District Judge Leslie E. Kobayashi declared the mistrial Thursday after Kealoha made an unsolicited comment to the jury about the criminal history of the man accused of stealing his mailbox.
Gerard Puana, 54, the uncle of Kealoha’s wife, is charged with destroying the mailbox that was outside the Kealohas’ former Kahala residence.
Thursday was the first day of the trial. Chief Kealoha was the government’s second witness.
Assistant U.S. Attorney Lawrence Tong played a surveillance video for the jurors showing someone pull up in front of the Kealohas’ Kealaolu Avenue home in a light-color, four-door sedan, get out of the car, remove the mailbox off its support post, put the mailbox in the car and drive off.
Because of the video’s low resolution, the model of car and license plate are not clear. The recording has a date and time stamp of June 21, 2013, at 11:31 p.m. Details are difficult to distinguish because the video was recorded at night.
Anything bright, including clothing and the car’s lights, against the night’s darkness wash out in the video and appear white.
Kealoha testified that the man in the video is Puana, someone he has known for more than 30 years. He said the man in the video wears the same type of clothes — baggy cargo shorts, long-sleeve shirt and baseball cap — favored by Puana, and has the same "weightlifter’s" walk.
Puana’s lawyer, Silvert, told the jurors in opening statements Thursday that the man in the video is not Puana and that defense witnesses will testify to that.
When Tong asked Kealoha to compare how Puana looked in June 2013 with how he looks today, Kealoha said Puana appears more heavyset today but that the video shows "how he looked when he was charged and convicted of breaking into his neighbor’s house."
Silvert immediately objected.
Kobayashi instructed the jurors to disregard Kealoha’s last comment before sending them out of the courtroom on recess.
Court rules of evidence prohibit the government from introducing evidence of a defendant’s past crimes or behavior to prove his guilt of a similar crime or behavior.
The rules provide an exception if the evidence is used not to prove guilt, but motive, intent, opportunity and other factors. The government must also provide advance notice to the defendant, usually before trial, that it intends to use such evidence so the defendant can oppose.
Kobayashi said the government gave no notice of its intent to introduce Puana’s criminal history into evidence and that Puana had not indicated whether he was going to testify to defend himself. She also said that because the prejudice to Puana from Kealoha’s comment is too great to overcome by her instruction to the jurors, "I have no choice but to grant a mistrial."
Police arrested Puana in June 2011 for an alleged unauthorized entry into a dwelling after a neighbor said he entered her home and yelled at her about telling someone to move a car. Puana pleaded no contest in December 2011, and in March the following year, a state judge sentenced him to probation.
In June 2012 the same judge withdrew the sentence and granted Puana a deferral of his plea.
Kobayashi scheduled a new trial for May.
Silvert said prosecutors prepare their witnesses on what they can and cannot say, and that police officers know that because they frequently testify as witnesses. He said both inside and outside court that he believes Kealoha intended to cause the mistrial.
"I believe that an officer of (Kealoha’s) stature, his years of service, knew perfectly well that he was not allowed to make that comment," Silvert said outside the courtroom.
Tong said in court that he did not elicit the improper comment and had no idea Kealoha was going to make it. Kobayashi and Silvert agreed.
When asked by a reporter after the mistrial declaration, former Honolulu Prosecutor Peter Carlisle said that to prove whether Silvert’s accusation is true would require an intensive investigation of HPD training and interviews of all the people who had spoken to and prepared Kealoha for his testimony. He said the big question is, Who would go to all that trouble?
Silvert suggests the Honolulu Police Commission, Ethics Commission and state Senate.
The mistrial precludes testimony from Katherine Kealoha, whose name is also on the government witness list. She is a deputy Honolulu prosecutor on indefinite personal leave from her job as head of the department’s career criminal unit.
Puana and Kealoha’s grandmother Florence Puana are suing Kealoha over money from a reverse mortgage she arranged on her grandmother’s home in Maunalani Heights.
