A judge ruled Thursday a murder defendant and his lawyer are not entitled to the dates of birth and social security numbers of witnesses in the case, nor are they entitled to their personal phone numbers — including the personal number of an FBI agent — unless the witnesses authorize prosecutors to release that information to them.
The ruling by Hilo Circuit Judge Henry Nakamoto came in the case of Kalani Lono Kaohimaunu. The 37-year-old Kaohimaunu is charged with second-degree murder, use of a firearm in the commission of a felony, being a felon in possession of a firearm and illegally carrying a firearm in connection with the shotgun slaying of 39-year-old Keola Penovaroff.
The fatal shooting took place on Nov. 26, 2015, Thanksgiving night, outside the West Kawailani Street home of Penovaroff’s girlfriend, Venus Mitchell. Mitchell and her mother, Bonnie Mitchell Fox, were renting from Kaohimaunu’s mother, Kathie Kaohimaunu, and court records indicated the parties were engaged in a landlord-tenant court dispute at the time.
Kaohimaunu’s attorney, Jeffrey Hawk, had filed a motion to compel discovery, and told the judge he wanted unredacted copies of a report provided him by Deputy Prosecutor Joseph Lee.
“The report contains numerous witnesses that either have first-hand knowledge or second-hand knowledge of the events that occurred,” Hawk argued. “The original report that I got was redacted. They took out all dates of birth, Social Security numbers and phone numbers of these witnesses.” Hawk said he went back to Lee and “got a report that was a little less redacted.”
“I think we need to level the playing field so Mr. Kaohimaunu has the same information that the prosecutors have,” he said.
Deputy Prosecutor Rick Damerville said he’d filed a reply to Hawk’s motion and “that response is the law in the state of Hawaii, in my view.” He added court rules “do not require prosecutors to turn over the information that he’s requesting except for good cause.”
“You’re not going to get an FBI agent’s personal phone number. If he wants to get the work phone number of the FBI agent, he can get up on Google or in the phone book and it will tell you what the phone number of the FBI office in Kapolei (Oahu) is,” Damerville continued. “… If you’re not (able) to reach this person because you don’t have the phone number, our practice is to call that particular witness at the number that we have — many times it changes. But we call that number and ask for permission to give that number over. And if they say yes, we give them the phone number. If they say no, we try to set up an interview with that particular witness for the defense attorney. I don’t require myself to be there. If he wants to talk to that witness, that’s OK.
“… There’s no showing why he needs the dates of birth when the information provided shows the age of the person. So what is the particular need for the date of birth for a particular person other than their age? I don’t see any. (The law) only requires us to hand over their last known address of witnesses. That’s it.”
Hawk argued the state’s approach to releasing information is dragging out the case.
“The defendant’s been in custody for almost four years now,” he said. “He wants to be able to investigate this case in the most expeditious manner possible. The tortured series of steps that Mr. Damerville suggests for me to investigate this case costs the court money, it costs Mr. Kaohimaunu more time in custody. … All I’m asking for is the same information that the prosecutor has.”
Damerville countered that Social Security numbers are “protected information” under state and federal law. He said Kaohimaunu has been incarcerated for four years without going to trial “because of his choice of going from one attorney to the next.”
Hawk is Kaohimaunu’s fourth attorney since being charged.
“Put another way, the defense’s procrastination does not become the state’s emergency,” the prosecutor said.
Nakamoto then denied the motion to compel “as to dates of birth (and) Social Security numbers.’
“Those are confidential information that need not be disclosed,” the judge said. “Regarding phone numbers, if defense counsel cannot locate or get in touch with these folks with the information provided, you can follow normal procedure, which is contact Prosecutor’s Office. And if authorization is given, Mr. Damerville or someone from this office will provide that information. … At that point, Mr. Hawk can talk to those folks if they want to talk to him.”
Nakamoto asked Hawk if he wanted to set a trial date, and the latter replied he needed more time. The judge scheduled the next hearing for 8:30 a.m. June 15.
Email John Burnett at jburnett@hawaiitribune-herald.com.
