Judge overturns
Kaua’s life term

The hostage-taker’s extended term
is ruled contrary to federal law

A federal judge's recent decision to overturn a life term for a man convicted of shooting at police in an armed standoff could affect other cases in state court where defendants have received extended terms, defense attorneys say.

U.S. District Judge Susan Mollway ruled Dec. 9 that the extended term received by Wayman Kaua was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States."

She concluded that his extended sentence was based on facts not found by a jury, but by the trial judge.

City Prosecutor Peter Carlisle said yesterday he intends to appeal Mollway's decision.

Carlisle is worried that the decision could affect cases such as that of Shane Mark, who was convicted last year of fatally shooting police officer Glen Gaspar.

Kaua, who was represented by federal public defender Peter Wolff, argued that his sentence violated his federal constitutional rights.

The defense cited a June 2000 case in which the U.S. Supreme Court ruled that a jury, not a judge, must decide facts that increase a defendant's sentence.

Kaua was charged with first-degree attempted murder for shooting at three police officers during a 22-hour standoff in which he barricaded himself, his wife and another resident in a Pacific Palisades home. It was the second time he had taken someone hostage with a gun. The standoff ended when police wounded Kaua with a gunshot to his face.

A jury convicted him of multiple offenses, including the reduced charge of attempted manslaughter as well as kidnapping, first-degree terroristic threatening and firearm offenses.

After a hearing, Circuit Judge Wendell Huddy ruled that Kaua should be sentenced as a multiple offender to an extended term of life imprisonment, rather than 20 years, the statutory maximum term for attempted manslaughter. He cited Kaua's history of substance abuse, violent and threatening behavior, and access to firearms in finding that the extended term was necessary to protect the public.

The Hawaii Supreme Court upheld Kaua's conviction and extended sentence. The high court noted that the facts showing the need to protect the public were "extrinsic" -- not an element of the crimes Kaua was charged with -- and did not have to be determined by a jury.

Mollway disagreed.

She said the U.S. Supreme Court case, known as Apprendi, applies to both the elements of an offense and sentencing factors.

Wolff lauded the court's ruling, calling it "entirely correct." While he has yet to discuss the ruling with Kaua, Wolff said he assumes he will be happy about being resentenced.

If the state is unsuccessful in its appeal, a jury will have to be seated to decide whether Kaua's incarceration is necessary for the protection of the public, Carlisle said.

"Since this guy has two times taken hostages with a gun, I suspect this is something that almost anyone in the state of Hawaii would be able to conclude," he said.

How many cases could be affected by Mollway's decision is not clear, but it does not appear to be many, said Deborah Kim, supervisor for the appellate division in the state public defender's office.

Prosecutors typically seek extended terms for defendants who are considered dangerous, not just in murder cases. But the courts do not commonly grant them, Kim said.

The public defender's office has raised similar arguments objecting to extended sentences in Mark's and two other cases that were heard and denied by the trial courts, Kim said. Those cases have yet to be appealed to the Hawaii Supreme Court, she said.

Mark was convicted last year of second-degree murder in Gaspar's death. The court found Mark was a danger to the community in granting the extended term.

Kim said her office could ask the court to reconsider its decision in Mark's case based on Mollway's ruling.

Under Mollway's decision, Kaua is entitled to have his life sentence reduced to 20 years, "which is what it should have been in the first place and was authorized by the jury's verdict," Wolff said. Still, "he has a lengthy sentence to serve whether they appeal or not appeal."