In September 2018, Dae Han Moon was sentenced to a term of life in prison with the possibility of parole for the murder of another young man in a parking lot at Ala Moana Center during a drug purchase on Christmas two years earlier. During his trial, Moon’s defense attorney acknowledged Moon had fired the fatal shot, but argued it was an accident. The jury did not agree, and voted to convict.

In July 2019, while serving his sentence in that case, Moon received a “target” letter and was ordered to appear to testify before a federal grand jury secretly meeting to consider charges against Michael Miske, at that time known as the owner of Kamaaina Termite and Pest Control, and former owner and manager of the M Nightclub in Honolulu. Court records show Maui attorney Clarence McCurtdy Virtue was appointed by the federal court to represent Moon.

A year later, in July 2020, Moon was charged along with Miske and nine others in a 22-count indictment alleging a variety of criminal offenses stemming from the participation in a racketeering organization Miske allegedly controlled and directed. Lance Bermudez, also indicted in the Miske case, had been convicted of threatening witnesses to the Christmas shooting.

Tomorrow a court appointed attorney, Emmanuel Guerrero, will appear before the Hawaii Supreme Court to argue Moon’s earlier murder conviction should be overturned.

Moon argues that the State of Hawai?i was required, and failed at trial, to prove that the decedent was pronounced dead in accordance with HRS § 327C-1. The circuit court found that the State did not have to adhere to the requirements set forth in HRS § 327C-1 to prove the element of “death” under the Hawai?i Penal Code. Moon contends, in relevant part, that the circuit court erred in concluding that HRS § 327C-1 does not apply to criminal actions.

This is the second time this year the Supreme Court is hearing a case challenging a criminal conviction on the grounds that the death had not been properly documented as required by law.

The same issue was raised in the State of Hawaii v Aiven Angei, which was argued on March 5. The Supreme Court has not yet made a ruling in that case, but that decision will obviously have an impact on Moon’s appeal.

Tuesday’s oral arguments will be broadcast live on the Judiciary’s YouTube channel at 2 p.m.

In addition to the declaration of death issue, Guerrero’s opening brief cites five additional possible points of error for the court to consider.

• Guerrero argues the trial court “erred in denying Moon’s motion to strike the testimony of Dr. Kobayashi for failure to produce the medical records upon which he relied in forming his opinion.”

As noted above, the Court overruled the objection noting that the records could be produced on cross examination. But on cross examination Dr. Kobayashi suggested that the records were not preserved (and, therefore, could not be produced). At the conclusion of Dr. Kobayashi’s testimony, counsel moved to strike it on grounds that the records were not produced. That motion was denied without comment.

As it turns out, after the trial it was learned that Dr. Kobayashi had the records all along but simply “forgot.” Defense moved to dismiss because those records were not produced at trial. The State opposed the motion arguing that the records were not in their possession and when the documents were requested in pretrial discovery, they used their best efforts to no avail. The State also argued that if MOON wanted the records, he could have subpoenaed them from Queen’s.

• The trial court should have instructed the jury on the issue of “causation.”

As argued, at the time of the grand jury, Decedent was not dead as a matter of law because no two physicians had certified that he had suffered “irreversible cessation of all functions of the entire brain, including the brain stem.” H.R.S. § 327C-1(b). Certainly, though, he must have been dead after Legacy of Life removed his heart, lungs, liver, kidneys and other organs and tissues. The question thus arises whether or not he would have recovered if his organs had not been removed.

Defense counsel argued that a judgment of acquittal because there was no proof that MOON had caused Decedent’s death. The prosecutor understood that this was an argument as to the removal of Decedent’s organs was an independent intervening cause of death. The Court properly denied the motion for acquittal because there was ample evidence that the shot to Decedent’s head was a cause of death. Decedent would not have been in the hospital and his organs would not have been removed had he not been shot in the head. Nevertheless, it was a jury question as to what caused the death of Decedent.

• Moon was denied his constitutional right to trial by jury when four Korean potential jurors were excused, and Guerrero specifically argues that “a prima facie case” had been made that one juror’s “exclusion was racially motivated and that the State’s explanation of the exclusion on justifiable neutral grounds is not supported by the record.”

• Guerrero argues that the trial judge did not sufficiently probe whether Moon’s waiver of the right to testify in the trial “was truly made voluntarily.”

• Finally, Guerrero argues that Moon’s defense counsel, Victor Bakke, “provided ineffective assistance of counsel by conceding in opening statement that moon was the shooter thereby waiving the defense that moon was not the person who shot decedent.”

Meanwhile, Moon’s court-appointed attorney in the Miske case has asked to withdraw “due to a material breakdown in the attorney-client relationship.”

In a declaration filed in federal court on August 6, attorney Cary Virtue said there had been an “irreparable breakdown in the attorney-client relationship” and that “an effort to repair the relationship was not successful.”

In a telephone hearing on Friday, August 13, Magistrate Judge Kenneth Mansfield granted Virtue’s motion and removed him from the case. A replacement will now be named to represent Moon.

Also see: Miske Case Weaves Together Disparate Strands Of Past Crimes, Civil Beat, January 10, 2021.