State v. Fergerstrom
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*** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--STATE OF HAWAI#I, Respondent-Plaintiff-Appellee vs. HARRY FERGERSTROM, Petitioner-Defendant-Appellant NO. 25579 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 02-1-0156) DECEMBER 1, 2004 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. PUBLISHED ORDER On November 8, 2004, petitioner-defendant-appellant Harry Fergerstrom (Fergerstrom) filed an application for a writ of certiorari, requesting that this court review the published opinion of the Intermediate Court of Appeals (ICA) [hereinafter ICA s Opinion ] in State v. Fergerstrom, No. 25579 (October 8, 2004), affirming the circuit court s December 13, 2002 judgment of conviction and sentence. Fergerstrom s application for a writ of certiorari alleges that the ICA s affirmance of the circuit court s judgment constitutes grave error because: (1) in holding that the circuit court did not err in prohibiting Fergerstrom from raising the first amendment as a defense before the jury, the ICA relied on precedent inapposite to the issue on appeal; and (2) the circuit court erred in ordering that a witness who testified in Fergerstrom s defense wear western clothing while on the stand, inasmuch as the order violated Fergerstrom s sixth amendment *** FOR PUBLICATION *** right to present witnesses favorable to his defense. Upon carefully reviewing the record and Fergerstrom s application, and having given due consideration to the arguments advanced and the issues raised, we resolve Fergerstrom s application as follows: (1) While the ICA correctly concluded that Fergerstrom s first amendment defense was not a question for the jury, its reliance on State v. Lee, 83 Hawai#i 267, 925 P.2d 1091 (1996), to dispose of Fergerstrom s constitutional question creates an obvious inconsistency with this court s precedent on the issue. We therefore clarify that State v. Hanapi, 89 Hawai#i 177, 182-184, 970 P.2d 485, 490-492 (1998), provides the appropriate authority for deciding Fergerstrom s first amendment claim. (2) In all other respects, the ICA s Opinion warrants no further clarification. Therefore, IT IS HEREBY ORDERED that the disposition of the Intermediate Court of Appeals is affirmed. DATED: Honolulu, Hawai#i, December 1, 2004. Steven D. Strauss for the defendant-appellant Harry Fergerstrom on the writ 2
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