Court overturns conviction, cites judge's comments

By Curtis Lum
Advertiser Staff Writer

The Hawai'i Supreme Court has thrown out a criminal contempt of court conviction of a Big Island man and ruled that the trial judge made "ill-advised" comments and acted improperly in court.

Sergio E. Afanasenko was found guilty on Dec. 15, 1999 of contempt of court for failing to appear for trial before Big Island District Judge Jeffrey Choi. Afanasenko was ordered to appear Aug. 5, 1998, for an "underlying criminal offense" of obstructing governmental operations, according to the high court's decision.

Details of the offense were not available, but Circuit Judge Riki May Amano on Aug. 18, 1999, granted Afanasenko's motion to dismiss the charge because of a lack of evidence. But Afanasenko still faced the contempt of court charge and appeared before Choi on Dec. 8, 1999.

Afanasenko told Choi the contempt charge should be dismissed because the underlying charge had been thrown out. He had been represented by Deputy Public Defender Theresa Marshall, but he fired her and represented himself.

During that hearing, Choi made several comments to Afanasenko that the state Supreme Court found objectionable.

Choi also failed to properly address Afanasenko's request that the case be transferred to another judge because Choi had "prejudged" the outcome of the case, the Supreme Court's ruling said.

Choi told Afanasenko that his motion would be a "waste of ink and paper" because the dismissal of the earlier charge was not a defense for the contempt of court charge. Choi also used phrases such as "stupid criminal" and "stupid arguments" in response to Afanasenko's request to dismiss the case, according to court documents.

Choi later denied the motion to dismiss the contempt charge, found Afanasenko guilty and fined him $225.

In a unanimous opinion yesterday, the Hawai'i Supreme Court described Choi's words as "ill-advised." The high court reversed the ruling and ordered a new trial before another judge.