State v. Maddox, 27523.

Decision Date11 December 2007
Docket NumberNo. 27523.,27523.
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Mickey A. MADDOX, Defendant-Appellant.
CourtHawaii Court of Appeals

Matthew S. Kohm, on the briefs, Wailuku, for Defendant-Appellant.

Brandon L.K. Paredes, Deputy Prosecuting Attorney, County of Maui, on the briefs, for Plaintiff-Appellee.

RECKTENWALD, C.J., WATANABE, and NAKAMURA, JJ.

Opinion of the Court by NAKAMURA, J.

This case arises out of an altercation between Defendant-Appellant Mickey A. Maddox (Maddox) and Dale Mota (Mota). Mota was the new boyfriend of Maddox's ex-girlfriend, Jane Barton (Barton). Maddox arrived unexpectedly at the residence shared by Barton and Mota late one evening, and a fight ensued between Maddox and Mota. During the fight, Maddox stabbed Mota in the chest with the knife blade of a utility tool. The knife blade penetrated very close to Mota's heart, but missed the heart as well as other important organs and vessels. Maddox and Mota accused each other of being the initial aggressor and Maddox claimed self-defense.

Maddox was indicted on charges of first degree assault and first degree burglary. After a jury trial, Maddox was found guilty as charged of first degree assault and guilty of the included offense of second degree criminal trespass.1 Prior to sentencing, Plaintiff-Appellee State of Hawai`i (the State) filed a motion for an extended term of imprisonment on the first degree assault charge, asserting that Maddox qualified as a persistent offender under Hawaii Revised Statutes (HRS) § 706-662(1) (Supp.2003), because he had two or more prior convictions for felonies committed at different times while he was an adult, and as a multiple offender under HRS § 706-662(4) (Supp. 2003), because he was being sentenced while already under sentence of imprisonment for a felony.2 The State also moved for a mandatory minimum period of imprisonment pursuant to HRS § 706-606.5 (Supp.1999) based on Maddox's status as a repeat offender.

The Circuit Court of the Second Circuit (circuit court) granted the State's motions and sentenced Maddox to an extended term of twenty years of imprisonment and a mandatory minimum of three years and four months on the first degree assault conviction. The circuit court sentenced Maddox to thirty days of imprisonment on his second degree criminal trespass conviction. In imposing sentence, the circuit court noted, among other things, that Maddox had engaged in a pattern of escalating violence and criminality. The court also ordered Maddox to pay $13,972.13 in restitution with the manner of payment to be determined by the Director of the Department of Public Safety.

Maddox appeals from the circuit court's Judgment entered on September 14, 2005. On appeal, Maddox argues that: 1) there was insufficient evidence to prove that Mota's injury "created a substantial risk of death," proof that was necessary to establish the "serious bodily injury" element for first degree assault; 2) the circuit court erred in permitting Mota's treating physician to testify that Mota's stab wound created a substantial risk of death because such testimony invaded the province of the jury; 3) the circuit court violated Maddox's right of confrontation when it disallowed cross-examination or inquiry into Mota's past to show his character for violence; 4) the Deputy Prosecuting Attorney (DPA) engaged in prosecutorial misconduct; 5) the circuit court committed numerous sentencing errors, including imposing an extended term of imprisonment in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and ordering restitution without determining Maddox's ability to pay and delegating the manner of payment to the Director of the Department of Public Safety; and 6) Maddox received ineffective assistance of counsel at trial and at sentencing.

We hold that there was insufficient evidence to prove that Mota's injury created a substantial risk of death and therefore vacate Maddox's conviction for first degree assault. Because, however, there was ample evidence to prove that Maddox committed the lesser included offense of second degree assault, we remand the case with instructions that the circuit court enter a judgment of conviction on the lesser included offense. We further hold that the circuit court erred in imposing an extended term of imprisonment and ordering the payment of restitution. We remand the case for resentencing on the lesser included offense of second degree assault.3

STATEMENT OF FACTS
I.

Maddox was in a boyfriend-girlfriend relationship with Jane Barton for about four months beginning in April 2003. For one month during their relationship, Maddox lived with Barton at a Kekolu Street residence. In July 2003, Maddox abruptly ended his relationship with Barton and reunited with his high school sweetheart, Lorrie Smith (Smith). Barton was hurt emotionally and had a difficult time coping with the breakup. For a period of time, Barton went almost every day to visit Maddox at the house Maddox was sharing with Smith.

Toward the end of September 2003, Barton stopped having contact with Maddox, and in October 2003, she began dating Mota. In early March 2004, Barton received tax documents in the mail addressed to Maddox. By this time, Barton was living with Mota at the Kekolu Street residence. Barton asked a friend of Maddox to notify Maddox about the tax documents. On March 4, 2004, Maddox went to Barton's house to pick up the tax documents. Barton was not home, so Maddox left a mailing address where Barton could send the tax documents with Barton's landlord, who also lived at the Kekolu Street residence.

The next evening, after 11:00 p.m., Maddox returned to Barton's residence. Barton testified at trial that she was getting ready for bed when she heard a car pull up, the dogs begin to bark, and the back gate open. Mota was asleep in the bedroom. Barton walked down the hallway to the kitchen and saw Maddox entering the residence through the back door. Startled, Barton said, "Oh my God, what are you doing here? Just to say hello?"

According to Barton, she then told Maddox that he had to leave, but Maddox just stood there. Barton heard Mota call out from the bedroom and ask her, "Janey, who's there?" Maddox replied in a loud voice, "Come out and find out." Then Maddox looked at Barton and told her, "Now I'm going to ruin your life."

Mota got up and walked to the kitchen where he saw Maddox. Mota testified at trial that he asked Maddox, "Who are you?" and that Maddox identified himself as "Mickey." Mota told Maddox that Maddox had to leave because it was late and Mota and Barton had to work the next day.

According to Mota, he put his hand on Maddox's lower back and led Maddox toward the back door. Maddox pushed Mota's hand away, got close to Mota's face, and put his hand on Mota's chest in a threatening manner. They pushed each other, Maddox lunged at Mota, and Mota was able to secure Maddox in a headlock. Mota told Maddox to settle down. Mota released Maddox from the headlock after fifteen or twenty seconds when Maddox indicated he had calmed down. After releasing Maddox, Mota told him, "I don't know who you think you are, coming over here at 11:30 at night, you know, without calling, because we gotta to go work in the morning, dude." In response, Maddox said, "Well, I'm going to show you who I, am." Maddox then turned, took out a Leatherman utility tool, and opened the knife blade.

Maddox looked at Mota with "a crazed look to his eyes." Fearing attack, Mota retreated to his bedroom and attempted to close the door. Maddox forced the door open. Maddox swung his arm around the door and stabbed Mota in the chest with the knife blade of the utility tool. They wrestled over the knife, with Maddox trying to stab Mota again. Mota was eventually able to take the knife away from Maddox and gain control of Maddox while they continued to grapple in close quarters. Mota tried to put Maddox to sleep by cutting off the blood flow to his brain with a sleeper hold. Maddox bit Mota twice in the chest and Mota tried to "will" the knife into the back of Maddox's neck and to stab Maddox in the arm pit. Mota was on top of Maddox when he heard the police arrive. Mota threw the knife out of reach and told the police that "[i]t's clear in here."

Barton had called 911 while Maddox and Mota were fighting in the bedroom. Maui police officer Darrell Ramos testified that he responded to Barton's Kekolu Steet residence at about 11:30 p.m. Officer Ramos testified that he encountered Barton, who appeared to be frightened. Barton told Officer Ramos that there were two people fighting in the house and that "Mickey has a knife." Officer Ramos separated Mota and Maddox and placed Maddox in handcuffs. Officer Ramos detected the odor of alcohol on Maddox's breath. Maddox staggered as he walked from the bedroom to the living room, and his speech was slurred. Officer Ramos observed blood on Maddox's shirt, a long scratch on his face, a cut on the back of his neck that was about a quarter inch long and a quarter inch deep, and abrasions on his arms. Officer Ramos arrested Maddox and transported him to the police station. At the station, Maddox declined treatment for his injuries.

II.

Mota was taken by ambulance to Maui Memorial Medical Center, where he was treated by Dr. David Nelson, the emergency room doctor. Dr. Nelson testified that he examined a two-inch-long stab wound to Mota's chest by putting his finger into the wound to see how deep it went. The wound track went down between Mota's ribs, inside the chest, and adjacent to the heart. Dr. Nelson felt that the depth and direction of the wound track made it a "very serious problem." The location of the stab wound raised concerns about potential damage to the heart, great vessels, lungs, liver, gall bladder, and stomach. A series of diagnostic imaging was conducted to determine "what had been cut inside [Mota's] chest."...

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