24 P.3d 661 (Hawai'i 2001), 23556, State v. Valdivia

Docket Nº:23556.
Citation:24 P.3d 661, 95 Hawai'i 465
Opinion Judge:[9] The opinion of the court was delivered by: Levinson, J.
Party Name:STATE of Hawai'i, Plaintiff-Appellee, v. Jose Luis VALDIVIA, Defendant-Appellant.
Attorney:[7] On the briefs: Jon N. Ikenaga (Deputy Public Defender), for the defendant-appellant, Jose Luis Valdivia Caroline M. Mee (Deputy Prosecuting Attorney), for the plaintiff-appellee, State of Hawaii
Case Date:June 07, 2001
Court:Supreme Court of Hawai'i
 
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Page 661

24 P.3d 661 (Hawai'i 2001)

95 Hawai'i 465

STATE of Hawai'i, Plaintiff-Appellee,

v.

Jose Luis VALDIVIA, Defendant-Appellant.

No. 23556.

Supreme Court of Hawai'i.

June 7, 2001.

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[95 Hawai'i 468] Jon N. Ikenaga (Deputy Public Defender), on the briefs, for the defendant-appellant, Jose Luis Valdivia.

Caroline M. Mee (Deputy Prosecuting Attorney), on the briefs, for the plaintiff-appellee, State of Hawai'i.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

OPINION

LEVINSON, J.

The defendant-appellant Jose Luis Valdivia appeals from the judgment of the first circuit court, the Honorable Virginia Lee Crandall presiding, convicting him of and sentencing him for the offenses, inter alia, of kidnapping, in violation of Hawai'i Revised Statutes (HRS) § 707-720(1)(d) (1993), 1 and terroristic threatening in the first degree, in violation of HRS § 707-716(1)(c) (1993). 2 On appeal, Valdivia asserts that (1) the evidence adduced by the prosecution was insufficient to support his convictions of the offenses of kidnapping and first degree terroristic threatening, (2) the circuit court incorrectly instructed the jury regarding the definition of "threat," and (3) he was deprived of a fair trial due to prosecutorial misconduct, which was, Valdivia posits, so egregious that reprosecution should be barred. 3

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[95 Hawai'i 469] Specifically, Valdivia urges reversal of his conviction of the offense of kidnapping because the prosecution allegedly adduced insufficient evidence regarding his intent to restrain, as well as his intent to inflict bodily injury upon, Honolulu Police Department (HPD) Officer Brad Heatherly. Valdivia urges reversal of his conviction of first degree terroristic threatening because the prosecution allegedly adduced insufficient evidence that the statement he directed at HPD Officer Shannon Kawelo was a " true threat," insofar as it lacked any "imminent prospect of execution." Alternatively, Valdivia asserts that this court should vacate and remand his conviction of first degree terroristic threatening because the circuit court erroneously instructed the jury in two respects: (1) the court did not instruct the jury that a "true threat" must be uttered under circumstances that convey an "imminent prospect of [its] execution"; and (2) the court did not instruct the jury that it could consider, "[w]here a threat is directed at a police officer, . . . that police officers are trained to a professional standard of behavior that ordinary citizens might not be expected to equal." Lastly, Valdivia argues that he was denied a fair trial due to the deputy prosecuting attorney's (DPA's) misconduct during his opening statement, as well as during his closing and rebuttal arguments. Valdivia posits that the DPA's misconduct was so egregious that principles of double jeopardy 4 bar reprosecution of all the offenses of which he was convicted, see State v. Rogan, 91 Hawai'i 405, 984 P.2d 1231 (1999).

We hold that the prosecution adduced sufficient evidence to sustain Valdivia's convictions of the offenses of kidnapping and first degree terroristic threatening and that any misconduct in which the DPA engaged was harmless beyond a reasonable doubt. We further hold, however, that the circuit court insufficiently instructed the jury with respect to the offense of terroristic threatening and that the error was not harmless beyond a reasonable doubt. Accordingly, we vacate Valdivia's conviction of the offense of first degree terroristic threatening and remand for a new trial as to that offense. In all other respects, we affirm the circuit court's judgment of conviction and sentence in this matter.

I. BACKGROUND

Valdivia was charged by complaint with committing numerous offenses arising out of several incidents that occurred on November 3, 1999 as he drove down Ala Moana Boulevard and around Waikiki. We limit our discussion of the background facts to those relevant to the convictions Valdivia specifically challenges on appeal. Further facts germane to Valdivia's claims regarding the circuit court's jury instructions and prosecutorial misconduct are discussed infra in sections III.B and III.C, respectively.

In count 2 of the complaint, Valdivia was charged with the offense of kidnapping Officer Heatherly with the intent to inflict bodily injury upon him, in violation of HRS § 707 720(1)(d), see supra note 1. On November 3, 1999, Officer Heatherly was assigned to the Waikiki police "substation" and, while monitoring police radio communications, heard a description of Valdivia's vehicle, which was reported as possibly involved in an accident and fleeing from another police officer. Subsequently, a construction worker who had

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[95 Hawai'i 470] been working on Kalakaua Avenue came into the substation and reported that two vehicles outside the substation had possibly been involved in an accident and that the two drivers appeared to be arguing with each other. Officer Heatherly exited the substation and observed Valdivia's vehicle, which matched the description earlier broadcast over the police radio. Valdivia was sitting atop the hood of his vehicle.

Officer Heatherly testified that the driver's-side door of Valdivia's vehicle was open. Officer Heatherly approached Valdivia from the rear of Valdivia's vehicle and instructed Valdivia to remain where he was. Valdivia, rather than heeding the officer's direction, jumped off the hood and dashed towards the open door, which he reached before Officer Heatherly did. The two struggled with each other; Officer Heatherly testified that Valdivia struck him twice with a closed fist before he could return a blow to Valdivia's face. The scuffle continued as Valdivia attempted to enter his vehicle. While gaining the driver's seat of the vehicle, Valdivia was able to "grab" and "hold" Officer Heatherly's left arm. With his right hand, however, Officer Heatherly managed to spray Valdivia with half to three-quarters of a cannister of "pepper spray," which he testified had no effect upon Valdivia.

Officer Heatherly testified that the struggle continued after Valdivia gained the driver's seat of the vehicle and that Valdivia continued to "hold" his arm, despite his attempts to extricate it. Officer Heatherly explained that Valdivia had his arm "pinned" against the steering wheel and that he was trying to pull his arm away, "trying to get [it] free." Officer Heatherly, after spraying Valdivia with the pepper spray, observed that Valdivia was pulling an object, which he believed at the time might be a knife, from beneath the driver's seat. With his right hand, Officer Heatherly drew his firearm. At that point, Valdivia "immediately threw [the vehicle] into drive." Officer Heatherly testified that he "felt the car immediately start taking off" and that he "was frantically trying to get [his left] arm" free. Because he could not free his arm, Officer Heatherly grabbed the frame of the vehicle with three fingers of his right hand while still holding onto his firearm.

Officer Heatherly was dragged approximately thirty yards down Kalakaua Avenue. He testified that, while being dragged, he "was constantly yanking [his pinned arm] away." Eventually, his arm became free, and he rolled away from Valdivia's moving vehicle. Officer Heatherly testified that he did not know "if [he] was able to break free" or "if [he] was too heavy [and Valdivia] let go."

Several other witnesses, including the only witness called by Valdivia at trial, confirmed, albeit with some inconsistency, the general contours of Officer Heatherly's testimony, but none actually observed whether Valdivia was or was not holding or pinning Officer Heatherly's arm while the vehicle was moving and the officer was dragged down the street.

Count 3 of the complaint charged Valdivia with first degree terroristic threatening by threatening to cause bodily injury to Officer Kawelo in reckless disregard of the risk of terrorizing the officer, in violation of HRS § 707-716(1)(c), see supra note 2. In this connection, two police officers gave chase to Valdivia after Officer Heatherly was dragged down Kalakaua Avenue. The chase ended when Valdivia collided with a green vehicle on Sunset Avenue. After the collision, Valdivia exited his vehicle; it took four police officers to subdue and handcuff Valdivia due to his resistance to being apprehended. While the officers were engaged in physically overcoming Valdivia's resistance, Valdivia asserted several times that he was "going to fucking kill" the officers; he was not, however, charged in the present matter with any offense in connection with these utterances.

Officer Kawelo was one of the officers who assisted in arresting and handcuffing Valdivia. Officer Kawelo also transported Valdivia to a hospital because Officer Heatherly (as well as another officer during the arrest) had sprayed him with pepper spray. Officer Kawelo testified that, while on the way to the hospital and, forming the basis of the charge in count 3, once when in the hospital, Valdivia threatened to "kill" him.

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[95 Hawai'i 471] On the drive to the hospital, Valdivia was handcuffed and was further restrained by means of a bar--which Officer Kawelo explained acted as a "seat belt" and prevented Valdivia from "mov[ing] too much"--that the officer had placed over Valdivia because he had been difficult to subdue during the arrest. In the course of the drive, Valdivia, according to Officer Kawelo, said, "I'm gonna kill you, fucker," "I'm gonna kill you," and "You're dead, Officer." Officer Kawelo testified that Valdivia's threats were interspersed with thirty-second to two-minute pauses but that Valdivia kept "threatening [him] all...

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