429 P.3d 606 (Hawai’i App. 2018), CAAP-16-0000009, State v. Chung

Docket Nº:CAAP-16-0000009
Citation:429 P.3d 606, 143 Hawai‘i 284
Party Name:STATE of Hawai‘i, Plaintiff-Appellee, v. Matthew K. CHUNG, Defendant-Appellant
Attorney:Jon N. Ikenaga, Deputy Public Defender, for Defendant-Appellant. Donn Fudo, Deputy Prosecuting Attorney, Honolulu, for Plaintiff-Appellee.
Judge Panel:By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.
Case Date:October 31, 2018
Court:Court of Appeals of Hawai'i, Intermediate
 
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Page 606

429 P.3d 606 (Hawai’i App. 2018)

143 Hawai‘i 284

STATE of Hawai‘i, Plaintiff-Appellee,

v.

Matthew K. CHUNG, Defendant-Appellant

No. CAAP-16-0000009

Intermediate Court of Appeals of Hawai‘i

October 31, 2018

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO., 14-1-0769).

On the briefs:

Jon N. Ikenaga, Deputy Public Defender, for Defendant-Appellant.

Donn Fudo, Deputy Prosecuting Attorney, Honolulu, for Plaintiff-Appellee.

By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.

MEMORANDUM OPINION

Defendant-Appellant Matthew K. Chung (Chung) appeals from the Judgment of Conviction and Sentence (Judgment) entered against him and in favor of Plaintiff-Appellee the State of Hawai‘i (State) on December 9, 2015, in the Circuit Court of the First Circuit (Circuit Court).1 After a jury trial, the Circuit Court entered the Judgment convicting Chung of: (1) Attempted Murder in the Second Degree, in violation of Hawaii Revised Statutes (HRS) § § 705-500 (2014)2, 707-701.5 (2014)3, and 706-656 (Supp. 1993 and 2013)4 ; (2) Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21 (2011)5 ; and (3) Place to Keep Pistol or Revolver in violation of § 134-25 (2011).6

I. BACKGROUND

On May 8, 2014, Chung was indicted by grand jury on one count of Attempted Murder in the Second Degree, one count of Carrying or Using a Firearm in the Commission of a Separate Felony, to wit, Attempted Murder in the Second Degree, and one count of Place to Keep Pistol or Revolver, arising out of an incident on April 26, 2014, in which the complainant suffered gunshot wounds to the chest and arm purportedly while riding as a passenger in Chung’s vehicle.

HPD Criminalist Rebecca Bryant (Bryant) testified first for the State, In April 2014, Bryant worked as an HPD evidence specialist, whose duties included responding to the scene of an investigation, photographing and diagraming the scene, recovering evidence, processing for latent fingerprints, and recovering biological evidence.

On April 26, 2014, she was called out to Pali Momi Hospital, to the emergency room valet area, to take photographs and accept further direction from the detective on scene. When she arrived at approximately 5:50 p.m., she noted an orange cone placed over "an absorbent material with something that appeared to be blood-like." She photographed the material where it lay on the ground and swabbed it for processing. She also photographed the area.[7] She also received clothing from an officer on the scene, consisting of a shirt, a pair of shorts, and a pair of shoes, all of which showed a blood-like substance on them. She photographed the clothing and sealed the items for processing.

Later that day, Bryant reported to the Kapolei police station and photographed the exterior and interior of a white Kia Rio. Bryant collected gunshot residue samples from the Kia, and she tested the ceiling of the car and the driver’s side seat, focusing on the head rest and the arm rest, the front, right passenger seat, and the backseat. Also at the Kapolei police station, on April 27, 2014, Bryant collected gunshot residue samples from Chung. Finally, Bryant reported to Queen’s Hospital to photograph the complainant, Shylo Quemado-Moniz (Shylo). She photographed Shylo’s left side, where he showed wounds to his torso and left arm.

Bryson Galicinao (Galicinao) testified next. On April 26, 2014, Galicinao was working as a valet at the Pali Momi Hospital, where his duties included assisting the emergency room patients when they arrived at the entrance. While standing behind the podium, a white car "going pretty quick down the ramp" entered the valet area. Galicinao witnessed one man driving and one sitting in the backseat.8 Upon parking in the valet area, the driver exited the vehicle and said, "Guys, I need help. My friend is hurt." The driver then opened the door and assisted the valets in taking the injured man from the backseat. The injured man was bleeding "everywhere" so Galicinao assisted him quickly. The valets took the injured man directly to the emergency room for treatment, at which time the driver left.

Galicinao described the driver’s demeanor as "scared." During cross-examination, Galicinao described that the driver of the car seemed to be in a hurry but observed that he parked in the correct place in the valet area.

Emergency Room Doctor Misha Kassel (Dr. Kassel) testified that he is an emergency medical physician at Pali Momi and Kapiolani. On April 26, 2014, Dr. Kassel treated Shylo at approximately 4:15 p.m. Dr. Kassel observed that Shylo was conscious and breathing but that there were gunshot wounds to his chest and his left arm. He appeared to Dr. Kassel to be coherent and able to communicate.

Dr. Kassel testified that the wounds on Shylo’s left chest initially caught his attention, as "the location is concerning because on the left-side of your chest you have your heart." He checked Shylo for "airway, breathing, and circulation, checking the pulses and stuff [and] all those things were intact." Dr. Kassel ordered an X-ray to check for bullet fragments or whether there was possibly a small lung collapse he was unable to hear. He requested an ultrasound to check for fluid collecting around the heart.

He assessed Shylo further for any other urgent operating needs but most of his preliminary bedside findings were negative. The X-ray, however, was not normal, showing several little bullets or "BBs ... kind of like a bird shot" near Shylo’s heart, inside the chest cavity. Shylo did not require immediate surgery, but Dr. Kassel transferred Shylo to a higher level of care at Queen’s Hospital, "since they’re a trauma hospital."

In his physician’s report, Dr. Kassel indicated that Shylo’s wounds created a substantial risk of death. When asked to explain his reasons for doing so, Dr. Kassel testified that "with gunshot wounds to the chest cavity, there’s always a significant chance of death happening. ... [H]aving a bunch of small bullets inside the chest cavity posed a risk to life, in my opinion." Dr. Kassel acknowledged writing on Shylo’s form that there was "no active bleeding" from Shylo at the time he was treated.

During cross-examination, Dr. Kassel was asked to further explain the factors attributing to a conclusion of whether a wound carried a substantial risk of death. In the case of two gunshot wounds affecting the left side of the chest, near the heart, Dr. Kassel believed that "any ER physician" would say it poses a substantial chance of death. However, he explained certain exceptions to that conclusion, depending on how deep the wound has entered into the chest cavity, if at all, the size of the ammunition that penetrated the chest, whether the bullet(s) hit the heart or a major artery, and the physical condition of the individual, including his or her age. Nonetheless, Dr. Kassel noted that even if the victim is younger, "[i]t doesn’t mean that a gunshot wound to your chest does not pose a threat to your life." "[I]f you have ... a gunshot wound to the chest and it enters the chest cavity, I’m going to check that same box whether you’re two years old or you’re 90 years old."

In assessing the wound to the left arm, Dr. Kassel noted that no major artery was hit and that those injuries did not create a substantial risk of death. Dr. Kassel also ordered an X-ray of the arm and recalled that it did not appear to have any broken bones. Dr. Kassel was not certain whether there were similar pellets in Shylo’s arm as there were in his chest.

Joshua Arakawa (Josh) also testified for the State. Josh and Chung became friends after high school, approximately three or four years prior to the shooting. Josh also knew Shylo. Josh would hang out with Chung and Shylo on a regular basis in April 2014 and had considered them both to be his good friends.

When questioned about the incident on April 26, 2014, Josh testified that he could not recall whether he was hanging out with Shylo and Chung. He was able to identify Chung in the courtroom but denied hanging out with him "every day." He testified that he did not know if he was in the car when Shylo was shot and that he did not remember Chung shooting Shylo. He did not remember speaking with Detective Kalahui about the incident. When presented with his statement to the police, Josh acknowledged he had seen it, but he forgot having made the statement. He said he was "doing choke drugs," including methamphetamine, marijuana, "crack," and cocaine, and "was just saying stuff." He testified that he was not paying attention to the days he...

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