80 Hawai'i 126, State v. Malufau

Decision Date18 October 1995
Docket NumberNo. 17867,17867
Citation906 P.2d 612,80 Hawaii 126
Parties80 Hawai'i 126 STATE of Hawai'i, Plaintiff-Appellee, v. Siaosi MALUFAU, Defendant-Appellant.
CourtHawaii Supreme Court

R. Richard Ichihashi, on the briefs and on the motion for reconsideration, Honolulu, for defendant-appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

Defendant-Appellant Siaosi Malufau appeals from his conviction, after a jury trial, of assault in the first degree under Hawai'i Revised Statutes (HRS) § 707-710(1) (Supp.1992). 1 Malufau filed this timely appeal after the circuit court denied his motion for judgment of acquittal, or in the alternative for a new trial, on January 4, 1994. Based on the following, we vacate and remand.

I.

Rufus Mountford, Ramona Ai, and another woman named "Tammy" were seated at a booth in Leon's Arctic Bar on June 20, 1990, when Malufau approached and asked Ramona to dance with him. Ramona agreed but about halfway through their dance, she got upset and stomped back to the booth. Malufau came over to apologize, but Ramona refused to dance with him anymore. Malufau then sat down and started to "hit" on Tammy. It was apparent to Mountford, Ramona, and Tammy that Malufau was drunk. In order to avoid any problems, Mountford ignored Malufau, who left the booth about twenty minutes later.

When the bar closed, Tammy offered to cook breakfast for Ai and Mountford, and all three proceeded to walk down Mokauea Street toward Tammy's apartment. Tammy noticed that Malufau was following them and alerted Mountford. Mountford turned and saw Malufau hiding behind a Coca-Cola vending machine with a bottle in his hand. When Malufau came closer, Mountford told him that it was a private party and asked him to leave them alone. The next thing Mountford knew was that he was lying on the ground, his head was spinning, and he could feel a warm liquid on himself. Although Mountford could not move or open his eyes, he felt himself being kicked repeatedly in the left shin, right thigh and chest area.

When the police arrived, they took Mountford to St. Francis Hospital where he was examined by John Walczak, M.D. Dr. Walczak removed two pieces of amber glass from a two-inch gash on the right side of Mountford's forehead and closed the wound with five stitches. When Mountford saw Malufau again at the bar on July 7, 1990, he quickly summoned the police, whereupon Malufau was arrested and charged with assault in the first degree.

At trial, Dr. Walczak testified, over a relevancy objection by the defense, that without treatment Mountford would have likely suffered "serious permanent disfigurement." 2 He further opined that without treatment the wound probably would have become infected, particularly because of the foreign bodies found therein, and that the resulting scar would have been larger than usual. Finally, Dr. Walczak testified that any scar that is visible at a normal social distance would amount to a disfigurement.

II.

Malufau contends (1) that the circuit court erred in allowing Dr. Walczak to testify about what would have happened if Mountford's wounds had not been treated, and (2) that there was insufficient evidence of a serious, permanent disfigurement to support his conviction of assault in the first degree. We agree with both of Malufau's contentions. 3

A.

Pursuant to Hawai'i Rules of Evidence (HRE) Rule 402, "[e]vidence which is not relevant is not admissible." Thus, the first issue in the instant appeal is whether Dr. Walczak's testimony regarding the severity of the injuries that Mountford would have sustained in the absence of treatment was relevant.

HRE Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." On appeal, "the question of whether evidence is relevant under HRE Rule 401 is reviewed under the right/wrong standard." State v. Toro, 77 Hawai'i 340, 347, 884 P.2d 403, 410 (App.), cert. denied, 77 Hawai'i 489, 889 P.2d 66 (1994).

Whether a particular fact "is of consequence to the determination of the action" in criminal cases will often turn on the elements of the offense. See, e.g., State v. Alston, 75 Haw. 517, 539-40, 865 P.2d 157, 168-69 (1994) (relying on (1) the meaning of the "threaten" element of the offense of terroristic threatening and (2) the fact that actual terrorization is not an element of the offense in holding that evidence of a threat that was never communicated to the person against whom it was made was nonetheless relevant in a prosecution for terroristic threatening); State v. Pinero, 75 Haw. 282, 289-90, 859 P.2d 1369, 1373 (1993) (relying on meaning of the "arising out of the performance of official duties" element of the offense of first degree murder in holding that evidence regarding the existence of a search warrant was not relevant in prosecution for first degree murder). Thus, we must examine the elements of the offense at issue in the instant case.

HRS § 707-710(1) defines the offense at issue, providing that "[a] person commits the offense of assault in the first degree if he [or she] intentionally or knowingly causes serious bodily injury to another person." The sole "element" of this offense is a result of conduct. See HRS § 702-205 (1993). 4

When the definition of an offense includes the result of conduct as an element of the offense, the prosecution bears the burden of proving beyond a reasonable doubt that the specified result actually occurred. See HRS § 701-114 (1993). 5 In a murder case, for example, it is intuitively obvious that the prosecution must prove that the victim actually died. In such a case, proof that an accused's conduct would have caused the death of the victim if the victim had not received medical attention would not be relevant to prove that the accused, in fact, caused the death of the victim; only evidence that the death of the victim actually resulted from the accused's conduct would be relevant. Thus, when a result of conduct is an element of the offense charged, proof that the result would have occurred but did not because of some intervening event is irrelevant to that charge.

Hence, in order to convict Malufau of assault in the first degree, the prosecution was required to prove beyond a reasonable doubt that "serious bodily injury" to Mountford actually resulted from Malufau's conduct. "Serious bodily injury" is defined in HRS § 707-700 as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

In the instant case, the prosecution sought to prove that Malufau inflicted an injury that caused "serious, permanent disfigurement." The question thus becomes whether expert medical testimony regarding what the severity of the injury would have been absent medical attention is relevant to whether an injury actually caused "serious, permanent disfigurement." Based on our conclusion that proof that a result would have occurred but did not because of intervening events is irrelevant when that result is an element of the offense, we hold that such expert medical testimony is not relevant to prove "serious, permanent disfigurement." 6

Thus, we hold that the circuit court erred in admitting Dr. Walczak's testimony regarding what the severity of Mountford's injuries would have been if Mountford had not received medical attention because the testimony was irrelevant to the charged offense under HRE Rule 401 and, thus, inadmissible to prove the element of serious bodily injury under HRE Rule 402.

Having held that the circuit court erred in admitting Dr. Walczak's irrelevant testimony, we must consider whether the error prejudiced Malufau, for "even where error occurs, there will be no reversal where on the record as a whole no prejudice to the defendant has resulted[.]" State v. Nakamura, 65 Haw. 74, 80, 648 P.2d 183, 187 (1982) (citation and quotation marks omitted). See also Hawai'i Rules of Penal Procedure Rule 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").

In State v. Suka, 79 Hawai'i 293, 901 P.2d 1272 (Haw.Ct.App.1995) (citation and quotation marks omitted), cert. denied, 79 Hawai'i 341, 902 P.2d 976 (1995), the Intermediate Court of Appeals (ICA) held that, when an error is not of constitutional magnitude, ordinarily, 7 "[t]he harmless error standard under HRPP Rule 52 requires that the court examine the entire record to determine whether the error itself had substantial influence upon the jury's verdict." Suka, 79 Hawai'i at 300, 901 P.2d at 1279 (citation and quotation marks omitted). The ICA contrasted this standard with the "harmless beyond a reasonable doubt" standard, which it held was applicable only to violations of constitutional rights. Id. at 298, 300, 901 P.2d at 1277, 1279. "In applying the harmless beyond a reasonable doubt standard the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction." Id. at 294, 901 P.2d at 1273 (citation and quotation marks omitted). Because a defendant may not be convicted of an offense except upon proof establishing his or her guilt beyond a reasonable doubt, we question whether a standard more lenient than the harmless beyond a reasonable doubt standard is ever appropriate in criminal cases. Nevertheless, we need not resolve that question in the instant case because the admission of Dr. Walczak's irrelevant testimony could not be considered harmless even under the more lenient standard.

Under either standard, as a general rule, "[w]here...

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