83 Hawai'i 335, State v. Loa

• Decision Date: 06 November 1996
• Docket Number: No. 17790,17790
• Parties: 83 Hawai'i 335 STATE of Hawai'i, Plaintiff-Appellee, v. Saofaiga LOA Junior, also known as Junior Loa, Defendant-Appellant, and Leonard Obon, Defendant.
• Court: Hawaii Supreme Court

Page 1258

926 P.2d 1258

83 Hawai'i 335

STATE of Hawai'i, Plaintiff-Appellee, v. Saofaiga LOA Junior, also known as Junior Loa, Defendant-Appellant and Leonard Obon, Defendant.

No. 17790.

Supreme Court of Hawai'i.

Nov. 6, 1996.

Reconsideration Denied Nov. 25, 1996.

Richard S. Kawana, on the briefs, Honolulu, for defendant-appellant Saofaiga Loa Junior.

James H. S. Choi, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee State of Hawai'i.

Before KLEIN, Acting C.J., and LEVINSON and RAMIL, JJ., Circuit Court Judge HUDDY, in place of MOON, C.J., Recused, and Circuit Court Judge KOCHI, in place of NAKAYAMA, J., Recused.

LEVINSON, Justice.

The defendant-appellant Saofaiga Loa Junior appeals (1) his convictions--pursuant to jury verdicts of guilty--of (a) one count of "attempted reckless manslaughter" (as a supposedly included offense of the charged offense of attempted murder in the first degree), (b) one count of robbery in the first degree, (c) six counts of sexual assault in the first degree, and (d) one count of kidnapping, ¹ and (2) his enhanced sentences of (a) seven life terms of imprisonment with the possibility of parole and (b) two twenty-year terms of imprisonment, all nine of which were ordered to run consecutively.

As points on appeal, Loa argues that the trial court erred by: (1) admitting a knife into evidence without proper foundation; (2) denying his right to conduct full cross-examination of a key prosecution witness; (3) denying various defense motions for a mistrial because of (a) the allegedly erroneous admission of the knife, (b) the prosecution's alleged violation of the trial court's order in limine by adducing testimony that one of the assailants had stated, in contravention of Hawai'i Rules of Evidence (HRE) 404(b), that "they [had] just got out of OCCC," and (c) a statement made by the deputy prosecuting attorney (DPA) during closing argument, which Loa claims constituted prejudicial prosecutorial misconduct; and (4) sentencing him arbitrarily and capriciously to extended and consecutive terms of imprisonment, so as to subject him to cruel and unusual punishment.

Although all of Loa's points of error are without merit, we hold that the trial court committed plain error in instructing the jury regarding "attempted reckless manslaughter"--which is nonexistent--as an offense allegedly included within the charged offense of attempted first degree murder. Accordingly, we vacate Loa's conviction of and sentence for attempted reckless manslaughter. In all other respects, we affirm.

I. BACKGROUND

In the early morning hours of July 3, 1992, Loa and two of his male companions attacked a couple--the complainant and her male companion, a legally blind person--in the park on Magic Island, which is located in the City and County of Honolulu. During the course of the attack, the complainant was repeatedly sexually assaulted (including at least three distinct acts of vaginal intercourse, three of penile penetration of the complainant's mouth, one of digital penetration of the complainant's vagina, and one of digital penetration of the complainant's anus--all by "strong compulsion"), stabbed in the back with a knife, and left naked and bleeding on the beach. Her automobile was stolen. Her male companion was also stabbed repeatedly and left to die. During their ordeal, the complainant and her male companion were continually taunted by their attackers about their ethnicity and imminent deaths. Remarkably, both victims survived.

The complainant testified in detail at trial regarding her ordeal. Her description of the events preceding the attacks produced the following exchange:

[By the DPA:] [Complainant], can you tell us what sort of things Loa asked?

[Complainant:] He asked us how old we are, what nationality we are[,] what school we went to[,] where we live....

Q. ... [D]id you ... tell him what nationality you were?

A. Yes, I did.

Q. And did you talk about where you lived and went to school?

A. Yes, I did.

Q. Can you tell us what else you guys talked about?

A. We talked about where they came from[;] they were talking about MP's, cops. I heard one of them mention they just got out of OCCC. One of them just got out of--

At this point, defense counsel objected, moved to strike the complainant's remark about OCCC, and also moved for a mistrial on the ground that the remark was extremely prejudicial and violated an order by which the trial court had previously granted a motion in limine precluding the prosecution from adducing evidence of Loa's prior criminal history or bad acts. The trial court granted the motion to strike but denied the motion for a mistrial, ruling that the complainant's response was unsolicited and, in any case, that any prejudice to Loa could be cured by a cautionary instruction. The trial court then admonished the jury as follows:

THE COURT: Okay. At this ... point in time the Court is going to instruct the jury to please disregard the last statement made by the witness regarding someone mentioning the fact that they had just been released from OCCC....

The jury is instructed to disregard that and not consider that statement....

One of Loa's codefendants, Leonard Obon, voluntarily agreed to testify as a witness for the prosecution. On cross-examination, defense counsel sought to impeach Obon's testimony as biased by posing a series of detailed questions regarding a plea bargain that Obon had apparently concluded with the prosecution. After a lunch break, the following colloquy ensued:

[By defense counsel:] Now, Mr. Obon, ... let me ask you this. With respect to the plea agreement ... that you cut with the prosecutor, that would be ... Defendant's Exhibit H for identification.

You understand ... [,] with respect to the ... amounts of incarceration[ ] that you could receive under the plea agreement as opposed to going to trial[ ] and ... being convicted as charged, ... that what you really bargained for, in that plea agreement, was a chance ... to go before the Hawaii Parolling [sic] Authority?

[By Obon:] Yes.

Q. Okay. Because if you were convicted as charged of the attempted murder in the first degree, you would never have the chance to go before the parolling [sic] authority; is that right?

The prosecution objected to the question on the ground that its answer would obliquely apprise the jury of the penalty for attempted first degree murder, with which both Loa and Obon were charged. The trial court sustained the objection and directed defense counsel to seek a bench conference if he intended to address the matter of the penalty for that offense in any further questions.

Meanwhile, on direct examination, Obon had been shown a knife that the prosecution had marked for identification as State's Exhibit No. 55 and was attempting to introduce into evidence as the weapon with which Loa had attacked the complainant and her male companion. Obon testified that State's Exhibit No. 55 "looked like" the knife that Loa had used, although he was uncertain that it was the same, believing that the handle of the actual knife might have been made of softer rubber and acknowledging that he could not recall having noticed a serrated edge because he "wasn't really paying attention to the knife or looking at it at the time." The prosecution moved the knife into evidence, and defense counsel objected on the ground of insufficient foundation. The trial court sustained the objection and refused to receive the knife into evidence at that time.

Ferlyn Casintahan, Loa's female companion, who was present on Magic Island during the incident but was not involved in the attacks, was later called as a defense witness. On cross-examination, the DPA asked her to describe the knife that she had seen one of the men carrying earlier during the night in question. Casintahan characterized the knife, which she had personally held for a brief period during the same night, as having a black rubber handle and a grey pointed blade with at least one serrated edge. She then identified State's Exhibit No. 55 as appearing to be the knife that she had observed and handled on the night of the attacks testifying that it looked no different than it had on July 3, 1992. The prosecution then renewed its motion for introduction of State's Exhibit No. 55 into evidence. The trial court again denied the motion because, in its view, there was still inadequate foundation as to the knife's length. To rectify the foundational gap, the prosecution elicited testimony from Casintahan that she had seen only one knife during the night in question, that State's Exhibit No. 55 looked like the knife she had seen, and that she had observed one of the attackers with the knife earlier in the evening at the park bathroom.

Over the defense's objection, the trial court then received State's Exhibit No. 55 into evidence, ruling that "there is enough foundation, there is enough relevancy[,]" and ... "everything else goes to weight." The trial court's ruling precipitated a bench conference, during which the following exchange transpired between the court and defense counsel:

THE COURT: ... I don't find ... a lack of foundation for the following reasons: First of all, if I was just to take [Casintahan's] testimony and isolate it, yeah, I'd agree with you that there's a lack of foundation[,] but I can't ignore all the testimony that has been elicited in this trial. When I put all of that together[,] there's very much foundation regarding this knife.

Second, as far as the prejudicial effect, I don't see any. There's no question that the people were stabbed[;] there's no question[,] based on all the testimony that's been elicited, [that] the knife at the minimum was four inches long. I mean everybody has admitted to that[;] that's uncontradicted.

And lastly, there's been no denial of the fact that it was a double edged knife[;] that's been admitted by Obond [sic], by [Casintahan], there--there...