85 Hawai'i 258, State v. Villeza, 17703

• Decision Date: 08 July 1997
• Docket Number: No. 17703,17703
• Citation: 942 P.2d 522
• Parties: 85 Hawai'i 258 STATE of Hawai'i, Plaintiff-Appellee, v. Edward Shawn VILLEZA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 522

942 P.2d 522

85 Hawai'i 258

STATE of Hawai'i, Plaintiff-Appellee, v. Edward Shawn VILLEZA, Defendant-Appellant.

No. 17703.

Supreme Court of Hawai'i.

July 8, 1997.

Ray Allen Findlay, on the briefs, Honolulu, for defendant-appellant.

Caroline M. Mee, Deputy Prosecuting Attorney, on the briefs, Honolulu, for plaintiff-appellee.

Before McCONNELL, Acting C.J., in place of MOON, C.J., recused; MASUOKA, Circuit Judge, in place of KLEIN, J., recused; IBARRA, Circuit Judge, in place of LEVINSON, J., recused; SHIMABUKURO, Circuit Judge, in place of NAKAYAMA, J., recused; and TOWN, Circuit Judge, in place of RAMIL, J., recused.

McCONNELL, Acting Chief Justice.

Defendant-appellant Edward Shawn Villeza appeals after jury conviction and sentence for the offense of manslaughter in violation of Hawai'i Revised Statutes (HRS) § 707-702 (1993).

For the reasons set forth below, we affirm.

I. BACKGROUND

Villeza was convicted of murder in the second degree for shooting his mother. The conviction was reversed due to an erroneous jury instruction, and the case remanded for a new trial. State v. Villeza, 72 Haw. 327, 817 P.2d 1054 (1991).

A. Jury Selection and Motion to Quash Indictment

At jury selection in the retrial, the trial court redacted potential jurors' street addresses and home and work telephone numbers from the juror qualification forms. Villeza objected, arguing that the failure to supply prospective jurors' street addresses and telephone numbers violated his rights to effective assistance of counsel and due process. The redacted forms provided the general geographic location and zip code of each juror's residence, each juror's occupation, employer, date of birth, years of residence in the State of Hawai'i, educational background, and other personal information.

Villeza moved to quash the indictment based on the redaction of the juror qualification forms. Villeza contended the redaction violated HRS § 612-17 (1993) and his constitutional rights to due process, equal protection, and effective assistance of counsel. Villeza offered evidence that juror qualification forms were not redacted in civil trials and argued that the trial court arbitrarily singled out a class, criminal defendants in jury trials, for unequal treatment. Villeza claimed redaction of the forms hampered his ability to investigate prospective jurors. The court took judicial notice that judges in the Criminal Division of the First Circuit Court redacted home street addresses and telephone numbers from the qualification forms but provided each juror's residential community name and zip code. The court denied Villeza's motion to quash the indictment.

B. Sentencing

On retrial, the jury found Villeza guilty of the lesser included offense of manslaughter by reckless conduct. ¹ The State moved the court to order a psychiatric or psychological examination of Villeza to determine whether he was a dangerous person who should be sentenced to an extended term of imprisonment pursuant to HRS §§ 706-661 and 706-662(3) (1993). At the hearing on the State's motion, Villeza stated that he would exercise his fifth amendment right and refuse to speak to any mental health examiner. The court granted the State's motion.

Dr. Jack Annon was appointed to examine Villeza. Dr. Annon withdrew because he had worked on Villeza's case for the public defender's office. The court then appointed Dr. Daniel Reed to examine Villeza. Dr. Reed informed the court that he could not make a determination of Villeza's dangerousness because, among other reasons, he had no opportunity to interview Villeza.

The State moved to continue the sentencing date and for appointment of another psychiatrist or psychologist to assess Villeza's dangerousness. Villeza opposed the motion, arguing there could be no enhanced sentence because a dangerousness evaluation had not been made by the sentencing date. The court granted the State's motion to continue the sentencing date and directed that the judge in charge of selecting the mental health professional be informed that a "mental health expert who will be able to express an opinion, whatever the opinion may be, without having access to the Defendant" was needed.

Dr. John Wingert, a clinical psychologist, was appointed. Dr. Wingert assessed Villeza and submitted his findings to the court. Based upon Dr. Wingert's determination that "Villeza ha[d] a significant history of dangerousness to others resulting in criminally violent conduct," the State moved for an extended term of imprisonment.

At the sentencing hearing, Dr. Wingert testified that, as a consultant to Child Protective Services, he had performed hundreds of dangerousness evaluations without interviewing the subject individual. He explained that a psychological assessment of dangerousness consists of a review of all available data, including anecdotal information, police records, interviews, probation reports, and other available records. The doctor further testified that, if possible, interviews with individuals who have first hand knowledge of the person should be considered. Dr. Wingert interviewed Villeza's brother and sister, two next door neighbors, and Honolulu Police Department Officer Hector Rivera (Officer Rivera), who was a police officer involved in the instant case as well as other incidents at the Villeza house. Dr. Wingert reviewed police interviews, copies of temporary restraining orders filed by Villeza's mother and sister, and adult probation records. Based upon the records sent to him, as well as the interviews, Dr. Wingert concluded to a reasonable clinical psychological certainty that Villeza's significant history of dangerousness made him a serious danger to others.

On cross-examination, Dr. Wingert opined he did not conduct what he considered, in "professional terminology," a psychological evaluation of Villeza because he was unable to interview Villeza face-to-face. Claiming there was insufficient foundation to support Dr. Wingert's findings, Villeza moved to strike Dr. Wingert's testimony. The State argued Dr. Wingert's procedures were acceptable in the community, a face-to-face interview is not a prerequisite to a dangerousness evaluation and, if it were, the State could never secure an extended term sentence under the applicable statute when a defendant refused to be interviewed. The trial court denied Villeza's motion to strike Dr. Wingert's testimony.

Officer Rivera testified that, in the years prior to Mrs. Villeza's death, he had been called to the Villeza house because Villeza had threatened family members and refused to leave the house.

Jarvis Claussen testified that he had been Villeza's neighbor for many years. He described incidents of violence in which Villeza chased his sister with a butcher's knife, hit one of Claussen's sons in the head, and threw a rock at Claussen. Claussen's son, Matthew, testified Villeza had repeatedly threatened him.

Villeza's brother, Brent Ian Villeza (Ian), testified Villeza began showing violent tendencies as a teenager, that Villeza shot Ian with a BB gun, and that Villeza hit Ian on the head with a brick. According to Ian, starting in 1987, Villeza repeatedly threatened to kill him and once threatened to break his neck. Ian further testified that Villeza punched his sister in the mouth, knocking out two teeth. Ian testified that he feared for his life and believed his brother was crazed or violent.

Villeza's witness, Dr. Daniel Reed, testified he reviewed the same information reviewed by Dr. Wingert, but was unable to make a determination of dangerousness.

The court granted the State's motion for extended sentencing and sentenced Villeza to twenty years imprisonment.

C. Filing of Quo Warranto Petition

Before the final sentencing hearing, Villeza filed a "Motion for Leave to File a Civil Complaint Re: Petition for Writ of Quo Warranto Against Daniel G. Heely Who Acts as a Judge in the First Circuit Court" (motion for leave). Villeza argued Judge Heely vacated his position as circuit court judge when he assumed the duties of the administrative director for the courts and, therefore, had no authority to sentence Villeza.

Prior to the sentencing hearing, defense counsel informed Judge Heely of the quo warranto proceeding and explained that he believed such proceeding was integral to affording effective assistance of counsel and due process of law. Defense counsel suggested Judge Heely would be contravening the lawful power of the judge scheduled to hear the motion for leave if he proceeded with sentencing. Defense counsel informed Judge Heely that he had filed an ethics complaint with the Office of Disciplinary Counsel regarding Judge Heely's alleged dual positions. ²

After reviewing and addressing Villeza's motion, Judge Heely proceeded with sentencing. The court marked as an exhibit and read into the record an August 9, 1993 order signed by the Hawai'i Supreme Court justices. The order transferred the functions of the administrative director to the First Division of the First Circuit Court, Judge Heely presiding. Judge Heely reiterated that he was a sitting circuit court judge, had not resigned his office, and stated:

Any administrative functions I am exercising in the office of the administrative director of the court is at the request and direction of the Justices of the Hawaii Supreme Court pursuant to the orders I just read in the record. And further, there is no prohibition in any Hawaii Revised Statutes or under any state or federal constitutional provisions which prohibit a sitting judge from exercising administrative duties in the context of what I just read into the record pursuant to the order of the Hawaii Supreme Court.

With respect to the disciplinary complaint, Judge Heely stated the arguments within the motion and the appended petition for writ of quo warranto were insufficient to postpone sentencing and were clearly insufficient to require disqualification for bias or...