State v. Friedman
Decision Date | 06 April 2000 |
Docket Number | No. 22504.,22504. |
Parties | STATE of Hawai`i, Plaintiff-Appellee, v. Bernd FRIEDMAN, Defendant-Appellant. |
Court | Hawaii Supreme Court |
Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, for defendant-appellant.
Richard K. Minatoya, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.
MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ. and Intermediate Court of Appeals Associate Judge WATANABE, Assigned by Reason of Vacancy.
Subsequent to a bench trial in the family court of the second circuit, defendant-appellant Bernd Friedman appeals his conviction of and sentence for abuse of family and household members (family abuse), in violation of Hawai`i Revised Statutes (HRS) § 709-906 (1993 & Supp.1999).1 Friedman appeals on several grounds: (1) the trial court erred when it failed to obtain a valid waiver of his constitutional right to a trial by jury; (2) the trial court plainly erred when it convicted him even though there was insufficient evidence to negative the justification defense of choice of evils; and (3) the trial court erred when it convicted him after finding mutual affray because (a) mutual affray is a defense or mitigating factor for family abuse, (b) assault in the third degree committed in mutual affray, a petty misdemeanor under HRS § 707-712(2) (1993) [ ],2 is a lesser included offense of family abuse, (c) a conviction of family abuse deprives him equal protection of the law, and (d) a conviction of family abuse violates the holding in State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977). For the reasons discussed below, we affirm the conviction and sentence of the trial court.
On February 26, 1999, Friedman, accompanied by counsel, was arraigned for the offense of family abuse. At Friedman's arraignment, the following colloquy took place:
At the April 13, 1999 bench trial, Sachi Friedman (Sachi), Friedman's wife, testified as follows. On February 13, 1999, at approximately 8:00 or 9:00 p.m., following their child's birthday party, Sachi went onto their lanai to smoke marijuana. Friedman came outside and grabbed her bag of marijuana. Sachi testified that she "automatically" pushed Friedman away from her. Friedman then grabbed Sachi's hair, which caused her pain, and pulled her back into their residence to talk about her alleged drug abuse.
Sachi further testified that she was upset about Friedman pulling her hair and that, once inside their residence, she began to hit Friedman. Friedman also hit Sachi on her face, arms, and legs with an open hand, which also caused her pain. During the altercation, Sachi attempted to walk out the door, but Friedman pushed her onto the sofa. Sachi testified that, after the brief altercation had ended, Friedman called the police to their residence. Sachi recalled speaking to a police officer, but did not recall speaking specifically with Officer Kaupalolo, nor the contents of the conversation. Finally, Sachi testified that: (1) she and Friedman continued to reside together; (2) she did not wish to see Friedman prosecuted; and (3) she had signed a withdrawal of prosecution form.
Officer Kaupalolo briefly testified as to the events of that evening. Officer Kaupalolo was dispatched to the Friedman's residence to respond to a "possible abuse call." Upon his arrival, Officer Kaupalolo noticed that Sachi was "very distraught and crying." Sachi informed Officer Kaupalolo that she and her husband had been fighting and that her head was sore from being pulled by her hair.
Finally, Friedman's testimony substantiated Sachi's testimony of the altercation. Friedman testified that his concern regarding Sachi's marijuana use has been ongoing for a number of years. Friedman testified that, when he saw that Sachi was about to smoke marijuana, he grabbed the bag of marijuana and dumped it over the lanai railing. Friedman neither denied pulling Sachi by her hair into their residence nor hitting Sachi with an open hand, but explained that his conduct was motivated by his attempt to address Sachi's alleged drug abuse and its effects upon his family. Friedman further testified that, during the altercation, in addition to being hit by Sachi, Sachi allegedly kicked him once in the groin. After the altercation ended five to ten minutes later, while Sachi telephoned her father by cellular phone, Friedman phoned the police to report that Sachi had smoked marijuana.
Based upon the foregoing evidence, the trial court rendered the following verdict:
Accordingly, the trial court convicted Friedman of family abuse and sentenced Friedman to forty-eight hours of imprisonment with credit for time served, one year of probation, counseling, and a $50.00 Criminal Injuries Compensation Fee. Friedman timely appeals his conviction and sentence.
The validity of a criminal defendant's waiver of his or her right to a jury trial presents a question of state and federal constitutional law. Likewise, the validity of a statute based upon equal protection and due process of law is a question of constitutional law. State v. Hanapi, 89 Hawai`i 177, 182, 970 P.2d 485, 490 (1998) (quoting State v. Mallan, 86 Hawai`i 440, 443, 950 P.2d 178, 181 (1998)) (citations omitted).
Friedman's failure to properly raise the issue whether the prosecution negated the choice of evils defense does not foreclose our consideration of the issue because this court may sua sponte notice plain errors. See State v. Alston, 75 Haw. 517, 529, 865 P.2d 157, 164 (1994). "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Hawai`i Rules of Penal...
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