State v. Cordeiro

• Citation: 99 Haw. 390,56 P.3d 692
• Decision Date: 07 October 2002
• Docket Number: No. 22065.,22065.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Gordon J. CORDEIRO, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

56 P.3d 692

99 Haw. 390

STATE of Hawai`i, Plaintiff-Appellee, v. Gordon J. CORDEIRO, Defendant-Appellant.

No. 22065.

Supreme Court of Hawai`i.

October 7, 2002.

Reconsideration Denied November 6, 2002.

Dwight C.H. Lum, Honolulu, on the briefs, for the defendant-appellant, Gordon J. Cordeiro.

Simone C. Polak (Deputy Prosecuting Attorney), on the briefs, for the plaintiff-appellee, State of Hawai`i. MOON, C.J., LEVINSON, J., NAKAYAMA, J., and RAMIL, J., and Circuit Judge McKENNA, assigned by reason of vacancy; and NAKAYAMA, J., concurring separately, and with whom RAMIL, J., joins.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Gordon J. Cordeiro appeals, in connection with Cr. No. 94-0522(3), from the judgment of the second circuit court, the Honorable Boyd P. Mossman presiding, convicting him of and sentencing him for the offenses of murder in the second degree, in violation of Hawai`i Revised Statutes (HRS) § 707-701.5 (1993),¹ robbery in the first degree, in violation of HRS § 708-840 (1993),² and prohibited place to keep firearm, in violation of HRS § 134-6 (Supp.1997),³ and, in connection with Cr. No. 97-0073(3), from the same judgment convicting him of and sentencing him for the offense of attempted murder in the first degree, in violation of HRS §§ 705-500 (1993)⁴ and 707-701(1)(d) (1993).⁵ Cordeiro raises a plethora of points of error on appeal, see infra section I.B. In summary, we hold that the circuit court plainly erred in its jury instructions regarding the charge of first degree robbery and, accordingly, we vacate Cordeiro's conviction of and sentence for first degree robbery and remand for further proceedings consistent with this opinion. In all other respects, we affirm the circuit court's judgment of conviction and sentence.

I. BACKGROUND

Inasmuch as the present appeal directly involves five criminal proceedings, implicates a sixth, and concerns two trials, we believe it expedient, in this section, to provide a short procedural synopsis, summarize each of Cordeiro's numerous points of error, and briefly sketch the factual background giving rise to the various charges. We discuss the facts germane to each of Cordeiro's points of error more fully infra in section III.

A. Procedural Synopsis

On October 24, 1994, a grand jury returned an indictment against Cordeiro in Cr. No. 94-0522 (hereinafter, "the Blaisdell case"), charging him with robbing and murdering Timothy Blaisdell, kidnapping Michael Freitas, and committing two firearms-related offenses, all on August 11, 1994.⁶ The matter proceeded to trial in May 1995, resulting in a hung jury on all counts, and the circuit court declared a mistrial.

On May 19, 1995, while Cordeiro was being tried for the first time in the Blaisdell case, a grand jury indicted him in connection with several drug related offenses (hereinafter, "the drug case"). After the circuit court declared a mistrial in the Blaisdell case, the prosecution moved to consolidate the drug case with the Blaisdell case, but the circuit court denied the prosecution's motion.

Subsequently, while Cordeiro awaited retrial in the Blaisdell case, he was indicted in four other matters, all for attempted first degree murder, see supra notes 4 and 5. In Cr. No. 97-0073 (hereinafter, "the Iona case"), Cordeiro was accused of hiring John K. Iona in March 1995 to kill Freitas, who was the prosecution's only eyewitness to the murder with which Cordeiro was charged in the Blaisdell case. In Cr. No. 95-0503 (hereinafter, "the Cornelio case"), Cordeiro was accused of hiring William Cornelio in June 1995 to kill Freitas. A third indictment, returned in Cr. No. 96-0310 (hereinafter, "the Kekona case"), accused Cordeiro of hiring Anthony Kekona sometime in the fall of 1995 to kill Cornelio. And, finally, a fourth indictment, Cr. No. 98-0149 (hereinafter, "the Kapika case"), accused Cordeiro of hiring Nedric R. Kapika in January 1998 to kill Freitas. In each of these matters (hereinafter, collectively, "the attempted first degree murder cases"), the prosecution moved for, defense counsel did not object to, and the circuit court granted consolidation with the Blaisdell case.

However, prior to trial, the circuit court dismissed the Kekona case (in which Cornelio was the alleged victim) without prejudice. Thereafter, the consolidated matter—now comprised of the Blaisdell, Cornelio, Iona, and Kapika cases—proceeded to trial in June 1998. On August 10, 1998, the jury acquitted Cordeiro of attempted first degree murder in connection with the Kapika and Cornelio cases. However, the jury convicted Cordeiro of attempted first degree murder, as charged, in the Iona case. In connection with the Blaisdell case, the jury acquitted Cordeiro of the offense of kidnapping but convicted him of second degree murder, first degree robbery, and the two firearms-related offenses.⁷

B. Cordeiro's Points Of Error

Cordeiro's first and second points of error challenge his first degree robbery conviction in connection with the Blaisdell case. First, Cordeiro asserts that the indictment in the Blaisdell case failed to expressly name either the victim of the theft or the person against whom Cordeiro used force. Because he raises the issue for the first time on appeal, Cordeiro urges this court to recognize the alleged defect as plain error, warranting reversal of his first degree robbery conviction. Second, Cordeiro urges that the circuit court plainly erred in failing to instruct the jury (1) that "it must [unanimously] find that one or more specifically named persons was a victim of the theft," (2) that the "victim's awareness of the theft is a necessary element of first degree robbery," and (3) that the jury could "find [Cordeiro] guilty only of the murder [of Blaisdell] if [it] determined that [Cordeiro] committed that offense concurrently with the robbery [offense]." Cordeiro's third point is that the circuit court plainly erred in consolidating the Cornelio, Iona, and Kapika cases with the Blaisdell case; accordingly, Cordeiro urges this court to vacate all of his convictions and remand for separate trials in the Blaisdell and Iona cases.

Cordeiro's remaining points of error beseech this court to vacate all of his convictions and remand for a new trial. His fourth point is that the circuit court: (1) erred, over his objection, in admitting (a) evidence of Cordeiro's involvement with illegal drugs and (b) testimony regarding a threat that he allegedly directed against a witness; and (2) plainly erred in instructing the jury with regard to the purpose for which it could consider such "other bad acts" evidence (Cordeiro not having objected to the instruction at trial). Cordeiro's fifth point is that the circuit court erred in allowing Anthony Mamoukian, M.D., a pathologist who testified for the prosecution, to render an opinion regarding the trajectory of the bullet that killed Blaisdell; according to Cordeiro, Dr. Mamoukian was not qualified as a "homicide reconstruction expert." As his sixth point, Cordeiro argues that the circuit court erred in precluding him from calling Wayne Hill, a purported "homicide reconstruction expert," as a witness. By doing so, Cordeiro contends that the circuit court violated "his constitutional right to present a complete defense." In his seventh point, Cordeiro argues that, in limiting his cross-examination of various witnesses, the circuit court violated his constitutional right to confrontation. In his eighth point, Cordeiro claims that the circuit court erred in allowing the prosecution, over his objection, to adduce Cornelio's testimony regarding his religious beliefs; Cordeiro asserts that such testimony was simply "a way to bolster [Cornelio's] credibility," in violation of Hawai`i Rules of Evidence (HRE) Rule 610 (1998). Cordeiro's ninth point is that the circuit court erred in denying his motion for a new trial; according to Cordeiro, the prosecution knowingly adduced perjured testimony. Cordeiro's tenth point of error is a prosecutorial misconduct claim. Cordeiro argues: (1) that the two deputy prosecuting attorneys (DPAs) "work[ed] in tandem" during his trial to "harass" his counsel; (2) that the prosecution made frivolous objections for the purpose of interrupting the defense counsel's cross-examination; (3) that, in closing argument, the DPA "constantly referr[ed] to [Cordeiro] as a liar and personally vouch[ed] for [the prosecution's] witnesses"; and (4) that the cumulative effect of the foregoing conduct deprived Cordeiro of a fair trial.⁸ Consequently, Cordeiro argues that the circuit court erred in denying his two motions for a mistrial. Cordeiro's eleventh and final point of error is an ineffective assistance of counsel claim, which he fashions from a number of his other points. Cordeiro argues that he was denied the effective assistance of counsel by virtue of defense counsel's failure (1) to object to the prosecution's joinder motions, (2) to file a motion to dismiss the allegedly defective robbery count in the Blaisdell indictment, (3) to object to the circuit court's first degree robbery instruction, (4) "to move for prompt limiting instructions" in connection with the "other bad acts" evidence, and (5) adequately to investigate an allegation that the prosecution knowingly introduced perjured testimony.

C. Factual Background

The present matter arises from the murder of Timothy Blaisdell on August 11, 1994, which occurred in the course of his attempt to purchase a pound of marijuana, and the subsequent efforts by Cordeiro to evade prosecution and conviction for the crime by eliminating the only eyewitness to the murder, Michael Freitas. The following evidence was adduced at Cordeiro's second trial, in July and August of 1998, in connection with Blaisdell's murder.

1. The Blaisdell case

During the summer of 1994, Blaisdell was living with his parents in Makawao, Maui and working at Kaya's Collision and Repair, an automobile repair shop. In...