State v. Faufata

• Decision Date: 04 March 2003
• Docket Number: No. 24630.,24630.
• Citation: 101 Haw. 256,66 P.3d 785
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Dorothy-Marie FAUFATA, Defendant-Appellant, and David C. Martinez, Defendant.
• Court: Hawaii Court of Appeals

66 P.3d 785

101 Haw. 256

STATE of Hawai`i, Plaintiff-Appellee, v. Dorothy-Marie FAUFATA, Defendant-Appellant, and David C. Martinez, Defendant.

No. 24630.

Intermediate Court of Appeals of Hawai'i.

March 4, 2003.

Chester M. Kanai, on the briefs, Honolulu, for Defendant-Appellant.

Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.

BURNS, C.J., WATANABE and LIM, JJ.

Opinion of the Court by BURNS, C.J.

Defendant-Appellant Dorothy-Marie Faufata (Faufata), appeals from the Judgment filed on September 19, 2001, convicting her of the included offense of Manslaughter, Hawai'i Revised Statutes (HRS) § 707-702(1)(a) (1993),¹ and sentencing her to an indeterminate term of imprisonment of ten (10) years and to a mandatory minimum of three (3) years and four (4) months pursuant to HRS § 706-660.2 (1993).² We affirm.

BACKGROUND

On November 23, 1999, a Grand Jury Indictment charged Faufata in Count I, and her co-defendant, David C. Martinez (Martinez), in Count II, of Murder in the Second Degree, HRS §§ 707-701.5,³ 706-656,⁴ and 702-203,⁵ for intentionally or knowingly causing the death of Faufata's daughter, Natasha Faufata (Natasha). Natasha was born on February 1, 1992. Natasha died on or before March 21, 1994. The Indictment alleged that Faufata

being the parent of Natasha Faufata, did intentionally or knowingly cause the death of Natasha Faufata, a child less than eighteen (18) [sic] years of age, by failing to seek and obtain timely medical treatment for the injuries Natasha Faufata sustained, thereby committing the offense of Murder in the Second Degree,.... Defendant is subject to sentencing in accordance with Section 706-660.2 of the Hawai'i Revised Statutes, where, in the course of committing a felony, she caused the death of Natasha Faufata, who was less than eight (8) years of age, and [Faufata] knew or reasonably should have known of such disability.

On July 31, 2000, Martinez filed a "Motion to Dismiss Indictment for Preindictment Delay" (Motion to Dismiss). Faufata joined in the Motion to Dismiss by filing a submission of notice of joinder on August 4, 2000. A hearing was held on November 22, 2000, before Judge Michael A. Town. At that hearing, Martinez stated:

We'd submit there's a presumptive prejudice to the defendant when cases are essentially sat on by the prosecutor who five and a half years prior to the case being brought or conferred to the Oahu Grand Jury[,] the prosecution, ... [was] acutely aware of the factual circumstances surrounding the allegations against Mr. Martinez and Ms. Faufata at the time.

Echoing the same sentiments, Faufata argued that

the delay itself, the five years eight months, is presumptively prejudicial....

[A]nd if you take a look at the memo of the State which gives an explanation and it is really an insufficient explanation for the delay given the seriousness of the offense, then the court must conclude that the delay was prejudicial.

To explain the delay, Plaintiff-Appellee State of Hawai'i (State) in its August 23, 2000 memorandum in opposition to the Motion to Dismiss (August 23, 2000 Memorandum) said that

[t]he reason for the delay ... is that neither the Deputy Prosecutor who was originally assigned the case, nor the two other Deputy Prosecutors, subsequently assigned, were satisfied that the police and the medical examiner investigations were able to adequately determine the mechanism of the child's death; thus, the manner of death in the autopsy report was classified as "undetermined."....

It was not until the spring of 1998, when the new administration initiated a department review of old child death cases, that the resources were allocated to consult with Dr. Janice Ophoven, M.D., a mainland expert, qualified as a pediatric forensic pathologist; a subspecialty in pathology not available in Hawai'i. After consultation, Dr. Ophoven submitted her report,... wherein she concluded that the victim, Natasha Faufata, died as a result of "homicidal assault."

In its August 23, 2000 Memorandum, the State also argued that

Defendants must show actual prejudice in order to prove that they are entitled to a dismissal of charges. General statements that Defendants "may" be negatively impacted by such things as a loss of memory coupled with a lapse of time does not, of itself, establish prejudice for purposes of a claim of violation of due process under Article I, Section 5 of the Hawai'i State Constitution. (Citations omitted).

At the November 22, 2000 hearing, the State repeated its argument that "the case law is again that ... clearly the first prong is they have to establish actual prejudice, and the State submits that there's been no presentation of any evidence to indicate any actual prejudice to the defendants."

At the November 22, 2000 hearing, the defense admitted it was cognizant of the case law in Hawai'i that seemed to require a showing of prejudice, but said it was difficult to show any prejudice at that point in the proceedings.

On March 22, 2001, Judge Town issued an order denying the Motion to Dismiss.

On May 15, 2001, Faufata and Martinez waived their right to a jury trial. On that date, the State filed a motion in limine to "allow at trial the introduction of evidence of prior injuries to the baby-decedent ... as the factual basis for expert medical testimony on the issue of Battered-Child Syndrome" (BCS Motion). On May 18, 2001, a hearing was held on the BCS Motion and the transcript of that proceeding, in relevant part, reads as follows:

THE COURT: ... I'm well aware of the battered child syndrome concept. Other states have allowed it, historically. Is there any case on all fours in Hawai'i?

[DEPUTY PROSECUTING ATTORNEY (DPA)]: No, Your Honor. As far as I know, it hasn't been litigated in Hawai'i yet, but that's why I didn't cite in the specific Hawai'i authority. But as my memo points out, for the record, that real long string cite that I put in there, I mean, it's—it's well settled both in the federal courts all the way up to the Supreme Court and in various state jurisdictions around the country,....

THE COURT: I know I've let it in in family court and noncriminal matters, civil matters, i.e. child protection, but I was frankly unaware that there was a problem. May be foundational in nature.

In your mind, you can proffer a proper foundation through the doctor; is that correct?

[DPA]: That's correct, Your Honor. This is all contingent upon calling the expert who in this case is Dr. Victoria Schneider. She's the child abuse expert down at Kapiolani....

....

THE COURT: ... [Defense counsel], how do you want to handle this?

[DEFENSE COUNSEL]: Let me first start by—by saying that under the original charge, there's a specified period on the causation of death, and I think it's, roughly speaking, a few days. It does not run months, it does not run years.

Number two, there are specific injuries found on the child on a certain date. Now, I think the extent of the so-called prior injuries should be limited to that found on the child and any, you know, extrapolated testimony taking that—taking those injuries to somehow determine that this child was a battered child, and then to stretch from there to say that this battering caused her death, I think is too much of a leap. I think the facts show that on a specific date there was choking and gagging and she was brought down to the fire station.

What I'm saying is the battered child syndrome plays, I think, a limited role and certainly a—an irrelevant and immaterial role to this case. So to have an expert to come in and testify—testify as to the specific injuries found and what it means in terms of her death, fine, but to go into the general subject matter of battered child syndrome now, in this case, I think is not proper.

....

THE COURT: ... [S]ubject to foundation by Dr.—by the state and Dr. Schneider, I'll respectfully grant this motion, particularly with a nonjury setting. To me, lack of accident is important[.]

On May 23, 2001, Judge Town entered an order granting the BCS Motion.

Trial began on May 23, 2001, and the State presented its case. The State called Andy Verke (Verke), a Honolulu firefighter. Verke testified that on March 18, 1994, he was working at the Palolo Fire Station around 4:45 p.m. "when a vehicle pulled into the rear of the fire station." Verke said he heard someone yelling "help my baby" and responded by opening the rear door to the station. According to Verke, when the door was raised, a man ducked inside with a baby in his arms which he handed to Verke. Verke stated that the man who handed him the baby told him that the baby "was eating a doughnut, and then, she choked"; however, when Verke inspected the baby's mouth and airway, he did not see any food particles. As he held the baby, Verke noticed that "she was soaking wet," "extremely cold," and "purplish—face, eyes, lips." After checking and finding that the baby was not breathing, Verke began artificial respirations. Immediately thereafter, he checked for a pulse, could not find one, and began cardiopulmonary resuscitation (CPR). Verke continued CPR until the ambulance personnel arrived and took over.

The State called Dr. Paula Vanderford, who is licensed and certified in pediatrics and pediatric critical care and the Medical Director of the Pediatric Intensive Care Unit (PICU) at Kapiolani Medical Center (KMC). Dr. Vanderford was the attending physician when Natasha was brought to the PICU at around 6:40 p.m., March 18, 1994. Referring to a series of photographs taken after Natasha was admitted to the PICU, Dr. Vanderford testified that Natasha had "a small laceration above her left eye," "[a] small bruise or abrasion on her right cheek," "[d]iscreet bruises on the forehead, as well as on the left temporal region," "[a] circular burn on her left palm," "[b]urns ... distal to her left elbow," "[s]ome superficial abrasions on the upper abdomen," "[r]ight lower...