State v. Feliciano

Decision Date05 July 2005
Docket NumberNo. 26273.,26273.
Citation115 P.3d 648
PartiesSTATE of Hawai`i, Plaintiff-Appellee, v. Hal FELICIANO, Defendant-Appellant.
CourtHawaii Supreme Court

Phyllis J. Hironaka, Deputy Public Defender, on the briefs, for defendant-appellant. Hal Feliciano.

Mark Yuen, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ.; and ACOBA, J., Dissenting.

Opinion of the Court by DUFFY, J.

Defendant-appellant Hal Feliciano appeals from the Circuit Court of the First Circuit's judgment of conviction filed on November 19, 2003, the Honorable Richard K. Perkins presiding. Feliciano shot his cousin, Alex Stoesser, in the eye with a .22 caliber revolver. The circuit court convicted Feliciano on three counts: (1) attempted murder in the second degree (Hawai`i Revised Statutes (HRS) §§ 705-500, 707-701.5, and 706-656) [hereinafter, attempted murder in the second degree]; (2) place to keep pistol or revolver (HRS §§ 134-6(c) & (e)) [hereinafter, place to keep]; and (3) carrying, using or threatening to use a firearm in the commission of a separate felony (HRS §§ 134-6(a) & (e)) [hereinafter, use of a firearm]. Feliciano was sentenced as follows: (1) life with the possibility of parole and a three-year mandatory minimum term of imprisonment1 for count one; (2) ten years for count two; and (3) twenty years for count three. On appeal, Feliciano argues that the circuit court erred by: (1) violating the Hawai`i Constitution's double jeopardy clause when it (a) punished him for conduct by sentencing him to a mandatory minimum term of imprisonment pursuant to § 706-660.1 and then punishing him a second time for the same conduct with convictions of use of a firearm and place to keep, and (b) convicted him of attempted murder, place to keep, and use of a firearm; and (2) concluding that neither the HRS § 704-400 defense (entitled "Physical or mental disease, disorder, or defect excluding penal responsibility") or self-defense applied. We disagree with Feliciano, and affirm the circuit court's final judgment, guilty convictions, and sentences in all respects.

I. BACKGROUND
A. Event

On June 1, 2002, Stoesser (Feliciano's cousin) went to Delia Feliciano's (Feliciano's mother) [hereinafter, Delia2] house and gave her $600 ($100 was owed to Delia and $500 was a loan). Feliciano lived at Delia's house as well. Later that night Delia claimed that the money Stoesser gave her was missing; Stoesser (who had been drinking) refused to believe Delia and began arguing with her; Feliciano asked Stoesser to leave. The next morning, Stoesser returned to the Feliciano residence.

There was conflicting testimony as to what happened at this point. Delia testified that Feliciano told her that he would pay Stoesser the money and that when Stoesser and Feliciano left in Stoesser's truck they were going to an ATM to withdraw money. Feliciano testified that he went with Stoesser to throw away a couch and visit Stoesser's co-worker Graham3 (who Stoesser also suspected of stealing the money). Stoesser testified that when he arrived at the house that morning Delia asked him to take Feliciano out of the house because they could not handle him. In any event, later that same morning, Feliciano and Stoesser left the Feliciano residence in Stoesser's truck. Sometime before noon, Feliciano and Stoesser got into an argument (while in Stoesser's truck) and Stoesser referred to Feliciano as a "stupid mother fucker." Stoesser saw that Feliciano had a gun and asked him "Why you bring the gun stupid mother fucker, you wanna shoot me?" Stoesser eventually stopped the car and told Feliciano to get out, saying "Get the fuck out stupid. What, you going shoot me? What's the problem?" A few moments later, Feliciano shot Stoesser in his right eye. After shooting Stoesser, Feliciano walked approximately two-tenths of a mile west of the shooting until he was disarmed and arrested by police who had been called by a witness to the shooting. After the police arrested Feliciano, they brought him to the Pearl City Police Station where his hands were processed for gunshot residue. Police Officer Chase Inamine testified that while the evidence specialist was processing Feliciano's hands Feliciano said, "I shot with my right."

B. Feliciano's History of Mental Illness

In 1979, Feliciano suffered a mental breakdown while he was stationed in Germany with the United States Air Force. Feliciano was diagnosed as suffering from schizophrenia and was discharged from the Air Force in 1981 as 100% disabled due to his mental illness. Feliciano's mental illness has been characterized as a delusional belief that he possesses the supernatural power to control and transform others through the use of "supernatural devices" that may be invoked by using a television remote control. Feliciano also believed that he was one of several people: Hal, Halice, and Opel.4 After his discharge from the Air Force, Feliciano received the prescription drug Risperdal to treat his mental illness; Risperdal is designed to control delusions, hallucinations and aggressiveness. During the months prior to the shooting Feliciano appeared to be taking less than his prescribed dosage of Risperdal. For some time prior to June 2, 2002, Feliciano was smoking marijuana regularly and using methamphetamine at least once a week.

C. Trial, Convictions, and Sentences

On June 10, 2002, the State of Hawai`i [hereinafter, prosecution] filed a complaint charging Feliciano with three counts: (1) attempted murder in the second degree in violation of HRS §§ 705-500 (1993),5 707-701.5 (1993),6 and 706-656 (1993);7 (2) place to keep in violation of HRS § 134-6(c) and (e) (Supp.2004);8 and (3) use of a firearm in violation of HRS § 134-6(a) and (e).9 The complaint also alleged that, under the attempted murder in the second degree charge, Feliciano was subject to sentencing in accordance with HRS § 706-660.1 (1993)10 for use of a firearm while engaged in the commission of a felony.

On September 10, 2002, the circuit court appointed a three-member panel of examiners to determine Feliciano's fitness to proceed and the extent of Feliciano's penal responsibility. The appointed examiners were Richard Kappenberg, Ph.D. (a clinical psychologist), David Stein, M.D., Ph.D. (a psychiatrist), and Terence Wade, Ph.D. (a clinical psychologist). Reports from all three doctors were admitted into evidence, but only Dr. Kappenberg and Dr. Stein testified at trial.

On January 2, 2003, Feliciano filed a notice of intention to rely on a defense of mental disease, disorder or defect, pursuant to HRS § 704-400 (1993).11 Feliciano's jury-waived12 trial commenced on February 27, 2003 and concluded on March 6, 2003.

Dr. Kappenberg testified that he reviewed Feliciano's Oahu Community Correctional Center (OCCC) records and his records at Adult Probation (which provide information about past hospitalizations, police reports and Veterans' Administration records) and conducted a one and a half hour examination of Feliciano at OCCC. Based on the records and his examination, Dr. Kappenberg opined that Feliciano was suffering from a paranoid type of schizophrenia and polysubstance dependence at the time of the alleged offense. Dr. Kappenberg further opined that at the time of the offense, Feliciano's cognitive capacity was not impaired and that he was able to understand the difference between right and wrong. Dr. Kappenberg based his opinion on Feliciano's description of the event (which comported with the description given by other witnesses) and the fact that Feliciano specifically indicated that there was no connection between his beliefs (his supernatural ability to control others with a secret device) and his behavior that day. When asked about Feliciano's behavior when he was arrested by the police, i.e., telling the police to take care of his gun and that he shot with his right hand, Dr. Kappenberg stated that this showed that Feliciano was aware of what happened, that he participated, and that he was oriented and responding to his environment. Dr. Kappenberg was also asked about Feliciano's behavior when he was being questioned by the police, i.e., identifying himself as "Opel" and believing that he was in Germany; Dr. Kappenberg stated that this showed that Feliciano's mental functions had decreased significantly. Dr. Kappenberg opined that this decrease may have been caused by the stress of being arrested and placed in jail.

On cross-examination, Dr. Kappenberg was questioned as to why he did not conduct a further examination of Feliciano after reading the report about Feliciano's interview with the police. Dr. Kappenberg replied that there was no need for a further examination because there was no apparent connection between what Feliciano said at his police interview and his description of Feliciano's behavior at the time of the alleged offense. Dr. Kappenberg was further questioned as to whether Feliciano was taking his medication at the time of the incident; he responded that the records were unclear, but that Delia said that he would sometimes slip in taking his medications and Feliciano stated that he had not taken his medication for a long time, but was not clear as to how long this was. Dr. Kappenberg also testified that he was aware of Feliciano's history of mental illness dating back to 1979 and 1980.

Dr. Stein testified that he reviewed Feliciano's records13 and examined Feliciano at OCCC for about an hour; based on his examination and review of records, Dr. Stein believed that Feliciano was "psychotic at the time of the offense" and that the psychosis was "most probably amphetamine-induced psychosis." Dr. Stein opined that the defendant's appreciation of the wrongfulness of his conduct was not substantially impaired at the time of the alleged offense. Dr. Stein's opinion was based on: his examination of Feliciano, where Feliciano told him...

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