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

996 P.2d 268

93 Haw. 63

STATE of Hawai`i, Plaintiff-Appellee, v. Bernd FRIEDMAN, Defendant-Appellant.

No. 22504.

Supreme Court of Hawai`i.

April 6, 2000.

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.

Opinion of the Court by MOON, C.J.

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) [hereinafter, petty misdemeanor assault],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.

I. BACKGROUND

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:

[DEFENSE COUNSEL]: [Defense counsel] appearing on behalf and with Bernd Friedman, Your Honor, who is present.

The record should reflect that we are in receipt of a written complaint in this matter. We're going to waive an oral reading of the charge, enter a plea of not guilty.

I spoke with Mr. Friedman prior to this hearing, I did explain to him the differences between a jury trial and judge trial.

My understanding is, his intent is to waive that right to jury trial. And we would ask that this matter be set for both pre-trial and trial here in the Family Court.

THE COURT: All right, Mr. Friedman. Do you understand what [Defense counsel] has just told me?

[FRIEDMAN]: Yes, I do.

THE COURT: You're going to enter a plea of not guilty to the complaint in this case, you're also going to give up your right to a jury trial; is that correct?

[FRIEDMAN]: Yes.

THE COURT: And, you understand what a jury trial's about?

[FRIEDMAN]: Yes.

THE COURT: And can you explain in your own words what you understand that to mean?

[FRIEDMAN]: A jury trial is where the outcome of the—the results of whether it's guilty or not is to be determined by 12 adults instead of a judge.

The COURT: So by waiving that right means that your case will be decided by a judge, the judge alone is to decide your guilt or innocence.

[FRIEDMAN]: Yes, Your Honor.

THE COURT: Is your decision to waive your right to jury trial something you thought about and decided to do yourself voluntarily.

[FRIEDMAN]: Yes.

THE COURT: All right. Since a waiver to jury trial has been entered, this matter will be set for trial here in the Family Court....

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:

[The court is] satisfied that the state has established the following elements of [sic] beyond a reasonable doubt as to the complaint in this case; that on February 13th of 1999 the defendant, Bernd Friedman, was a family or household member, was living with his wife Sachi Friedman, that on the date within their residence Mr. Friedman did approach his wife who, apparently, was outside of the unit or house.... He observed her to be [sic] about to smoke some marijuana.

He was upset because he considered that to be a problem within their family. He got a hold of the bag of marijuana, dumped it out over the lanai railing or dumped it out. At that point he was, perhaps, pushed by his wife. Whether or not that occurred there really is not important. He, as a result of her acts, did grab a hold of her by the hair, pulling her back into the house or the apartment.

Thereafter, [the court] think[s] the testimony of both party [sic] would indicate that they began hitting and slapping each other, they were angry, both of them were angry at what was going on. Apparently there was a real marital problem between the two of them.

At this point [the court] agree[s] with the prosecution's argument that the acts of the party [at] that point would constitute mutual affray.

There is no indication Mr. Friedman had to take any acts, as far as pulling his wife by the hair and/or slapping her or in any way continue to pull at her or push at her that was necessitated by her acts.

Rather, the Court finds that these two people got angry at each other, they got out of control, they simply were hitting each other, slapping on each other. That does constitute mutual affray.

The court further finds that the acts of the defendant did cause some pain to his wife.

She testified when she was pulled by the hair it did hurt a little bit, and she also indicated that being grabbed and slapped after it was over, she did feel some pain from that; although, it didn't appear to be something that resulted in any serious injuries to her. But, nevertheless, those acts would constitute abuse.

There being no defense or justification from the acts of the defendant in this case, a mutual affray by case law has clearly been determined not to be any type of justification for abusive acts in this case, the pain that was caused by Mr. Friedman towards his wife Sachi.

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.

II. STANDARDS OF REVIEW

A. Constitutional Question

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. "We answer questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard." 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).

B. Plain Error

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...