State v. Lafoga

• Decision Date: 27 April 2022
• Docket Number: CAAP-20-0000175, NO. CAAP-20-0000589
• Citation: 151 Hawai‘i 196,510 P.3d 1098
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Brandon Fetu LAFOGA, Defendant-Appellant, and Ranier Ines, also known as Schizo, Defendant-Appellee State of Hawai‘i, Plaintiff-Appellee, v. Ranier Ines, also known as Schizo, Defendant-Appellant, and Brandon Fetu Lafoga, Defendant-Appellee
• Court: Hawaii Court of Appeals

151 Hawai‘i 196

510 P.3d 1098

STATE of Hawai‘i, Plaintiff-Appellee,

v.Brandon Fetu LAFOGA, Defendant-Appellant,andRanier Ines, also known as Schizo, Defendant-Appellee

State of Hawai‘i, Plaintiff-Appellee,

v.Ranier Ines, also known as Schizo, Defendant-Appellant,andBrandon Fetu Lafoga, Defendant-Appellee

NO. CAAP-20-0000175

NO. CAAP-20-0000589

Intermediate Court of Appeals of Hawai‘i.

APRIL 27, 2022

AS CORRECTED MAY 20, 2022

On the briefs:

William K. Li for Defendant-Appellant Brandon Fetu Lafoga

Kai Lawrence (Keith S. Shigetomi on the briefs) for Defendant-Appellant Ranier Ines

Stephen K. Tsushima Deputy Prosecuting Attorney for Plaintiff-Appellee

GINOZA, CHIEF JUDGE, LEONARD AND NAKASONE, JJ.

OPINION OF THE COURT BY NAKASONE, J.

This consolidated appeal¹ arises out of an underlying September 16, 2015 incident where the complainant Kele Stout (Stout ) was pistol-whipped, forced to drive at gunpoint, had his phone and wallet taken, then repeatedly beaten, including with a baseball bat, and shot in the face, torso, and buttock. Stout managed to escape and drive himself to Wai‘anae Coast Comprehensive Health Center, where he received treatment and survived.

Plaintiff-Appellee State of Hawai‘i (State ) charged Defendant-Appellant Brandon Fetu Lafoga (Lafoga ) via a July 20, 2016 Indictment with Attempted Murder in the Second Degree (Attempted Murder ) in Count 2; Criminal Conspiracy to Commit Murder in the Second Degree (Conspiracy to Commit Murder ) in Count 3; Carrying or Use of Firearm in the Commission of a Separate Felony (Use of Firearm in Separate Felony ) in Count 4; Kidnapping in Count 6; and Ownership or Possession Prohibited of any Firearm or Ammunition by a Person Convicted of Certain Crimes (Felon in Possession ) in Count 8. The State charged Defendant-Appellant Ranier Ines (Ines )² with Accomplice to Attempted Murder in Count 1; Conspiracy to Commit Murder in Count 3; Kidnapping in Count 5; and Robbery in the First Degree in Count 7. Following a jury trial, Lafoga was convicted of Attempted Murder in Count 2, Use of Firearm in Separate Felony in Count 4, and Felon in Possession in Count 8. Ines was convicted of Accomplice to Attempted Murder in Count 1. Following an extended term sentencing jury trial, Lafoga was sentenced to consecutive and extended terms in all counts, including a term of life imprisonment without the possibility of parole (life without parole ). Ines was also sentenced to an extended term of life without parole.

Lafoga's Appeal

In CAAP No. 20-0000175, Lafoga appeals from the February 20, 2020 Judgment of Conviction and Sentence, Notice of Entry, filed by the Circuit Court of the First Circuit (Circuit Court ).³ On appeal, Lafoga contends that: (1) the Circuit Court erred when it ordered that the jury would be "partially anonymous," where jurors were referred to by number and not by name; (2) Lafoga's trial counsel was ineffective for failing to object to the Circuit Court's procedure referring to jurors by number and not by name; (3) the Circuit Court erred in refusing to instruct the jury on included offenses for Attempted Murder; (4) the Circuit Court erred in denying Lafoga's Motion to Dismiss for Violation of Hawai‘i Rules of Penal Procedure (HRPP ) Rule 48 (Rule 48 Motion ); (5) the Circuit Court's extended sentencing jury instruction for Attempted Murder that "characterized a non-extended sentence" as a "possible life term of imprisonment" and an extended sentence as a "definite life term of imprisonment" was erroneous and prejudicial; and (6) the Circuit Court erred in determining that an extended sentence under Hawaii Revised Statutes (HRS ) § 706-661(1) was applicable to the offense of Attempted Murder.

Ines's Appeal

In CAAP No. 20-0000589, Ines appeals from the September 2, 2020 Amended Judgment of Conviction and Sentence, Notice of Entry, filed by the Circuit Court. On appeal, Ines contends that: (1) without prior notice, the Circuit Court, sua sponte , empaneled an anonymous jury which violated Ines's right to a fair trial; (2) the Circuit Court erred in refusing Ines's included offense instructions for Accomplice to Attempted Murder and Conspiracy to Commit Murder; (3) the language in the Circuit Court's extended sentencing jury instruction regarding the sentence being extended from "a possible life term of imprisonment" to a "definite life term of imprisonment" was prejudicially "deceptive and misleading;" and (4) the Circuit Court imposed an illegal sentence because HRS § 706-661 does not provide for an extended term of imprisonment for Attempted Murder.

We hold that the Circuit Court's modified jury selection procedure of referring to the jurors by number and not by name, and of withholding the jurors' names and information from the defendants but not from their counsels, did not constitute plain error under the circumstances of this case. We also conclude that the extended sentencing statute, HRS § 706-661(1), does apply to Attempted Murder in the Second Degree. As to all other challenges raised by both defendants, we conclude there was no error. For the reasons explained infra, we affirm.

I. BACKGROUND

The following evidence was adduced at the jury trial held from November 18, 2019 to December 3, 2019.

Complainant Kele Stout

Stout testified that on September 16, 2015, he and Ines were co-workers at a custom countertop company, working on an installation job in downtown Honolulu. Initially, Ines "got mad" at Stout because Stout "wouldn't teach him how to seam." Later, when preparing to leave the job site in the work van, Ines accused Stout of going through his bag. As Stout drove them into the street, Ines grabbed Stout's right wrist from the steering wheel, pulled out a gun from his backpack, and pistol-whipped Stout in his eyebrow. As blood started gushing, Ines ordered Stout to drive out towards Wai‘anae. Throughout the drive toward Wai‘anae via Nimitz Highway, Ines said multiple times that if Stout tried to do anything, "I'll shoot you." Ines held on to Stout's right wrist during the entire drive, while aiming the gun at Stout's face. As Ines "made a bunch of phone calls," he controlled Stout by holding his wrist, with the gun in his lap. On one of the phone calls, Stout heard Ines say that "he has the rent money." Ines searched Stout's wallet which was on the dashboard, took Stout's debit card, and asked Stout for his "PIN number" to which Stout complied. Ines grabbed Stout's phone from the dashboard, and smashed it on the dashboard, breaking it. Stout later testified that he heard Ines tell someone "we're coming to your house, and be ready because this person needs a beating[.]" Ines told Stout, "I'm not going to kill you, we're just gonna beat you and let you go[.]"

As they reached the beginning of Ma‘ili, Ines ordered directions to Stout until they ended up off Farrington Highway, at a house in the Sea Country area. A Polynesian male, later identified as Lafoga, brought Stout from the van into the garage, closed the garage door, asked Stout what he did to make Ines so mad, and then tied Stout's wrists behind his back. Stout was seated in the middle of the garage when Ines and Lafoga began beating Stout –– Ines with his fists, and Lafoga with a baseball bat. Stout was struck in the back of his head, and blood gushed everywhere. Stout believed someone grabbed a towel and put it over his head, and they continued beating him. It appeared to Stout that they just went until they ran out of energy, because the hits became softer, and it "sounded like they were winded, breathing harder."

Ines and Lafoga then went through the door in the garage into the house, where Stout could barely hear their conversation. Stout testified that he heard Ines, Lafoga, and a third male voice discussing what to do next, and he heard Ines order somebody to take care of the body. Stout also testified that he heard Ines say, "I'm gonna go leave and pick up my girlfriend, take care of him[,]" and Stout could only assume what that meant. Stout acknowledged that it was possible that he told the police, "I still didn't think I was going to get shot or anything." When Ines came through the doorway to the garage and saw Stout wiggling, he yelled out that Stout was trying to escape, and Ines and Lafoga both ran in and beat Stout again. Stout was thrown into the back of the work van, and Ines slammed the van door shut. Lafoga got into the driver's seat and then drove off with Stout, but without Ines.

At some point, Lafoga stopped the van somewhere, got out and started talking to a person he met there, bragging about what he and Ines had done to Stout, and then telling the person to go look through the back window. Stout saw a figure come to the back window of the van, but he didn't get a good look at anyone.

Later, Lafoga started driving again, and told Stout that he "[will] be the first person that he is going to kill ...." Stout told Lafoga to let him go, but Lafoga replied he couldn't do that. Lafoga later parked the work van in a quiet spot where no one was around, then climbed into the back of the van, and shot Stout in the face. Stout felt like his face was caving in; the blood felt like lava, and it was very painful. At some point, Stout realized he "wasn't dead yet," and he was inhaling and swallowing blood. Stout managed to break out of the restraints and rolled onto his stomach. Lafoga had started driving again, but when he realized Stout was still alive, he turned back and shot Stout again, this time in the torso and buttock. Stout believed Lafoga was going to keep shooting him the more he made noise, so he tried to muffle the sounds of his breathing and coughing. Stout heard Lafoga making phone calls, trying to find somebody to give him a ride; Stout also heard Lafoga explain to someone that he was trying to burn the van with Stout's body still in it. When Lafoga stopped the van and exited, Stout could hear the engine still running; Stout then jumped into the driver's seat, locked the doors, and...