State v. Liuafi, 7562
| Decision Date | 18 February 1981 |
| Docket Number | No. 7562,7562 |
| Citation | 623 P.2d 1271,1 Haw.App. 625 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Liuafi LIUAFI, Jr., also known as Junior Liu Matatia, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. An offer of proof cannot be denied as remote or speculative because it does not cover every fact necessary to prove the issue. If it be an appropriate link in the chain of proof, that is enough.
2. Not all errors require reversal. A constitutional error is ground for reversal, unless the reviewing court is able to conclude, from the record as a whole, that the error was harmless beyond a reasonable doubt.
3. When presented with two inconsistent verdicts, the appellate court may, unless prejudice is shown, affirm one and reverse one.
4. When the State seeks to introduce into evidence the results of a breathalyzer test in a criminal prosecution outside the ambit of HRS § 321-161, it must establish as a foundation that (1) the machine was in proper working order at the time of the test; (2) the correct chemicals were used; (3) the accused was not allowed to put anything in his mouth for 15 minutes prior to the test; and (4) the test was administered by a qualified person in the proper manner.
5. Determination whether defendant's execution of H.P.D. Form 81 is sufficient to show a valid waiver of his rights to counsel and to remain silent depends on whether, considering the defendant's age, background and intelligence, there has been a knowing, intelligent and voluntary relinquishment of those rights.
6. An intentional attempt to murder a person by using one's vehicle as a weapon is not a violation of HRS § 291C-12.
Stanford H. Nakamoto, Honolulu, (Riccio M. Tanaka, Deputy Public Defender, Honolulu, on the opening brief), for defendant-appellant.
Lee T. Nakamura, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before HAYASHI, C. J., and PADGETT and BURNS, JJ.
Liuafi Liuafi, Jr., (hereinafter Liuafi) appeals from a conviction of attempted murder, in violation of Hawaii Revised Statutes (HRS) §§ 705-500 (1976) and 707-701 (1976), and of failure to render assistance, in violation of HRS § 291C-12 (1976). He alleges that 1) the trial court committed reversible error in not allowing defense counsel to cross-examine the complaining witness regarding a possible civil suit against Liuafi; (2) the trial court erred in admitting into evidence the results of a breath test without a proper foundation; (3) the trial court erred in finding that Liuafi had waived his rights to counsel and to remain silent; (4) it was unconstitutional to prosecute Liuafi for failure to render assistance; (5) it was error to convict Liuafi of both offenses; and (6) it was error not to instruct the jury on state of mind as an element of the offense of failure to render assistance.
According to the testimony of the State's complaining witness, Donald Hoover, the incident in question happened as follows. Hoover, a 23-year-old Canadian tourist, went to the Sizzler Steak House at Kalakaua Avenue and Ala Moana Boulevard a little after 12:30 a. m. on January 12, 1979, to get some food to bring back to his hotel room. Carrying the food, he left the restaurant and started to walk across the rectangular parking lot toward his hotel. When he was about eight feet into the parking lot, a fast moving car pulled up in front of him. The driver yelled at him and said something like, "Look out, ass hole, or I'll run you over." Hoover identified Liuafi as the driver. Hoover ignored the comment and walked around the side of the car. As he got to the back of the car, somebody in the car yelled out, "Hey, come back here." Hoover walked back to the passenger side of the car and somebody inside asked, "Would you like to buy some dope." Hoover laughed and answered, "I got some" and started walking back past the back of the car. When he got about ten feet behind the car, the driver jumped out, came toward him and started yelling at him. Another person got out from the passenger side of the car. Hoover, by then thinking that he was going to be beaten, was trying to make up his mind whether to fight back or just to run. He was turning to leave when he was struck. The food fell. He was hit again and fell. Then there were a couple of people kicking him. He covered up his head. He didn't know how long he was kicked. He was left lying there. He heard the car door slam. He got up on his knees. He was ten to fifteen feet behind the car with his back to it. He was going to crawl between some parked cars. Looking over his shoulder, he saw the backup lights of the car turn on. The car, moving backward, hit him in the back. He went underneath the car, which did not continue backward in a straight line, but rather inscribed a tight half-circle, so that at the end of its arc, the front of the car was facing very nearly opposite its original direction. The car passed over Hoover so that when it stopped its backward circular movement, he was facing the front of the car, positioned between the car and the driveway, which exits onto Ala Moana Boulevard. Hoover tried to crawl away, but his legs would not work properly. He thought that he had been run over by accident and that his assailants were just in a hurry to get away. So he got up on his knees, put his hand over his head and started waving at the car. The car came straight at him, striking him in the chest. He was on his knees at the time. He went down underneath the car. He thought he had blacked out momentarily at that point. When he "sort of (came) to", the tire of the car on the passenger side was coming straight for his face. He reached up and got hold of the side of the door of the car and pulled himself up. He tried to pull himself out from under the car but there wasn't time. He put one arm down across his chest and the tire pinned his arm and his chest. The tire didn't go over him. The other tire seemed to go spinning on the loose rocks on the pavement, but the one he was pinned under did not. The car stopped and backed up a little. The car went ahead again. It dragged him across the parking lot and out onto Ala Moana Boulevard. While he was being dragged, one arm was "hung up on something"; he couldn't get it loose. When the car went down the driveway onto the street, his arm came loose. He started rolling and came out rolling from behind the car. He ended up in the middle of the street. One shoe was gone. He did not have any clothes on his chest. He was lying on the pavement. He brought his knees up to his chest and managed to get up on his knees. He could not move any further.
On cross-examination, Hoover agreed that in a three-page written statement prepared on January 23, 1979, he had not mentioned the waving of his hand above his head prior to the second impact. He also agreed that his testimony about these events might contain a mistake, but said that he could not be mistaken about being run over twice.
Also on cross-examination, defense counsel attempted to elicit information from Hoover as to whether he had contemplated and/or filed a civil suit against Liuafi. The trial court sustained the prosecution's objection and disallowed this line of cross-examination:
Mr. Ito (defense counsel): Mr. Hoover, isn't it true, that when you gave this statement on January 23, 1979, that you had already retained the private attorney to sue Mr. Liuafi?
Mr. Nakamura (prosecutor): Objection, your honor. Irrelevant.
The Court: Objection is sustained.
Mr. Ito: Your honor, may we approach the bench?
The Court: Yes.
(Bench conference with reporter present)
Mr. Ito: Your Honor, I believe I can go into this collateral area to show bias by the witness. If there is another pending lawsuit; I think that it's proper to go into this area because he does have a financial interest in the outcome of the case.
The Court: What is the connection as far as was the attorney present when this statement was made or ...
Mr. Ito: A representative from his office was present when the statement was made, not Mr. S(c)hutter himself, but a representative from his office, who was a paralegal.
The Court: Well, unless it can show a clear basis or relevance, at this point, I won't permit this testimony regarding any other lawsuit.
Mr. Ito: O.K. Thank you.
Liuafi asserts that the trial court erred in precluding cross-examination of Hoover as to a civil suit against Liuafi arising out of the same incident giving rise to the criminal prosecution. He argues that a witness's potential financial interest in the outcome of a criminal case is probative of bias and therefore credibility.
The State responds by contending that the trial court was within its discretion in denying Liuafi the opportunity to pursue the above line of questioning because the offer of proof was legally insufficient. The State argues that because Liuafi failed to offer and prove the proposition that the judgment of a criminal conviction is admissible evidence in a subsequent civil action arising out of the same transaction, 1 Liuafi did not satisfy the rule of law that an offer of proof, properly presented, should inform the court of the legal theory under which the evidence offered is admissible, citing Mad River Orchard, Inc. v. Krack Corp., 89 Wash.2d 535, 536, 573 P.2d 796, 797 (1978).
We believe that the offer of proof was sufficient and that it was error not to allow the witness to answer the question. The credibility of a prosecuting witness in a criminal case is always relevant, and cross-examination directed toward revealing possible biases, prejudices or ulterior motives of the witness is a proper and important function of the constitutionally protected right of cross-examination. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). See Smith v. State of Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Alford v. United States, 282...
To continue reading
Request your trial
-
78 Hawai'i 383, State v. Okumura
...of the witness is a proper and important function of the constitutionally protected right of cross-examination. State v. Liuafi, 1 Haw.App. 625, 630, 623 P.2d 1271, 1275 (1981). In Liuafi, the Intermediate Court of Appeals (ICA) concluded that "the trial court erred in not allowing the defe......
-
88 Hawai'i 407, State v. Christian, 20804
...the HRS § 701-109 violation, we reverse Jumila's conviction and sentence on the HRS § 134-6(a) charge. Cf. State v. Liuafi, 1 Haw.App. 625, 644, 623 P.2d 1271, 1283 (1981) (where defendant's convictions of both attempted murder and failure to render assistance violated HRS § 701-109(1)(c) b......
-
85 Hawai'i 462, State v. Fukusaku
...relied upon hair and fiber evidence. See, e.g., State v. Edwards, 81 Hawai'i 293, 296, 916 P.2d 703, 706 (1996); State v. Liuafi, 1 Haw.App. 625, 634, 623 P.2d 1271, 1277 (1981). In State v. Wilkins, 1 Haw.App. 546, 622 P.2d 620 (1981), the ICA noted that trial courts have broad discretion ......
-
88 Hawai'i 19, State v. Richie
...prostitution in the second degree, i.e., the conviction with the lesser penalty. The ICA apparently did so in State v. Liuafi, 1 Haw.App. 625, 623 P.2d 1271 (1981), a case involving inconsistent findings of fact in violation of HRS § 701-109(1)(c). The ICA affirmed the defendant's convictio......