State v. Silva
| Decision Date | 18 January 2022 |
| Docket Number | CAAP-18-0000437 |
| Citation | 150 Hawai‘i 379,502 P.3d 59 (Table) |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Fred SILVA, III, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Kai Lawrence, for Defendant-Appellant
Brian R. Vincent, Deputy Prosecuting Attorney, for Plaintiff-Appellee
MEMORANDUM OPINION
Defendant-Appellant Fred Silva III (Silva) appeals from the Judgment of Conviction and Sentence entered on May 3, 2018, by the Circuit Court of the First Circuit (Circuit Court ).1 Silva was convicted of Murder in the Second Degree for the stabbing death of a woman with whom he had a relationship.
On appeal, Silva contends the Circuit Court erred by: not investigating an issue raised by a juror; determining evidence of Silva's prior bad acts was admissible; ruling rebuttal testimony from a forensic-pathology expert was admissible and within the scope of the expert's expertise; and not sua sponte striking or giving a limiting instruction regarding testimony elicited by defense counsel and objected to by the State, where the court sustained the State's objection. Silva further contends on appeal that his trial counsel was ineffective for eliciting testimony from Silva that he smoked methamphetamine and is a hypocrite.
We reject Silva's asserted points of error and we affirm his conviction.
The State of Hawai‘i (State) contends in this case that, on the morning of February 4, 2015, at an encampment at the. Tracks Beach Park (Tracks campsite) , Silva intentionally stabbed Calvine "Lei" Nakatani (Nakatani) in the back, causing her to bleed to death. The State presented the testimony of the following: Karyn Hoshino (Hoshino) , who says she witnessed Silva stab Nakatani; two emergency medical technicians (EMTs) who both responded to the scene and who testified that Nakatani told them Silva stabbed her, with one of the EMTs testifying Nakatani told her Silva would not let Nakatani call for help; and Dr. Christopher Happy (Dr. Happy), the Chief Medical Examiner for the City and County of Honolulu, who opined Nakatani died from a stab wound. The State contends Silva intended to stab Nakatani in the back because he was upset she had not returned to his tent after staying out all night.
Silva, testifying in his own defense, testified he was in a relationship with Nakatani, admitted that it was a "rocky" relationship, but denied intentionally stabbing her. Instead, Silva contends that, as he held a knife against Nakatani's back, she stood up and then fell back into a chair unconscious. Silva contends he failed to realize the knife had penetrated Nakatani because he believed Nakatani had fallen unconscious due to her poor health conditions and possibly being scared by the knife at her back.
Following a five-day trial, a jury convicted Silva of Murder in the Second Degree.
Under Hawai‘i Rules of Penal Procedure (HRPP) Rule 52(b), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Where substantial rights are not affected, however, "[a]ny error, defect, irregularity or variance ... shall be disregarded [as harmless]." HRPP Rule 52(a).
"The admissibility of evidence requires different standards of review depending on the particular rule of evidence at issue." State v. Cordeiro, 99 Hawai‘i 390, 403-04, 56 P.3d 692, 705-06 (2002) (citation omitted).
When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a "judgment call" on the part of the trial court.
"[A] trial court's balancing of the probative value of prior bad act evidence against the prejudicial effect of such evidence under HRE Rule 403 [ ] is reviewed for abuse of discretion." State v. Gallagher, 146 Hawai‘i 462, 470, 463 P.3d 1119, 1127 (2020) () (quoting Cordeiro, 99 Hawai‘i at 404, 56 P.3d at 706.
"[T]he general rule is that admissibility of expert testimony is a matter within the broad discretion of the trial judge, [whose] decision will not be overturned on appeal unless manifestly erroneous or clearly an abuse of discretion." State v. Matias, 74 Haw. 197, 203, 840 P.2d 374, 377 (1992) () (quoting State v. Murohy, 59 Haw. 1, 14, 575 P.2d 448, 457 (1978) ).
"[The Hawai‘i Supreme Court] has declared that ‘[t]he introduction of evidence in rebuttal and in surrebuttal is a matter within the discretion of the trial court and appellate courts will not interfere absent abuse thereof.’ " State v. Duncan, 101 Hawai‘i 269, 274, 67 P.3d 768, 773 (2003) (quoting Takayama v. Kaiser Foundation Hosp., 82 Hawai‘i 486, 495, 923 P.2d 903, 912 (1996) ) (second alteration in original).
When the denial of the right to effective assistance of counsel is raised, the question is: "When viewed as a whole, [was] the assistance provided [to the defendant] ‘within the range of competence demanded of attorneys in criminal cases[?]’ " State v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 500 (1986) (citations omitted). The defendant has the burden of establishing ineffective assistance of counsel and must meet the following two-part test: 1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense.
State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992) (emphasis added).
Silva argues for the first time on appeal that the Circuit Court should have sua sponte inquired into the possible prejudicial nature of unspecified papers a juror or jurors apparently sought to present to the court in the beginning stages of the trial. After the jury was empaneled but before opening statements were presented, the Circuit Court addressed the jury:
And I wanted to say another thing. We went through two and a half days of jury selection to get to the process where we have our jury and three alternates. So all of you were not excused, all of you were not deferred, and I believe someone, at least one of you have papers to present to me. I'm not going to look at it because it is too late to give me any papers to try to get excused from the jury. We went through two and a half days of jury selection with over a hundred jurors to get to this point so we need to get the trial started and underway.
(emphasis added). Silva did not object to the Circuit Court's refusal to review the papers. The record does not indicate which juror or jurors attempted to present papers to the court, nor does it contain a copy of the papers the juror or jurors attempted to raise with the court.
While the right to a "fair trial by an impartial jury is guaranteed" by the federal and state constitutions, State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991) (), "[t]he defendant bears the initial burden of making a prima facie showing of a deprivation that ‘could substantially prejudice [his or her] right to a fair trial’ by an impartial jury." State v. Furutani, 76 Hawai‘i 172, 181, 873 P.2d 51, 60 (1994) () (first citation omitted) (citing Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988) ()).
Although the right to an impartial jury is fundamental to the judicial system, Silva failed to raise any objection in the Circuit Court and did not advance a prima facie case that his right to an impartial jury would be violated by outside influences if the unspecified papers were not reviewed. Id. He made no attempt at trial to establish any grounds for possible prejudice if the court did not, at minimum, investigate the papers. Moreover, "[o]ne important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice." United States v. Kechedzian, 902 F.3d 1023, 1027 (9th Cir. 2018) (citation omitted). Here, the trial court noted there had been "two and a half days of jury selection with over a hundred jurors[.]" The defense thus had ample opportunity to address and raise any juror prejudice.
Given this record, we conclude there was no plain error by the Circuit Court.
Silva contends the Circuit Court should not have admitted evidence about his prior bad acts toward Nakatani because they only serve to demonstrate his propensity to stab her. The subject evidence consists of testimony from Nakatani's friend of 10 years, Hoshino, that approximately three months before Silva stabbed Nakatani, he told Hoshino Hoshino testified that Nakatani and Silva's relationship was "rocky," Silva was very possessive of Nakatani, and the last few months of their relationship was "off and on" and Nakatani was "trying to make it off."
Hoshino...
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