State v. Silva

• Citation: 75 Haw. 419,864 P.2d 583
• Decision Date: 14 December 1993
• Docket Number: No. 16313,16313
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Fred SILVA, III, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 583

864 P.2d 583

75 Haw. 419

STATE of Hawaii, Plaintiff-Appellee, v. Fred SILVA, III, Defendant-Appellant.

No. 16313.

Supreme Court of Hawai'i.

Dec. 14, 1993.

Syllabus by the Court

1. On appeal, the test for a claim of insufficient evidence is whether, viewing the evidence in the light most favorable to the State, there is substantial evidence to support the conclusion of the trier of fact. It matters not if a conviction under the evidence as so considered might be deemed to be against the weight of the evidence so long as there is substantial evidence tending to support the requisite findings for the conviction.

2. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to reach a conclusion.

3. Where the record on appeal is insufficient to demonstrate ineffective assistance of counsel, but where: (1) the defendant alleges facts that if proven would entitle him or her to relief, and (2) the claim is not patently frivolous and without trace of support in the record, the appellate court may affirm defendant's conviction without prejudice to a subsequent Rule 40 petition on the ineffective assistance of counsel claim.

4. When an ineffective assistance of counsel claim 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?"

5. 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.

6. This court will not judge the assistance provided the defendant ineffective solely by hindsight.

7. Defense counsel's tactical decisions at trial generally will not be questioned by a reviewing court. Lawyers require and are permitted broad latitude to make on-the-spot strategic choices in the course of trying a case.

David Kuwahara, on the briefs, Hilo, for defendant-appellant.

Doraine F. Meyer, Deputy Prosecuting Atty., on the briefs, Honolulu, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

Defendant-appellant Fred Silva III was convicted of Assault in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-710. ¹ Silva appeals his conviction claiming that there was insufficient evidence adduced at trial to convict him of the offense charged. Silva also claims that he was rendered ineffective assistance of counsel at trial. We affirm.

Based on the record as it now stands, Silva has failed to demonstrate that he was rendered ineffective assistance of counsel; however, we conclude that: (1) Silva has alleged facts that, if proven, would entitle him to relief, and (2) Silva's claim is not patently frivolous and without trace of support in the record. Therefore, although we affirm Silva's conviction, we do so without prejudice to the filing of a Hawaii Rules of Penal Procedure (HRPP) Rule 40 petition on the ineffective assistance of counsel claim.

I. BACKGROUND

On the evening of January 14, 1991, a fight involving Silva occurred at the home of Leila Kaehu (Leila). During the fight, Audrey Simpson, Leila's boyfriend, was injured. On January 18, 1991, a preliminary hearing was held in the District Court of the First Circuit to determine whether there was probable cause to commit Silva to the circuit court for jury trial on the charge of assault in the first degree, a class B felony.

At the preliminary hearing, Gina Miranda, a witness to the alleged assault, testified that she saw Silva "chop" Simpson on the back of the neck with an open hand while Simpson was struggling with another man, Leila's son, Lincoln Kaehu (Lincoln). Miranda further testified that Silva had continued to punch and kick Simpson while Simpson was prone on the floor. Under cross examination, Miranda admitted that her eyesight was "bad."

Simpson testified that he was attempting to keep Lincoln from striking Lincoln's girlfriend, Lokelani Farias, when Silva hit him on the back and then beat him into unconsciousness. Simpson described his injuries as including a fractured right orbit (the bone surrounding the eye socket), a concussion, facial lacerations, lost teeth, temporary loss of vision in his right eye, and continued blurred vision. Simpson further testified that he had consumed approximately four mixed drinks in approximately three hours while at the Kaehu home on the day of the incident, and that he had also smoked some marijuana earlier in the day. The district court concluded that there was probable cause and committed Silva's case to the circuit court for jury trial.

Silva was initially represented by the State Public Defender's (PD) Office. However, in May 1991, the PD moved to withdraw as Silva's counsel, explaining that Silva no longer wanted to be represented by the PD. On June 10, 1991, Frank Fernandez was appointed counsel for Silva by the circuit court.

At a trial-scheduling conference on November 15, 1991, Fernandez indicated that he was having difficulty locating a defense witness, and that he would therefore have to file a motion to continue the trial. On December 5, Fernandez filed a motion to continue pre-trial motion deadline. In his supporting affidavit Fernandez stated that he "need[ed] more time to locate the witness for the defendant." The motion came on for hearing on December 10, but Fernandez, without explanation, failed to appear, and the court denied the motion without prejudice. On December 16, the eve of trial, during a conference with the prosecuting attorney and the court, Fernandez again indicated that he needed more time to look for a defense witness, and that he intended to file another motion to continue the trial for one week. The court stated that the trial would not be delayed any longer.

In his opening statement at trial, which commenced on December 17, 1991, Fernandez told the jury that the defense would show that Simpson had been beating Lincoln when Silva came to Lincoln's aid, and that Silva had also defended himself from a subsequent attack by Simpson. Plaintiff-appellee State of Hawaii (the prosecution) called three witnesses: (1) Miranda; (2) Kale Kaehu (Kale), Lincoln's brother and Miranda's boyfriend; and (3) Simpson.

Miranda testified that she, Kale, their two children, Lincoln (Kale's brother), and Simpson (Lincoln's friend), all lived at Leila's house. On the afternoon and into the early evening of January 14, 1991, all of the aforementioned persons, along with several other friends and Farias (Lincoln's girlfriend), had been socializing at a nearby beach and later at Leila's home. All of the men had been drinking.

Miranda explained that she, her two children, Kale, and Farias had earlier gone to the store to buy dinner at approximately 7:00 p.m. to be consumed at Leila's home. She stated that Lincoln and Farias began arguing heatedly and that Lincoln subsequently turned belligerent. She testified that Lincoln "slammed" Farias up against the refrigerator, and that Lincoln also pushed her (Miranda) and struck her two-year-old son in the face.

Miranda related that she then called for Simpson, who was lying down in one of the bedrooms. Simpson came into the room where the disturbance was taking place and attempted to calm Lincoln down. Miranda testified that Simpson grabbed Lincoln in a sort of "bearhug" in order to get him under control. She stated that the two men fell over onto a couch, at which time Kale jumped in to separate them and get them off the couch because he feared that his infant daughter was on the couch underneath the struggling men.

Miranda further testified that after Kale separated the two men, Simpson again "bearhugged" Lincoln, who was still acting violently. At this point, Silva, who had been lying on a sofa or on the floor in an adjoining room, came to where the two were struggling and "chopped" Simpson on the back of the neck. Silva then grabbed Simpson by his long ponytail, and the two men started falling to the ground with Silva punching. After Silva regained his footing, he proceeded to kick a prone and defenseless Simpson. Miranda stated that Simpson never struck at Silva and that Silva was silent throughout the episode. Eventually, both the police and an ambulance were called, and Simpson and Lincoln were taken to the hospital for treatment.

Kale testified that he had been outside in the garage with friends when he heard the argument start up between Lincoln and Farias. He went into the house and tried to calm Lincoln down; however, Lincoln began threatening Kale, asking him to fight. They struggled briefly; Lincoln then broke free and "started chasing the girls around the table." At that point, Simpson emerged from the bedroom and also tried to calm Lincoln down, eventually grabbing him around the arms. Kale related that he "threw them off" the couch for fear of his daughter being crushed. When he realized that she was not on the couch, he went back outside in search of her. However, before he left the room, he saw Silva walk up to the struggling pair and strike Simpson on the back of the neck. He saw nothing subsequent to that one blow because he had gone outside immediately thereafter.

Simpson testified that he had been visiting his girlfriend, Leila, and her family that day. He admitted to having consumed approximately four mixed drinks between 4:00 and 6:30 p.m. He then went to lie down and rest in Leila's bedroom, but was soon roused by the sound of loud arguing voices. Simpson stated that when he came out of the bedroom, he saw Lincoln "arguing, fighting, going to hit [Miranda], one of the girls that was there, and I grabbed him, grabbed at him and tried to hold...