State v. Vacchelli
| Decision Date | 23 August 2016 |
| Docket Number | NO. CAAP-15-0000403,CAAP-15-0000403 |
| Citation | 383 P.3d 135 (Table),139 Hawai'i 32 |
| Parties | State of Hawai‘i, Plaintiff-Appellee, v. Brandon Vacchelli, Defendant-Appellant, and Joshua Vacchelli, Defendant |
| Court | Hawaii Court of Appeals |
On the briefs:
Daphne E. Barbee, for Defendant-Appellant.
Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
(
MEMORANDUM OPINIONDefendant-Appellant Brandon Vacchelli (Brandon) appeals from the “Judgment of Conviction and Sentence” entered on April 27, 2015 in the Circuit Court of the First Circuit1 (circuit court).
On appeal, Brandon contends the circuit court erred in: (1) allowing in prejudicial evidence; (2) denying Brandon's motion for acquittal; (3) giving a jury instruction on accomplice liability; (4) failing to instruct the jury on self-defense and defense of others; (5) answering incorrectly a jury question regarding accomplice liability; and (6) sentencing Brandon to five years incarceration.
On May 12, 2013, Jessica Layco (Layco) and her boyfriend Tai Tang “Randy” Thai (Thai) were driving to their home in Makakilo with their two daughters after dinner. Going up Makakilo Drive, Layco noticed two cars tailgating their car. One of the cars sped up and cut in front of Layco and Thai's car. On the side of the residential street where Layco and Thai live, the two cars that had been tailgating them, had parked. Layco and Thai pulled over in front of them near the driveway of their home.
Layco and Thai exited the car telling their daughters to stay in the car. Layco and Thai approached the two cars, whose drivers had also exited their cars. The two drivers were brothers, Joshua Vacchelli (Joshua) and Brandon. Layco confronted the brothers, asking, “What is your guys' problem revving [your engines and] going up tailgating behind us so close like that?” Thai and Joshua began “exchanging words” and were “about to fight.”
As Joshua and Thai began to physically fight, Brandon was behind Layco, who put his hands on her to hold her down. Layco told Thai, Following her comments, Brandon let Layco go and Joshua “backhanded” Layco on the side of her face.
After checking on her daughters' safety, Layco felt someone grab her hand and say, The person who approached Layco was an off-duty reserve police officer named Michael Cho (Cho). Cho saw the fight happening and pulled over to intervene. Layco saw Cho walk over to the three men fighting, and then saw Joshua hit Cho across the head. Cho fell to his hands and knees, and Joshua began hitting Cho on his back and Brandon began kicking Cho on the right side of Cho's face.
Cho was taken to the hospital, where a doctor diagnosed him with hemorrhagic contusion, in other words, a bruise and bleeding in the brain
.
On May 23, 2013, Plaintiff-Appellee State of Hawai‘i (State) charged Joshua with assault in the second degree for actions against Cho, assault in the third degree for actions against Thai, and assault in the third degree for actions against Layco. The State charged Brandon with assault in the second degree for his actions against Cho.
On July 22, 2014, Joshua pled no contest to the charges against him. Joshua was sentenced to five years probation for the assault in the second degree charge, and one year for each assault in the third degree charge.
Brandon's trial began on January 21, 2015. The jury returned a guilty verdict on January 23, 2015.
At the sentencing hearing, the circuit court announced its intention to sentence Brandon to a term of imprisonment of five years. The circuit court entered the Judgment of Conviction and Sentence on April 27, 2015.
Brandon filed his notice of appeal on May 12, 2015.
“We apply two different standards of review in addressing evidentiary issues.” State v. Richie, 88 Hawai‘i 19, 36, 960 P.2d 1227, 1244 (1998)
. “Evidentiary rulings are reviewed for abuse of discretion, unless application of the rule admits of only one correct result, in which case review is under the right/wrong standard.” State v. Loa, 83 Hawai‘i 335, 349, 926 P.2d 1258, 1271 [ (1996).]
State v. Ortiz, 91 Hawai‘i 181, 189, 981 P.2d 1127, 1135 (1999)
.
When the defendant challenges admissibility of eyewitness identification on the grounds of impermissibly suggestive pre-trial identification procedure, he or she has the burden of proof, and the court, trial or appellate, is faced with two questions: (1) whether the procedure was impermissibly or unnecessarily suggestive; and (2) if so, whether, upon viewing the totality of the circumstances, such as opportunity to view at the time of the crime, the degree of attention, and the elapsed time, the witness's identification is deemed sufficiently reliable so that it is worthy of presentation to and consideration by the jury.
State v. Walton, 133 Hawai‘i 66, 83, 324 P.3d 876, 893 (2014)
(quoting State v. Araki, 82 Hawai‘i 474, 484, 923 P.2d 891, 901 (1996) ).
The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Keawe, 107 Hawai‘i 1, 4, 108 P.3d 304, 307 (2005)
. This court employs the same standard of review in reviewing a motion for a judgment of acquittal. Id.
Walton, 133 Hawai‘i at 83, 324 P.3d at 893
(brackets omitted).
It is the circuit court's duty and ultimate responsibility to ensure that the jury was properly instructed on issues of criminal liability. State v. Kikuta, 125 Hawai‘i 78, 90, 253 P.3d 639, 651 (2011)
. Kobashigawa v. Silva, 129 Hawai‘i 313, 320, 300 P.3d 579, 586 (2013).
Walton, 133 Hawai‘i at 83, 324 P. 3d at 893
. “The circuit court's response to a jury communication is the functional equivalent of an instruction.” State v. Haili, 103 Hawai‘i 89, 101, 79 P. 3d 1263, 1275 (2003) (brackets omitted) (quoting State v. Uyesugi, 100 Hawai‘i 442, 458, 60 P.3d 843, 859 (2002) ).
[A] sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions. And, generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment to the litigant.
State v. Henley, 136 Hawai‘i 471, 478, 363 P.3d 319, 326 (2015)
(quoting State v. Kona, 131 Hawai‘i 94, 101, 315 P.3d 720, 727 (2013) ).
Brandon contends the circuit court erred in admitting “the mug shot in a photographic line up of [Brandon],” and a police form “which contained prejudicial written statements from Layco[.]” Brandon sought to exclude these items in a motion in limine filed before trial. At trial, the circuit court admitted the State's Exhibit 13, which was a document with six black and white photographs in two rows of three, with handwritten indication marks on the photograph numbered “3.” The circuit court also admitted the State's Exhibit 12, which was a statement signed by Layco indicating that she selected “photograph number 3,” and that the person she selected “punche[d] the police officer and caused the police officer to fall to the ground & he also punched my boyfriend & backhanded me on the right side of my face.”
Brandon argues that because he was not charged with assault of Layco or Thai, the admission of Layco's statement was an admission of “other acts of misconduct or crimes” prohibited by Hawaii Rules of Evidence (HRE) Rule 404(b)
(Supp. 2015).2 We reject Brandon's argument because the photographic lineup was not introduced “to prove the character” of Brandon or “to show action in conformity therewith.” Instead, the photographic lineup was introduced to show that Layco identified Brandon as a perpetrator to the police two days after the altercation.
Brandon additionally argues that the photographic lineup should have included Joshua because there were misdemeanor assault charges against Joshua for assaulting Layco and Thai. Brandon concludes that “[t]his could prejudicially have mislead the jury into believing [Layco] properly identified [Brandon] as the assailant for all three assaults.” Brandon also argues that “[t]hese Exhibits were extremely prejudicial as they cast [Brandon] in the light of a suspect and should not have been allowed as they were unduly suggestive.”
This court has used a three-part test to determine whether the admission of police photographs at trial was proper:
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