NO. 24925
On appeal, Alcaide contends that the circuit court erred in: (1) denying his motion to dismiss the charge of assault in the first degree, in violation of HRS § 707-710(1) (1993) (9) (Count III), inasmuch as the district court considered inadmissible hearsay evidence in finding that probable cause supported the charge; (2) admitting his inculpatory statement to police, inasmuch as the statement was involuntary and the product of custodial interrogation; and (3) denying his motions for mistrial, inasmuch as prosecutorial misconduct prejudiced his right to a fair trial. Alcaide further contends that the sentencing court erred in: (1) denying his motion to strike expert testimony at his sentencing hearing, inasmuch as the expert was without authority to either (a) conduct the psychological assessment upon which the expert testimony was based, or (b) testify at the sentencing hearing; and (2) sentencing Alcaide to consecutive terms of imprisonment, inasmuch as the sentence imposed was unconstitutionally cruel and unusual. Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we hold that: (1) inasmuch as Alcaide was never convicted of Count III, any procedural error in the district court's probable cause determination with respect to that Count was moot; (2) Alcaide's inculpatory statement was admissible, inasmuch as the circuit court did not clearly err in finding that the statement did not stem from police questioning so as to be the product of custodial interrogation, see State v. Naititi, 104 Hawai`i 224, 87 P.3d 893 (2004); (3) the circuit court did not abuse its discretion in denying Alcaide's motions for mistrial, inasmuch as the challenged prosecutorial misconduct was harmless beyond a reasonable doubt, see State v. Klinge, 92 Hawai`i 577, 994 P.2d 509 (2000); (4) the sentencing court did not plainly err in admitting expert testimony at the sentencing hearing, see generally State v. Jenkins, 93 Hawai`i 87, 997 P.2d 13 (2000); Hawai`i Rules of Penal Procedure Rule 52(b); and (5) the sentence did not constitute cruel and unusual punishment, see Jenkins, supra, or a plain and manifest abuse of discretion, see State v. Kumukau, 71 Haw. 218, 787 P.2d 682 (1990). Therefore,
IT IS HEREBY ORDERED that the judgment from which the appeal is taken is affirmed.
DATED: Honolulu, Hawai`i, December 3, 2004.
Robert D.S. Kim
for the defendant-appellant
Norbert Lee Alcaide
Dale Yamada Ross,
Deputy Prosecuting Attorney,
for the plaintiff-appellee
State of Hawai`i
1.
HRS §
708-836.5 provides, in pertinent part: "A person commits the offense of
unauthorized entry into motor vehicle if the person intentionally or
knowingly
enters or remains unlawfully in a motor vehicle with the intent to
commit a crime
against a person or against property rights."
2. HRS § 708-810(1)(c)
provides: "A person commits the offense of burglary in the first degree
if the person
intentionally enters or remains unlawfully in a building, with intent
to commit therein a crime against a person or against
property rights, and . . . [t]he person recklessly disregards a risk
that the building is the dwelling of another, and the
building is such a dwelling."
3. HRS § 707-715(1) provides:
"A person commits the offense of terroristic
threatening if the person threatens, by word or conduct, to cause
bodily injury to
another person or serious damage to property of another or to commit a
felony . .
. [w]ith the intent to terrorize, or in reckless disregard of the risk
of
terrorizing, another person[.]"
4. HRS § 707-716(1)(d)
provides: "A person commits the offense of terroristic
threatening in the first degree if the person commits terroristic
threatening . .
. [w]ith the use of a dangerous instrument."
5. HRS § 707-720(1)
provides, in pertinent part: "A person commits the offense of
kidnapping if the person
intentionally or knowingly restrains another person with intent to . .
. (c) [f]acilitate the commission of a felony or flight
thereafter; (d) [i]nflict bodily injury upon that person or subject
that person to a sexual offense; [or] (e) [t]errorize that
person or a third person[.]" 6. The applicable version of HRS
§ 707-732(1)(e) provided, in pertinent part: "A person commits the
offense of
sexual assault in the third degree if . . . [t]he person knowingly, by
strong compulsion, has sexual contact with another
person or causes another person to have sexual contact with the
actor[.]"
7. HRS § 705-500(1)(b)
provides: "A person is guilty of an attempt to commit a crime if the
person . . .
[i]ntentionally engages in conduct which, under the circumstances as
the person believes them to be, constitutes a
substantial step in a course of conduct intended to culminate in the
person's commission of the crime." 8. HRS § 707-701.5(1)
provides: "Except as provided in section 707-701, a person
commits the offense of murder in the second degree if the person
intentionally or
knowingly causes the death of another person."
9.
HRS § 707-710(1) provides: "A person commits
the offense of assault in the first degree if the person
intentionally or knowingly causes serious bodily injury to another
person."