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* * NOT FOR PUBLICATION * * *
NO. 25619
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee,
vs.
ASHFORD
MONTALVO, Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(FC-CR. NO.
01-2-0910(1))
SUMMARY DISPOSITION ORDER
(By: Moon,
C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Following a jury-waived trial, defendant-appellant Ashford Montalvo
appeals from
the judgment of conviction and sentence entered on January 8, 2003 by
the Family
Court of the Second Circuit, the Honorable Mary Blaine Johnston
presiding,
adjudging him guilty of and sentencing him for abuse of a family or
household
member, in violation of Hawai`i Revised Statutes (HRS) § 709-906
(Supp. 2002). (1) On appeal, Montalvo
contends that the circuit court abused its discretion in receiving an
audio tape recording of a
911 call [hereinafter, 911 tape] into evidence on redirect examination
because it
went beyond the scope of cross-examination. Montalvo also asserts that
the
introduction of the 911 tape into evidence violated this court's
holding in State
v. Duncan, 101 Hawai`i 269, 67 P.3d 763 (2003) (stating that,
generally, a party
cannot "offer in rebuttal evidence which was proper or should have been
introduced
in chief").
Upon carefully
reviewing the record and the briefs submitted by the parties and
having given due consideration to the issues raised and the arguments
presented,
we hold that, inasmuch as Montalvo objected to the introduction of the
911 tape
based on foundational and hearsay grounds, which are not raised on
appeal, he
waived the evidentiary objections that he now advances in this appeal. (2) See
State v. Matias, 57
Hawai`i 96, 101, 550 P.2d 900, 904 (1974). Accordingly,
IT IS HEREBY ORDERED that the family court's January 8, 2003 judgment
of
conviction and sentence is affirmed.
DATED: Honolulu,
Hawai`i, November 16, 2004.
On the briefs:
Edward K. Harada,
Deputy Public Defender,
for defendant-appellant
Artemio C. Baxa,
Deputy Prosecuting Attorney,
for plaintiff-appellee
________________________________________
No. 25619 State v. Montalvo
-- Summary Disposition Order
1. HRS § 709-906 provides in relevant part:
(1) It shall be unlawful for any
person, singly or in concert, to physically abuse a family or household
member or to refuse
compliance with the lawful order of a police officer under subsection
(4). The police, in investigating any complaint of
abuse of a family or household member, upon request, may transport the
abused person to a hospital or safe shelter.
For the purposes of this section, "family or household member" means
spouses or reciprocal beneficiaries, former spouses
or reciprocal beneficiaries, persons who have a child in common,
parents, children, persons related by consanguinity, and
persons jointly residing or formerly residing in the same dwelling
unit.
2.
Assuming, arguendo, that the evidentiary objections were properly
preserved, we note that, inasmuch as Montalvo
raised the matter of Welch's 911 call for the first time on cross
examination, the prosecution was entitled, on redirect
examination to develop the circumstances surrounding Welch's statement
to the responding police officer. See State
v.
Jackson,
81 Hawai`i 39, 47, 912 P.2d 71, 79 (1996); Hawai`i Rules of Evidence
Rule 611 (1993). Moreover, Montalvo's
reliance on Duncan in support of his
contention that the 911 tape constituted improper rebuttal evidence is
misplaced. Because the prosecution offered the disputed evidence in its
case-in-chief (as opposed to after the close of its case-in-chief
as was the circumstance in Duncan), the prosecution
did not violate the general rules regarding rebuttal evidence. See
Duncan, 101 Hawai`i
at 276, 67 P.3d at 775.